Hong Kong Television Network Ltd v. Chief Executive in Council
Read the full judgment text of HCAL 3/2014 on BabelCite. This High Court CFI judgment was delivered on 24 April 2015.
1. This is the applicant’s judicial review challenging the decision (“the Decision”) of the Chief Executive in Council (“the CEIC”) dated 15 October 2013 refusing the applicant’s application for a domestic free television licence (“FTV licence”).
Cited by 12 cases · Cites 13 cases
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HCAL 3/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3 OF 2014 ________________
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________________ JUDGMENT A. INTRODUCTION 1.This is the applicant’s judicial review challenging the decision (“the Decision”) of the Chief Executive in Council (“the CEIC”) dated 15 October 2013 refusing the applicant’s application for a domestic free television licence (“FTV licence”). 2.The application is premised upon a number of grounds, including that the Decision was made in breach of a stated Government policy, the statutory discretion entrusted in the CEIC in granting a FTV licence is unconstitutional, the Decision was tainted with various procedural unfairness, and it was in any event irrational. I would elaborate on each of these grounds later when I deal with them in this judgment. 3.To put these grounds in proper context, I would first set out the background and statutory framework relevant to this application. B. BACKGROUND 4.In 1998, the Government carried out a major review of television policy. Following the review (where a report was published), the Government announced its decision to open up the television market. 5.In this respect, in relation to domestic free television (“FTV”), the Government stated publicly and to the Legislative Council (“the LegCo”) that, given the broadcasting policy objectives to broaden programme choices, encourage innovation, maintain Hong Kong’s competitiveness and enhance its position as a regional broadcasting hub, under the new licensing regime to be introduced under the Broadcasting Bill, there would be no limit on the number of domestic FTV licences to be issued.[1] 6.In line with this published policy, the Broadcasting Ordinance (Cap 562) (“the BO”) was enacted in July 2000. 7.Under section 5 of the BO, any person who provides, among others, domestic FTV programme services[2] in Hong Kong without a licence commits an offence which is punishable by a fine and imprisonment. In other words, a person who wishes to provide such services must obtain a licence in accordance with the BO. 8.Sections 8, 9, and 10 of the BO set out the licensing regime for FTV. They provide as follows:
9.Thus, under sections 8(1), 9 and 10(1) of the BO, the CEIC is vested with the discretion to decide whether to grant a licence (subject to any conditions as the CEIC thinks fit to impose) to an applicant for providing FTV programme services. 10.The statutory provisions have however not specified any limit on the number of FTV licences to be issued by the CEIC. Hence, any interested applicant may apply to the Communications Authority[3] (“the Authority”) for the grant of a FTV licence at any time. Once an application is received, the Authority shall consider such an application and make recommendations thereon to the CEIC. Having considered the Authority’s recommendations, the CEIC may, in the exercise of his discretion, grant a FTV licence to an applicant. 11.To facilitate any interested party to apply for a FTV licence, the Authority has since 2002 promulgated a “Guidance Note for Those Interested in Apply for Domestic Free Television Programme Service Licences in Hong Kong” (“the Guidance Note”). The Guidance Note sets out, among others, the various criteria for assessment of a licence application that the Authority will look at before making a recommendation to the CEIC. 12.Although the BO was enacted in 2000, it was until 2009 and 2010 that the Government received respectively three applications for FTV licence. At all material times before then, Hong Kong has two incumbent licensees (namely, ATV and TVB) providing FTV programme services. 13.The three new applicants are:
14.The Authority had processed these FTV licence applications and assessed each of them having regard to (a) the relevant statutory requirements in the BO; (b) assessment criteria set out in the Guidance Note; (c) public opinion; (d) whether each of the applicants had agreed to comply with the proposed licence conditions that might be imposed; and (e) possible impact of new FTV licences on the local television programme service market. 15.Other than conducting a public consultation exercise from July to September 2010, the Authority also engaged a consultant[7] (“the Consultant”) to provide a report on the competition implications on new entrants to the local FTV market. The Consultant provided its report (“the first report”) in April 2010. 16.It also provided a stage two report in April 2011 (“the second report”) to advise the Government and the Authority on the potential for additional domestic FTV licences to be made available in Hong Kong. 17.In the second report, the Consultant was asked to and provided its assessment, among others, of the relative competitiveness of the three applicants for licence in four areas,[8] namely, (a) financial capability; (b) investment plan; (c) programming strategy and capability; and (d) technical soundness. The Consultant has put HKTVN second amongst the three applicants in all areas, except programming strategy and capability, where HKTVN ranked last.[9] Insofar as the overall competitiveness analysis is concerned, the Consultant again ranked HKTVN second amongst the three applicants.[10] 18.At the same time, after analysing the general revenues generated in the domestic FTV markets and the then current business plans submitted by the applicants, the Consultant was of the opinion in this report that the market might not be able to sustain a total of five players (ie, the two incumbent licensees and three new licensees).[11] 19.On 13 July 2011, the Authority submitted its recommendations to the CEIC for his consideration. The Authority recommended that approval‑in‑principle (“AIP”)[12] be given for the grant of FTV licence to all the applicants. In its letter dated 13 July 2011, the Authority also set out in details its assessment of the applications in support of the recommendations. 20.In particular, in making the recommendations:
21.Upon subsequent requests by the Authority, the Consultant also provided an updated analysis of the second report on 10 January 2012 and a report of supplementary analysis on the competition assessment on the new applications for FTV licence on 6 February 2012. 22.The CEIC considered and discussed the applications and the recommendations at various Executive Council (“ExCo”) meetings held respectively in January, February, and May 2012. 23.After 22 May 2012, following the procedural steps as approved by the CEIC, the Commerce and Economic Development Bureau (“the CEDB”) further:[13]
24.Submissions were subsequently received from the interested parties. The Authority was then asked by the SCED to make responses to these submissions. 25.In July 2012, a new Chief Executive (“CE”) was elected in Hong Kong. 26.In the meantime, in relation to the FTV new licence applications, ATV and TVB had respectively applied for leave to apply for judicial review seeking to challenge the consultation process and prevent the CEIC from proceeding to finally consider the applications. There had also been other events affecting the consideration of HKTVN’s application which are not relevant to this judicial review. 27.When all these matters had been resolved, the Authority’s recommendations and the FTV licence applications were then further considered by the CEIC in various ExCo meetings held in January, February, March, May, September, and October 2013. 28.At the meeting on 15 October 2013, after deliberation, the CEIC decided, among others, that:
29.The CE then publicly announced these decisions. 30.On 6 January 2014, HKTVN applied for leave to apply for judicial review challenging the decision (ie, the Decision) to reject its application. Leave was granted on papers on 9 January 2014. C. THIS JUDICIAL REVIEW 31.HKTVN raises a number of grounds in support of this judicial. I would consider each of them in turn below. C1. The Decision is not in adherence to a stated Government policy 32.Under this ground, essentially HKTVN complains that the Decision to reject its licence application is made in departure from or not in adherence to the Government’s publicly stated policy (“the Policy”) made in 1998 after the review. 33.In substance under this complaint,[14] HKTVN says:
34.The CEIC has not disputed that there is the Policy. He however disputes the meaning of the Policy ascribed to it by HKTVN, and says that the Decision was made consistently with the Policy. 35.It is also important to note that it is not the CEIC’s position that there was a change of the Policy. 36.It is trite that the formulation of policies is a proper course for the provision of guidance in the exercise of an administrative decision: R (Alconbury Developments Ltd) v Secretary for State for the Environment Transport and the Regions [2003] 2 AC 195 at paragraph 143, per Lord Clyde. 37.Moreover,it is well settled that an administrative decision made in departure from a stated policy by reason of the decision‑maker’s misinterpretation of its meaning or misunderstanding of the policy itself is defective and unlawful, and can be quashed in a judicial review. This is so as it could be regarded as the decision‑maker having ignored or no regard to the relevant policy (which he ought to have) in making the decision: Wong Wei Man v The Amusement Games Centers Appeal Board (unreported, HCAL 775/2000, 2 November 2000) at pp 10‑11, per Stock J (as he then was); Cathay Pacific Airways v Flight Attendants Union (unreported, HCAL 19/2005, 25 August 2006) per Hartmann J (as he then was) at paragraphs 13‑14. 38.Further, what is the meaning of a policy is a matter for the court to construe it objectively in accordance with the language used and in its proper context, and should not be construed as if they were statutory or contractual provisions: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 at paragraphs 18‑19; Wong Wei Man, supra, at p 11. 39.Given these legal principles and in light of the above contentions raised by the parties, the issues that I need to consider under this ground are:
C1.1. The meaning of the Policy 40.The statement expressing the Policy is first made in the Government’s press release on 2 February 1998 at paragraph 3 as follows:
41.Then, perhaps more pertinently, the Policy statement was made to the LegCo in the LegCo Brief on the 1998 Review of Television Policy at paragraphs 12 and 20 as follows:
42.Although statements to similar effect have been repeatedly made by the Government in various contexts and documents over the years, for the present construction purposes, I think it is most pertinent to look at the above two documents. This is so as it is common ground that the Policy was formulated and publicly made in 1998 and there has been no change to the Policy since then. 43.It is the CEIC’s contentions that the statements “no artificial limits should be set for the number of players in the field” (as stated in the press release), and “there would be no limit on the number of domestic free licences to be issued” (as stated in the LegCo Brief) meant and were intended to mean that “the previous ceiling which arose as a result of physical or technological constraints on longer existed”.[15] 44.Mr Yu SC (leading Ms Eva Sit) for the CEIC submits that the CEIC’s construction of the Policy is correct when it is looked at in the following proper context:
45.With respect, I am unable to accept the submissions. 46.As borne out by the above quoted texts from the press release and LegCo Brief, the Policy was made in the context of, and to facilitate, the stated objectives of:
47.These underlying objectives of the Policy have been repeatedly emphasised by the Government over the years. In particular, the Government had explained these unchanged objectives as follows:
48.Looked against these objectives and the context underlying the Policy, I do not agree that the Policy was meant and intended to mean only the removal of a limit on the number of licences that can be granted imposed by reason of the previous technological constraint as contended by the CEIC. 49.In my view, these underlying publicly stated objectives of positively opening up the TV market, promoting fair and active competition in the TV market generally, having a market‑driven approach in the licensing regime, broadening viewers’ choice of programmes, and promoting Hong Kong as a regional hub of television broadcasting, are more consistent with the Policy being one that there would be generally no pre‑set limit on the number of FTV licences that can be granted, unless a limit is necessitated by reason of technological or physical constraints. This is particularly so as:
50.Mr Yu however also contends that HKTVN’s construction of the meaning of the Policy cannot be correct as it would be inconsistent with the clear and wide statutory discretion given to the CEIC. 51.It is submitted that the BO has expressly made clear that the CEIC has an unfettered discretion whether to grant a licence or not, and the CEIC needs only to consider the Authority’s recommendations but is not bound by them. On the other hand, HKTVN’s construction of the meaning of the Policy means effectively that as long as an applicant satisfies the requirements of the Guidance Note, it must be granted a FTV licence. Thus (Mr Yu further says), HKTVN’s said contended meaning of the Policy, if accepted, will be directly contrary to the statutory scheme, as it would fetter the CEIC’s statutory discretion. As such, the Policy could not have been a lawful policy, as it is trite that a policy is only lawful if it does not go beyond the terms and purposes of the relevant power or if it seeks to fetter the decision‑maker’s relevant discretion. See: De Smith, supra, paragraph 5‑080; EC Gransden v Secretary of State for the Environment (1987) 54 P & CR 86 at 93‑94, per Woolf J; Asburn et al, Judicial Review Principles and Procedure, paragraphs 21.05 and 21.32; Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corp [2009] HKLRD 620 at 630‑1. 52.Similarly, Mr Yu submits that HKTVN’s said construction of the Policy is also directly contradictory to and inconsistent with the Guidance Note, which has expressly provided that, whilst there is no pre‑set ceiling on the number of licences to be issued,[18] mere compliance with the Guidance Note does not entitle the applicant to the grant of a licence and the final decision rests with the CEIC.[19] 53.Again with respect, I am not persuaded by these submissions. 54.These arguments are premised fundamentally on the submissions that HKTVN’s case is that the Policy of no pre‑set limit means as long as an applicant satisfies all the requirements under the Guidance Note, a licence has to be granted. 55.However, I do not understand HKTVN’s case is as such. This is confirmed by Mr Coleman SC (leading Mr Jin Pao) for HKTVN, who submits at the hearing that HKTVN’s case is that under the Policy, there would not generally be a pre‑set limit on the number of licences that can be granted in assessing any applications for FTV licences. What it means is that an application (which say has met all the basic requirements as provided in the Guidance Note) cannot be rejected effectively on the ground and by the reason that there is already a fixed number of licences that would be granted. The CEIC, in considering the applications, is however still entitled in the exercise of his discretion to reject an application on other reasons, for example say qualitative reasons targeted at the subject application and wider public interest considerations. It is only that, given the Policy, the CEIC cannot reject an application effectively by reference to the reason that there is already a pre‑fixed number of licences that the Administration would grant. 56.I agree with Mr Coleman. It is not HKTVN’s case as expressly stated in the Form 86 that the Policy means an application must be granted as long as it satisfies all the requirements in the Guidance Note. I also do not find that to be a logical and inevitable consequence of the meaning that there cannot be a pre‑set limit on the number of licences that would be granted. As submitted by Mr Coleman, the Policy only means that an application would and should not be rejected on the basis of there being a decided or pre‑fixed number of licences that can be granted. It does not mean that it cannot be rejected on the basis of other justifiable reasons not based on there being a fixed number of licences that can be granted. 57.I will therefore also reject Mr Yu’s above contentions. 58.I therefore conclude that, on a proper construction, the meaning of the Policy of no pre‑set limit is that, other than physical or technological constraints, the Administration would not effectively reject an application for FTV licence on the basis of or by reference to the reason that there is already a pre‑fixed number of licences that could be granted. 59.Having concluded on the meaning of the Policy, I now turn to look at the next question as to whether the Decision was made in departure from that Policy. C1.2 Whether the Decision made was in adherence to the Policy 60.Under this question, one has to consider whether the basis underlying the Decision to refuse HKTVN’s licence application is effectively that there was a pre‑fixed number of FTV licences that the Administration had decided to issue. 61.As mentioned above, after studying the Consultant’s reports, the Authority on 13 July 2012 submitted its recommendations to the CEIC recommending that AIP be given to grant FTV licence to all three applicants, including HKTVN. It is also the Authority’s view that all three applications had met the requirements set out in the Guidance Note. 62.For the purpose of this judicial review, the CEIC has disclosed all the memoranda and minutes of those relevant ExCo meetings[20] leading to the Decision. The SCED has also filed an affidavit to explain the background and events leading to the Decision. 63.After reading these minutes and evidence (which are not in any controversy), the bases upon which the CEIC decided to refuse HKTVN’s applicant can be summarised as follows:
64.In my view, the above bases objectively looked at show that the Decision was made by the CEIC in substance by reference to the reason that there was a pre‑fixed a number of FTV licences that can be granted. This is so as:
65.The Decision is therefore in my view made not in adherence to the Policy. 66.The Administration is of course entitled to change her policy, subject to complying with various criteria deemed as necessary by the law.[23] However, it is not the CEIC’s position in the present case that there is a change of policy. 67.In the premises, I would quash the Decision on the basis that it was made in departure from the Policy and remit the same to the CEIC for reconsideration in light of the Policy. C2. Legitimate expectation 68.It is more convenient to consider this ground after my above conclusion on the ground of Policy. 69.The applicable principles on legitimate expectation have been laid down by the CFA in Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1 at paragraphs 91‑99, perLi CJ. They can be summarised as follows:
70.Under this ground, it is HKTVN’s contention that, by reason of the Policy, it enjoyed a substantive legitimate expectation from the time when it submitted its FTV licence application on 31 December 2009 onwards that:
71.HKTVN contends that its legitimate expectation was frustrated by the Decision. This is so as:
72.I agree with these submissions. 73.Given the court’s above construction of the Policy’s meaning, I agree that HKTVN had a legitimate expectation that its licence application would not be rejected on the basis that there would be a pre‑fixed number of licences to be granted. It would also give rise to the expectation as formulated by HKTVN stated above. 74.Mr Yu’s contention is that HKTVN did not have a legitimate expectation premised on the CEIC’s arguments on what he understood to be HKTVN’s meaning of the Policy as mentioned above — an argument which I have rejected above. Hence, I would similarly reject the CEIC’s contentions on the lack of a legitimate expectation. 75.Mr Yu also argues that even if there was a legitimate expectation, it is at most a procedural (in contrast to a substantive) one, since it is accepted by HKTVN that the Policy could be changed. 76.This is however a distinction without substance for the present purpose. As observed by the CFA in Ng Siu Tung, supra, although the government is generally entitled to change its stated policy, it is subject to the requirement that she still has to give regard to that legitimate expectation premised on a published policy in making the relevant decision and to explain why she does not give effect to it. 77.In the present case, given that it is the CEIC’s position that there was no change of policy, and given the court’s conclusion that he had misconstrued the Policy’s meaning, it must be the case that he had not given a proper regard to the Policy and thus the legitimate expectation when making the Decision. Alternatively, if either there was a change of policy or that the CEIC had not followed the Policy in making the Decision, he must give an explanation as to why that was the case. This has also not been done. Whichever is the case, it has rendered the Decision unlawful in that respect. 78.For these reasons, I would also quash the Decision on this ground, and remit it to be reconsidered by the CEIC by taking into account the legitimate expectation. C3. Procedural unfairness 79.HKTVN relies on a number of bases to support the ground that the Decision is tainted by procedural unfairness. They are: (a) the CEIC failed to seek the views of the Authority; (b) HKTVN was precluded from amending its application; (c) the CEIC has failed to give reasons for the Decision; and (d) the CEIC’s reliance on the Consultant’s reports was flawed. 80.I would deal with these bases one by one. C3.1 Failure to seek the views of the Authority 81.Under this ground, Mr Coleman’s arguments run as follows:
82.I am unable to accept these submissions. 83.It is correct that the CEIC has a statutory obligation under section 10 to take into account the Authority’s recommendations in making the decision whether to grant a FTV licence. However, this must be understood also in the context that the CEIC has an unfettered discretion in making the decision, including not accepting the said recommendations. This has also been expressly made clear in the Guidance Note. 84.In the present case, as rightly submitted by Mr Yu, in the Authority’s recommendations, it has (a) given its opinion that sustainability should be left to the market to decide, and hence there was no need to take a cautious approach; and (b) decided not to rank the applicants for the reasons set out therein. The CEIC disagreed with these and decided (a) to adopt the gradual and orderly approach in light of his concern on the sustainability of a total of five players in the market (if all three new applications were approved); and (b) as such, to rank the applicants. Subject to the question (which I have concluded above) of this approach amounting to a departure from the Policy, the CEIC was fully entitled to come to these views in disagreement with the Authority’s recommendations. 85.HKTVN’s above contentions under this ground, if correct, would amount to requiring the CEIC to seek the Authority’s further opinion or recommendations every time he disagrees with the Authority’s already submitted recommendations. This cannot be right in the context of the CEIC’s unquestionable discretion to do so. 86.The CEIC is of course also entitled to seek further views from the Authority when he thinks necessary to do so on questions that he believes he requires the relevant assistance from the Authority. Other than questions where the statute has specified requiring the views from the Authority, what amount to relevant factors that would require the Authority’s assistance is also within the CEIC’s discretion to decide subject to the test of Wednesbury unreasonableness. See: R v Somerset County Council ex p Fewings [1995] 3 All ER 20 at 32; Re Findlay [1985] AC 318 at 333‑334, per Lord Scarman. 87.In the present case, given the Authority’s views in the Authority’s recommendation mentioned at paragraph 84 above, which the CEIC disagreed, I agree with Mr Yu’s submissions that it would not serve any useful purpose for the CEIC to ask the Authority to express a view again on the gradual and orderly approach and its impact on the application. At the least, it cannot be said to be Wednesbury unreasonable for the CEIC to regard as irrelevant and thus not necessary to seek the Authority’s views again on these questions. 88.I would therefore reject this ground as a basis to support this judicial review. C3.2 HKTVN precluded from amending its application 89.By a letter dated 14 May 2013, the CEDB informed all the three applicants (including HKTVN) that the CEIC was considering introducing the gradual and orderly approach, and indicated that the CEIC might not necessarily approve all three applications, while not precluding the possibility of allowing more FTV operators as when appropriate. It then invited each of the applicants to make written representations by 4 June 2013 as to why its application should be allowed in the event that the CEIC was not to allow all the applications. For that purpose, the CEDB disclosed to the applicants copies of all the Consultant’s reports. In this letter, the CEDB however stated that the applicants were not allowed to amend, revise or modify their existing applications as submitted. If the written representations amounted to such amendments, revisions or modifications, the CEIC would regard them as fresh applications, and would be disregarded for the purpose of considering the existing submitted applications. 90.HKTVN then submitted a 49‑page written response as invited by the CEDB under this letter. In any view, the written response is a substantial document in support of HKTVN’s application in light of the suggested gradual and orderly approach and the scenario that less than three applications might be approved. It dealt comprehensively with matters relating each of the four areas assessed in the Consultant’s reports. It had also made submissions as to why a licence should be granted to HKTVN instead of the other two applicants. 91.In this ground, HKTVN now complains that, since the Government had in substance moved its goalpost by assessing the relative merits of the applicants under the gradual and orderly approach, it is procedurally unfair for the CEIC not to have allowed HKTVN to amend its submitted application in response to this change. 92.As mentioned, HKTVN was provided with an opportunity to respond to the changed approach by way of written response. Thus, in substance, HKTVN’s complaint is that it had not been provided with an adequate or proper opportunity to respond to the change of approach by way of amending its application. 93.The question is dependent on whether it can be shown that HKTVN was prevented from making a proper and full response to the changed approach only by way of a written response but not by amending or revising its application. This in turns in my view depends on whether it can be shown that HKTVN would have been able to put in matters of substance and significance that could only be made by way of amending or revising the application but not the written response. 94.However, HKTVN’s own evidence does not show that it would make any difference in substance in terms of what it would have been able to put in by amending its application than what it was already able to submit by way of the written responses. This is underlined by what is said by Mr Wong Wai Key at paragraph 10 of his 2nd affirmation as follows:
95.It is thus Mr Wong’s own evidence that what he would have wanted to put additionally and differently in the original application had he known about the gradual and orderly approach, he had effectively managed to do so in substance by stating them in the written response, other than what he has set out at paragraph 10(b) of the affirmation. That is about the possibility of inviting more senior and experienced management and expert personnel to join its management team. However, this element is irrelevant for the purpose of determining if there is any procedural unfairness leading to the Decision, as the Decision was not based on any purported relative weakness in HKTVN’s management team. 96.In the premises, I am not satisfied that there is any procedural unfairness in not allowing HKTVN to amend its application.[25] C3.3 Failure to give reasons 97.I can deal with this ground shortly. 98.Under this ground, HKTVN complains that the CEIC has failed to give adequate reasons for the Decision. 99.Although accepting that the CEIC is generally not required to give reasons for his decision, HKTVN submits that common law principles on fairness in the present circumstances require that reasons be given for the Decision.[26] 100.HKTVN says the following circumstances of the present case require the CEIC as a matter of fairness to give reasons for the Decision:
101.There is some force in HKTVN’s above submissions. However, the CEIC has by now filed evidence by way of affidavit and the relevant ExCo minutes (see above) to explain how he had come to make the Decision. The ExCo minutes are contemporaneous records of the reasons underlying the Decision. There is no reason not to accept them.[27] Mr Coleman also has not (rightly so I think) asked this court to treat these reasons as post justification. 102.In the circumstances, given that the evidence now filed in this judicial review enables HKTVN to lead a fully informed inquiry into the Decision, even if (without deciding that) the CEIC did have a duty to give reasons in the circumstances of the present case, this court will not in the exercise of discretion quash the Decision on the ground of inadequacy of reasons.[28] I will therefore also refuse this ground as a basis for judicial review. C3.4. Flawed reliance on the Consultant’s reports 103.HKTVN submits that the CEIC’s reliance on the Consultant’s reports is flawed because:
104.HKTVN further says, if the CEIC could properly rely on the reports, then the Decision was inconsistent and illogical with the CEIC’s apparent main concern on sustainability, since HKTVN was ranked second in the reports in terms of overall competitiveness. It is contended that the CEIC’s treating of “programming strategy and capability” with the most important weight among the four criteria could not have rendered the Decision one consistent with the main concern on “sustainability” given this overall competitiveness ranking. 105.I am unable to accept these contentions for the following reasons. 106.First, I accept Mr Yu’s submissions that although the reports could not take into account the VSD:
107.Second, HKTVN’s submissions on the growth of advertising revenues for the FTV market had been summarised and placed before the CEIC when he made the Decision. He was thus equipped with the relevant information, including contrasting information, in this respect in making the Decision. As rightly submitted by Mr Yu, the estimate on the overall advertising growth is not a matter of incontrovertible fact but a matter of prediction, and so even if the CEIC had preferred the Consultant’s view instead of HKTVN’s, that would still be within the range of reasonable choices open to the CEIC. 108.Finally, insofar as the complaint that the CEIC could not properly rely on the reports because (a) the Consultant would have prepared the reports differently if it had been informed of the departure from the Policy; and (b) there is an inconsistency between the claimed concern on sustainability and the overall ranking of HKTVN’s competiveness in the reports, I do not think it is now necessary or appropriate for me to decide on these grounds. This is so as I have concluded that the Decision was made in departure from the Policy and thus should be quashed and remitted back to the CEIC for reconsideration in light of the Policy. In the premises, the Consultant’s said observation becomes irrelevant, and the CEIC would in any event have to look at the matters again in the exercise of his discretion in the reconsideration. 109.I would also dismiss this ground for judicial review. C4. Constitutional challenge ground 110.Article 27 of the Basic Law guarantees that Hong Kong residents shall have, among others, freedom of speech, of the press, and of publication. 111.Article 39 of the Basic Law also provides that:
112.Article 16 of the Bill of Rights (“BOR”), in incorporating Article 19 of the ICCPR, provides relevantly that:
113.Thus, under these provisions of the Basic Law and BOR, freedom of expression can only be restricted “as prescribed by law” or “as provided by law” and for the purposes set out at Article 19(3) of the ICCPR. 114.The authorities show that the expressions “prescribed by law” used in Article 39(2) of the Basic Law and “provided by law” used in the BOR mandate the principle of legal certainty.[29] Moreover, for that purpose and in relation to restrictions on fundamental rights, it has been said that a law which confers discretionary power on public officials must give an adequate indication of the scope of that discretion,[30] and the law should be accessible to the persons concerned and formulated with sufficient precision to enable them to foresee to a degree that is reasonable in the circumstances the consequences which a given action may entail.[31] 115.HKTVN contends that the Decision is unconstitutional because:
116.I will look at these issues respectively. C4.1 Is the restriction prescribed by law 117.The CEIC (through Mr Yu) fairly accepts that the right to freedom of expression is engaged in this case as the publication through the means of airwave through FTV broadcasting is restricted by the need to apply for licence under the BO. Further, under the licensing system, whether a FTV licence would be granted or not is subject to the discretion conferred by the BO on the CEIC. 118.It is HKTVN’s contentions that there is no or insufficient publicly accessible guidance on the scope of the discretion that the CEIC can exercise under section 10 of the BO to determine whether to grant or refuse a FTV licence. In other words, there is no way for the public or an applicant, such as HKTVN, to properly foresee what criteria and consideration the CEIC would or may have in considering exercising that discretion. This is so as:
119.Mr Coleman further submits that the CEIC’s position that he does not have to give reasons for the relevant decision (which is also emphasised in the Guidance Note) highlights the said arbitrariness of the exercise of discretion under section 10. In support, counsel essentially relies on the authorities of Meltex, supra, and Glas Nadezhda EOOD, supra. 120.With respect to Mr Coleman, I do not agree. 121.In considering whether a subject restriction is “prescribed by law”, the following principles as submitted by Mr Yu are also relevant:
122.Moreover, in determining whether the said foreseeability of boundaries of risk can be achieved in the context of broadcasting, the court should also take into account the following considerations:
123.Bearing these principles in mind, I accept Mr Yu’s submissions that, in the present case, the “prescribed by law” requirement is satisfied by considering the provisions in the BO together with the Guidance Note. This is so as the scope of statutory discretion can reasonably be worked out with sufficient precision by reference to the following (which are all accessible to the relevant parties):
124.The above materials therefore provide the basis upon which the court can interpret sections 8(1) and 10(1) and determine whether the exercise of power is within or outwith the scope conferred by the statute. By the same token, a lawyer conversant in the principles of statutory interpretation would also be able to so advise his clients. 125.Thus, on the basis of the above materials, a reasonably competent lawyer would have advised HKTVN that its FTV licence application must address all the requirements set out in the BO and the Guidance Note to meet the minimum requirements. Further, such lawyer would also have been able to advise HKTVN that even if HKTVN had satisfied all the statutory and Guidance Note requirements, the CEIC still has a discretion to decide whether to grant it the licence, but that discretion has to be exercised in accordance with the purposes of the BO and public interest. Of course, the lawyer will not be able to advise HKTVN that it is bound to succeed or fail in its application, but that is (as stated above) not the test for precision. All that is required is the ability to identify some area of risk, so that the applicant will be able to plan and adjust its conduct accordingly. 126.Mr Coleman refers this court to Leung Kwok Hung, supra, at paragraphs 75‑78 to say that “public interest” is too vague as a concept to sufficiently guide the scope of a statutory discretion to make a relevant restriction achieving the necessary legal certainty. If Mr Coleman is saying that Leung Kwok Hung is authority to say as a matter of principle, “public interest” can never be a sufficient element as guidance to the exercise of discretion, I am unable to accept that. Whether sufficient legal certainty is achieved in relation to a subject statutory discretion must be determined in the context of the matter. In Leung Kwok Hung, the CFA was saying that the reliance on “public order” (order public) (which is in any event not the same in meaning as public interest) as a purpose by the Commissioner of Police to guide the exercise the relevant statutory discretion to restrict the right of peaceful assembly does not satisfy the constitutional requirement of “prescribed by law”. This is so as it (order public) being an abstract concept used at the constitutional level (taken from the ICCPR) is by itself alone inappropriate as a basis to gauge the actual exercise of discretion at the statutory level in the circumstances and context of that case. 127.This is very different from what we are looking at above and in the present case. The element of “public interest” in the present context is to be looked at in the area of FTV market and prescribed by the related statutory objectives. Moreover, the exercise of the CEIC’s discretion is further defined by the other indicia and elements outlined in the Guidance Note and provided in the BO, and not just “public interest”. These taken together provide adequate indication as to the area of risks. 128.As said above, the test of precision does not require absolute certainty. All that is required is that the advice be able to identify potential risks, so as provide a basis to guide the behaviour of the applicant. As observed by the court (in applying Sunday Times, supra) in Silver v United Kingdom, supra, at paragraph 88:
See also: Mo Yuk Ping, supra, at paragraph 68. 129.In this respect, it is pertinent to note that, as a matter of fact, HKTVN’s own lawyers similarly invoked the concept of “public interest” in their submissions and correspondence with the Government in support of HKTVN’s application.[37] It shows that HKTVN’s lawyers had no difficulty in understanding that public interest is the guiding factor in the CEIC’s exercise of discretion in this context and thus must be in a position to similarly advise HKTVN. 130.Moreover, the fact that there are no precedents in the present case does not undermine the above conclusion. The existence of case law would have provided an additional factor in favour of precision, but its absence does not mean that the boundaries of the area of risk cannot be identified by reference to first principles and the above materials. 131.Finally, HKTVN’s further reliance on Glas Nadezhda EOOD and Meltex to support its complaints that the restriction under the licensing system results in arbitrary interference of freedom of expression is also in my view not warranted. 132.This is so as these two cases are clearly distinguishable from the present case. 133.In Glas Nadezhda EOOD, the applicants applied for a broadcasting licence for a radio station with Christian religious programming for the subject region in Bulgaria. The applicants’ application was refused by the relevant authority, relying on the decision of the National Radio and Television Committed (“the NRTC”) that the proposed programming of the applicants did not satisfy NTRC’s published prescribed criteria. The subsequent judicial reviews brought by the applicants against the refusal in the domestic courts were also unsuccessful. The applicants then challenged the decision in the European Court of Human Rights (“the ECHR”) and claimed for damages, claiming that the refusal interfered unlawfully their freedom of expression as protected by the relevant Convention. 134.The ECHR allowed the application. In doing so, the ECHR held,[38] among others, that (a) the refusal to grant the licence was an interference with the applicants’ freedom to impart information as protected under Article 10 of the Convention; (b) the relevant licensing system organising broadcasting in the subject territories was permissible subject to meeting the requirement of “prescribed by law” provided under Article 10(2) of the Convention; (c) under the system, the grant or refusal of a broadcasting licence was premised on the applicants’ compliance with a number of criteria published by the NRTC, and these criteria were sufficiently accessible and precise to comply with the requirement of “prescribed by law”; (d) however, the ECHR should also examine whether the manner in which the NRTC applied them in the licensing process provided sufficient guarantees against arbitrariness; (e) in this respect, given that (i) the guidelines on broadcasting regulation produced by the Committee of Ministers of the Council of Europe clearly advised that all decisions must be duly reasoned and (ii) the applicants were never made aware of the full reasons for the refusal of their application, had not been given any minutes of the meeting where their application was considered, and the subject judicial review did not remedy the matter, this amounted to unlawful arbitrary interference with the applicants’ freedom of expression. 135.The gist of the ECHR’s ruling in that case is thus based on the failure to provide reasons to the applicants (given the guidelines on broadcasting regulation produced by the Committee of Ministers of the Council of Europe) but not on the fact that the relevant licensing scheme by itself lacked necessary clarity and accessibility. In particular, in Glas Nadezhda EOOD, there was no public hearing and no public consultation of any sort, and the public authority not only declined to provide any reasons for its decision but also chose not to comply with a court order requiring disclosure of the relevant minutes.[39] 136.In Meltex, the 2nd applicant (which established the 1st applicant company) ran another television company which broadcast news and current affairs programmes which were critical of the Government. That company was frequently harassed by government agents as well. A total of 11 licences were put up to tender, but the applicants’ tenders were unsuccessful. The applicants complained about a lack of reasons for rejecting their tenders. Proceedings for disclosure of the tender documents from the successful companies were dismissed. The applicants challenged the refusal to the ECHR for unlawful interference of their freedom of expression under the Convention and claimed for damages. 137.The ECHR allowed the application and held, among others, that there was a violation of the right protected under Article 10 of the Convention for lack of reasons for the refusal. This is so as (a) although the decisions of the licensing authority were based on the domestic Broadcasting Act, which defined the criteria on which the authority should exercise its power, the Act did not require the authority to give reasons for its decisions; (b) no such reasons were given by the authority in the refusal and the applicants and the public had no way of knowing the basis upon which the decisions to award licence were actually taken; (c) however, the guidelines on broadcasting regulation produced by the Committee of Ministers of the Council of Europe clearly advised that all decisions must be duly reasoned; and (d) viewed against these guidelines, without such reasons, there was a possibility that the decision would be arbitrary and it could not be said the interference was lawful.[40] 138.It thus immediately can be seen that the facts and challenges of these two cases are very different from the present case:
139.I therefore also reject HKTVN’s submissions that licensing system under the BO by itself results in arbitrary interference of freedom of expression. 140.For all the above reasons, I accept that the restriction imposed through the licensing regime rested with the CEIC’s discretion under the BO is one which is “prescribed by law” or “provided by law”. C4.2 Legitimate aim 141.The CEIC submits that the aim for the restriction relevant in the present case is that of public order (order pubic). 142.It is well established that the meaning of order public is wider than public order in terms of law and order. It is to be understood as a basis of restricting some specific rights and freedoms in the interest of the adequate functioning of the public institution necessary to the collectivity when other conditions are met. These include prescription for peace and good order; public health; esthetic and moral considerations, and economic order (such as consumer protection etc): Leung Kwok Hung, supra, at paragraphs 69‑71; HKSAR v Ng Kung Siu (1999) 2 HKCFAR 442, at paragraphs 457I‑460A. 143.It has been held that, in the context of broadcasting, prevention of disorder in telecommunications, protection of rights of others and control of the quality and balance of programmes are legitimate aims. See: Groppera Radio, supra, paragraph 69; Demuth v Switzerland (2004) 38 EHRR 20 at paragraph 37. Further, the Court of Appeal in Hong Kong has also accepted societal justification for a licensing system: Secretary for Justice v Ocean Technology Ltd [2009] 1 HKC 271 at paragraph 67. I accept that these considerations are directed at the collective interest of the community and thus fall within the scope of order public. 144.Given the undisputed wide pervasiveness and thus the widespread effect of FTV broadcasting on the public, the BO’s legislative purposes and objectives as mentioned above, the various criteria set out in the Guidance Note for assessing an application for FTV licence under the BO (including programme quality and balance), I also accept that the licensing system is, as submitted by Mr Yu, directed at protecting the interest of the community at large. For example, this can be illustrated by what Mr Edward To has said at paragraphs 22‑42 of his affirmation as follows:
145.For these reasons, I accept the CEIC’s submissions that, given the potential widespread effect of FTV broadcasting on the general public, the restriction through the licensing system is implemented to protect and balance the collective interest of the community at large, and thus for the permissible purpose of order public. C4.3 Proportionality 146.HKTVN’s challenge based on proportionality is targeted at the Decision itself but not the legislation (whether generally or specifically sections 8(1) and 10(1)). Although it is generally for the respondent to justify proportionality, the lack of even an assertion that the relevant legislative regime lacks proportionality may be taken as HKTVN’s acceptance that the licensing system imposed under the BO meets the proportionality test or that it cannot be so faulted. In any event, without hearing any further contrary arguments, for the same reasons I have set out in the above sections on the identification of the scope of the CEIC’s discretion and on legitimate aim, and giving due margin of appreciation to the legislature and the Administration in an area where issues concerning the public interest also feature largely, I would accept that the statutory licensing system is a proportionate response to achieve the legitimate aim of order public in the context of FTV broadcasting. 147.If the legislation underlying which the systemic restriction is implemented is not and cannot be faulted on the ground of proportionality, I doubt very much whether every decision then made through the exercise of discretion provided under the said legislation can and should still be subject to an individual challenge on the ground of proportionality, as that would lead to “micro examination of the actual decision made under that law”. See the observations of Lam VP at paragraph 87 of Hysan v The Town Planning Board (unreported, CACV 232 & 233/2012, 13 November 2014, Lam VP, Chu JA and Au J). In this respect, it is however important to note that these decisions would of course still be subject to the court’s scrutiny by way of judicial review under the traditional grounds, including Wednesbury unreasonableness. 148.But in any event, if the Decision could still be subject to the challenge of proportionality, I do not think it is appropriate for me to form a view in the present case. This is so as I have already decided to quash the Decision and remit it back to the CEIC for reconsideration in light of the Policy. In the circumstances, it is a meaningless and inappropriate exercise for me to consider whether the Decision is a proportionate one in light of the factors and approach that had been taken by the CEIC[42] when he had done so in the context of misconstruing the meaning of the Policy. In his reconsideration of the Decision, in light of the Policy as now construed by the court, the CEIC may well approach the matter differently and may take into account different considerations. It is thus an inappropriate and meaningless exercise for me to examine for the present purposes whether the Decision is a proportionate one. 149.I would therefore not consider this question. 150.In the premises, HKTVN has not made out the grounds in support of the constitutional challenge. C5. The Decision is irrational and contrary to the Policy and legislative aim 151.I can also deal with this ground very briefly. 152.Under this ground, HKTVN challenges the Decision on the basis that, under the Policy and legislative aim of the BO, the Government is to further liberalize the FTV market to fair and open competition, and to increase overall viewer programming choice. It would thus be contrary to this Policy and legislative aim if the CEIC, in considering whether to grant new licences under the BO, seeks to ensure the continued survival of an existing FTV licensee by concerning himself predominantly with the question of sustainability. 153.Mr Coleman submits that the CEIC did exactly that in arriving at the Decision, as the CEIC took into account the fact that if HKTVN’s application were successful, this would mean that the continued survival of one of the existing players would be called into question. It is therefore submitted that the CEIC took into account irrelevant consideration (ie, to protect the survival of the incumbent licensees) in making the Decision. For the same reason (continued Mr Coleman), the Decision is made contrary to the underlying aim of the Policy and the BO. It should therefore be quashed. 154.Reading the bases of the Decision (as evidenced by the relevant ExCo minutes) I have summarised above, I do not think this ground is made out on the facts. Fairly and objectively read, it cannot be said that one of those underlying reasons for the Decision was to ensure the continued survival of the incumbent licensees. I therefore also reject this ground. D. CONCLUSION 155.For all the reasons I have set out above, I would allow the judicial review on the grounds that the Decision is made not in adherence to the Policy and without giving effect to HKTVN’s legitimate expectation. I would however reject all the other grounds made in support of this judicial review. 156.I therefore would quash the Decision and remit it back to the CEIC for reconsideration. In doing so, the CEIC should have regard to and take into account the Policy as construed in this judgment and HKTVN’s legitimate expectation. 157.I further make an order nisi that costs of this application be to HKTVN, to be taxed if not agreed, with certificate for two counsel. This costs order shall become absolute 21 days from today unless any of the parties applies to vary it by summons. 158.I would like to thank counsel for their valuable assistance in this matter.
Mr Russell Coleman SC leading Mr Jin Pao, instructed by Hogan Lovells, for the applicant Mr Benjamin Yu SC leading Ms Eva Sit, instructed by the Department of Justice, for the respondent [1] For example, see LegCo Brief issued on 10 December 1998. [2] Which is defined under section 2 as a television programme which (a) is intended or available for reception by the public free of charge in Hong Kong; (b) is intended or available for reception by an audience of more than 5000 specified premises (as separately defined); and (c) primarily targets Hong Kong. [3] Formerly known as the Broadcasting Authority. [4] HKTVN was formerly known as CTI (City Telecom Ltd) when it submitted the licence application. [5] Fantastic Television Ltd was formerly known as First Gear Ltd when it submitted its application. It is a subsidiary of i‑Cable Communications Ltd, which has a pay TV licence providing pay TV programme services in Hong Kong. [6] HKTVE (Hong Kong Television Entertainment Company Ltd) was formerly known as “Festa Holdings Ltd” when it submitted the application. It is a subsidiary of PCCW Ltd (through another subsidiary PCCW Media Ltd) which has a pay TV licence providing pay TV programme services in Hong Kong. [7] Spectrum Value Partners. [8] See generally section 3 of the report. [9] See respectively paragraphs 3.14, 3.2.3, 3.3.4, and 3.4.3 of the report. [10] See paragraph 3.5.1. [11] See in particular, paragraph 5.3.5. [12] A licence applicant that has been granted AIP means that it would go on to a later stage of the application approval whereby the CEIC would consider whether or not to formally grant the licence by further reviewing and finally determining, among others, (a) whether the applicant and the person exercising control of it has satisfied the “fit and proper person” requirement under section 21 of the BO; (b) whether the applicant possesses sufficient financial capability to invest and has demonstrated commitment to invest sufficiently in its proposal submitted for FTV licence application; and (c) other relevant aspects of concern, if any, of the FTV licence application. [13] Which is the policy bureau charged with, among others, the responsibilities of overlooking broadcasting matters. The Authority also reports to the CEDB. [14] As pointed out by Mr Yu SC for CEIC in his skeleton submissions, in the Amended Form 86 at paragraphs 115‑116, HKTVN also says there is a policy that the CEIC will follow the Authority’s recommendations unless there are special reasons to justify departure therefrom. However, HKTVN apparently has not advanced any arguments in its skeleton to pursue and support this part of its case on policy. I will treat it that HKTVN is no longer pursuing this part of its case. I will therefore not consider further in this judgment HKTVN’s case based on this policy. In any event, if I was required to consider it, I would reject it. I agree with Mr Yu’s submissions set out at paragraph 42 of his skeleton that there could not be such a policy since the statement relied on by HKTVN to support such a policy does not have the quality of a policy as (a) it was made by the former CE in a radio programme when he was under personal attack for alleged failure to disclose a conflict of interest in the specific ExCo meetings concerning the grant of a digital audio broadcasting licence to Digital Broadcasting Corporation (Hong Kong) Ltd and he gave that response in defence; (b) that cannot be relied upon as a general policy statement given (i) it was not given ex cathedra;and (ii) the context was not FTV but digital audio broadcast; and (c) the statement in any event does not suggest that the CEIC is powerless to disagree with the Authority’s recommendations. [15] See Affirmation of Liu Kong Cheung, paragraph 26. [16] Ref CB(2)1568/99-00(01). [17] See similar written answer dated 17 October 2012 to the Hon Mr Peter Mok’s question [C1/4/228-9]. [18] At paragraph 1.4. [19] At paragraphs 1.3 and 5.2. [20] The meetings are on 15 January, 19 February, 26 March, 7 May, 2 and 15 October 2013. [21] As mentioned above, the areas are: (a) financial capability, (b) investment plan, (c) programming strategy and capability, and (d) technical soundness. [22] A few members did not agree to adopt the gradual and orderly approach and were of the view that all three applicants should be granted AIP. [23] See for example paragraph 69 below. [24] In support, Mr Coleman relies on Secretary for State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B; Capital Rich Development Ltd v Town Planning Board [2007] 2 HKC 542 at paragraphs 62‑64; Smart Gain Investment Ltd v Town Planning Board, unreported, HCAL 12/2006, 6 November 2007 at paragraphs 86‑87; R (DF) v Chief Counstable of Norfolk Police [2002] EWHC 1738 (Admin) at paragraph 45. [25] At the hearing, to bolster the case under this ground, Mr Coleman also asks to further amend the Amended Form 86 by adding paragraph 160A in these terms “Moreover, HKTV was not informed of the specific matters which were considered by the CEIC to be adverse to HKTV’s application which led to its ultimate rejection (only disclosed in the ExCo Minutes provided after the institution of these proceedings) and hence HKTV was unfairly deprived of the opportunity to make meaningful representations to the CEIC on such matters”. In my view, this would not add anything to the analysis I have made under this ground. The question is whether, as a matter of fairness, HKTVN had been informed of in substance sufficiently matters that it was required to respond to. I believe so as HKTVN had been told that the CEIC intended to introduce the gradual and orderly approach and might not approve all three applications. Coupled with the fact that it had already by then been provided with all the Consultant’s reports and the Authority’s recommendations, these would have sufficiently and in substance put HKTVN in a position to make all the necessary responses as demonstrated by Mr Wong’s evidence. [26] See Lister v CEIC (unreported, CACV 172/2012, 25 April 2013, Fok, Barma JJA and McWalters J) at paragraph 22, per Fok JA (as he then was); Hong Kong Canadian International Hospital Foundation v the Secretary for Justice (unreported, HCAL 131/2006, 4 May 2007), at paragraph 9, per A Cheung J (as he then was); Smart Gain v CEIC (unreported, HCAL 16/2006, 6 November 2007) at paragraphs 121–127, per A Cheung J. [27] See the court’s approach to accepting late reasons in judicial reviews discussed by Stanley Burnton J in Nash v Chelsea College of Art and Design [2001] EWHC Admin 538 at paragraphs 34‑36 and London Fire and Emergency Planning Authority v Secretary of State for Communities and Local Government [2007] LGR 591 at paragraphs 65‑66. [28] See R (on the application of KM) v Cambridgeshire County Council [2012] 3 All ER 1218 at paragraph 38. [29] See Shum Kowk Sher v HKSAR (2002) 5 HKCFAR 381 at paragraph 60, per Sir Anthony Mason, NPJ. [30] See Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at paragraph 29 and 76, per Li CJ, Chan and Ribeiro PJJ, and Sir Anthony Mason NPJ. [31] See Hasan v Bulgaria (2002)34 EHRR 55 at paragraph 84; Meltex v Armenia (2009) 49 EHRR 40 at paragraph 81; Glas Nadezhda EOOD (2009) 48 EHRR 35 at paragraph 45, and Centro Europa 7 Srl v Italy (2012) 32 BHRC 417at paragraphs 140‑141. [32] Sunday Times v United Kingdom (No 1) (1979‑1980) 2 EHRR 245 at paragraph 47. [33] Silver v United Kingdom (1983) 5 EHRR 347 at paragraph 88. [34] See Sunday Times v United Kingdom (No 1) (1979‑80) 2 EHRR 245, paragraph 49; Shum Kwok Sher, paragraph 62. See also Noise Control Authority v Step In Ltd (2005) 8 HKCFAR 113, paragraphs 48‑49; Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386, paragraphs 56‑81; Winnie Lo v HKSAR (2012) 15 HKCFAR 16, paragraphs 18–22 and 71–84. [35] As stated in the LegCo brief dated 28 January 2000 (ref: ITBB(CR) 9/19/1 (00) Pt 7) at paragraph 3 [C1/4/123-4]. [36] See respectively section 4, 9(2) and 10(1) of the BO. [37] See letter dated 6 June 2012 to CEDB [C5/18/903, 907] and HKTVN’s presentation materials at the LegCo panel on Information Technology and Broadcasting on 11 June 2012 [C5/20/971, 977]. [38] See paragraphs 42‑53 of the judgment. [39] See paragraphs 19‑22. [40] See paragraphs 82‑85. [41] In July 2010, ATV was directed by the Authority, in response to the relevant public opinions, to increase the amount of locally produced programmes to 273.5 hours per week from 2010 to 2015. [42] Under this challenge, HKTVN has advanced arguments for example to say that a proportionate response to the CEIC’s concern of sustainability of all the licensees in the market (if all the new applications were approved) leading to a deterioration of programme quality (if justified) could well be dealt with (as in fact also suggested by the SCED in the ExCo meetings in support of approving all the licence applications) by imposing necessary conditions regarding programming in the eventual licence to be granted, coupled with the already existent code issued by the Authority regarding programming, instead of a blanket and complete refusal to grant the licence. | ||||||||||||||||||||||||||||||
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