RE HONG KONG JOURNALISTS ASSOCIATION

HCAL 96/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 96 OF 2017

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D E C I S I O N

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1.  I have before me an application on very short notice by the Hong Kong Journalists Association for a mandatory injunction against the Director of Information Services (“Director”) and the Secretary for Home Affairs (“Secretary”) to require them to allow all full members of the Applicant access to the media centre and facilities and all press events relating to the Chief Executive Election to be held on this Sunday, 26 March 2017, at the Hong Kong Convention and Exhibition Centre.

2.  Accompanying this is the Applicant’s application for leave to apply for judicial review of (i) the decision of the intended respondents on 21 March 2017 not to allow online media entry to the media centre and not to adopt the Applicant’s full membership system for identifying eligible journalists to be allowed access; and (ii) the decision of the intended respondents contained in a written reply to the Legislative Council dated 11 January 2017 not to allow Internet media to subscribe to the Government News and Media Information System (“GNMIS”).

3.  It should be noted at the outset that the decisions in question relate to “online only media”, ie media that solely disseminate information via the Internet, for journalists from online media attached to traditional media (newspapers, radio and television stations) are granted full access.  For convenience I shall refer to such “online only media” simply as online media or Internet media.

4.  The Applicant is a trade union founded in 1968 and registered under the Trade Union Ordinance (Cap 322).  Membership of the Applicant is by application and subject to the approval of the Executive Committee which comprises 12 elected members.  There are 6 classes of members, namely, Full Members, Associate Members, PR Members, Trainee Members, Retired Members and Life Members.  Only full members may be issued a “Press Card” by the Applicant.  Rule 3(1) of the Applicant’s Constitution states that the union is open to any person employed as a journalist, photographer or artist in news organisations, and others who earn their income from journalism.  Eligibility for full membership is stated in Rule 3(2)(A) as follows:

“Those earning the majority [ie over 50%] of their income from journalistic work. Journalistic work for this purpose is defined as employment as a journalist or photographer or artist on newspapers, periodicals, domestic and international news agencies, radio, television or digital news platforms; as a full‑time freelancer; or as a person employed in the pre‑service and in‑service training of journalists, in Hong Kong”.

5.  It is further stated in the Applicant’s complaint to the Ombudsman[1] that:

“The Executive Committee must satisfy that an applicant is working for a news organisation and earning more than half of his/her salary from the job. In deciding the business nature of an applicant’s employer, the Executive Committee will consider the originality, diversity and frequency of updating of the news content it is providing. Office visits and meetings with the employers have been done to verify. In doubtful cases, applicants have also been asked to provide published materials, salary proof or tax return to prove their major income source.” [sic]

6.  While the Applicant may be the largest association of journalists in Hong Kong, it is not the only one.  Not all journalists in Hong Kong and, in particular, not all journalists of online media in Hong Kong, are required to be, or are in fact, members of the Applicant. Other trade associations that have been mentioned in the evidence include the News Executive Association and the Hong Kong Federation of Journalists.

7.  In order for media and journalists to have direct access to Government news and press events, they have to register with and subscribe to the GNMIS maintained by the Information Services Department (“ISD”). It is a platform integrating all government press releases, fax broadcasts, photographs and video clips for media access around the clock.  The Government issues invitations and press notices via GNMIS.  Upon receipt of such invitations, subscribers may register for the events.  Where the ISD has designated a press area in particular functions, only journalists who have been invited to and successfully registered for the events via the GNMIS are allowed entry to that area.

8.  The Applicant says that the Government’s policies have not kept up with changing circumstances because these arrangements are only available to traditional media (newspapers, radio and television stations) but not Internet media.

9.  In fact queries have been raised over the Government’s relevant policies since 2012.  In 2012 the Applicant asked the Government to change its policy to give Internet media access to GNMIS based on a system of accreditation.  In January 2014, the Hon Charles Mok (a member of the Legislative Council) asked the Secretary a question about access for Internet media, in response to which the Secretary said the arrangements would be reviewed from time to time.  In February 2016, the Applicant lodged a complaint with the Secretary regarding access to the press session by the Chief Executive on 27 October 2015 and the New Territories East Legislative Council By‑Election on 28 February 2016. Eventually the Applicant filed a complaint with the Ombudsman in June 2016.

10.  The Ombudsman’s report issued in December 2016 was critical of the ISD’s existing practice, observed that it amounted to a blanket restriction on online media and considered that the ISD should make decisions based on the track records of each media organisation.  Specifically, the Ombudsman recommended that ISD: (i) review as soon as possible its current practice and adopt a more open policy to keep pace with the times; (ii) review and relax the eligibility for GNMIS registration and draw up related guidelines; and (iii) pending completion of its review, be more flexible in dealing with requests from individual media organisations and allow them access wherever possible.

11.  On 11 January 2017, the Secretary in his written response to another question from a member of the Legislative Council stated that the ISD generally accepted the Ombudsman’s recommendations and was reviewing the arrangements for admission of the media and the criteria for registration as a GNMIS user, and studying the feasibility of allowing access to online media and would strive to complete the study as soon as practicable. Implicitly it was indicated that the ISD would continue with its existing policy until there was an outcome of its study.  This was demonstrated by another incident on 28 February 2017 in which a person from an online media was refused access.

12.  By a letter dated 17 March 2017, the Applicant urged the Director to allow its full members access to all press events and facilities at the Chief Executive Election.  In the morning of 21 March 2017, the Secretary replied, stating that since the review concerning Government press events and registration for the GNMIS was still incomplete, the existing arrangements would continue to apply on the Chief Executive Election Day.

13.  The Applicant contends that the decisions in question are inconsistent with Arts 25, 27 and 39 of the Basic Law, Arts 16(2) and 22 of the Hong Kong Bill of Rights and Arts 19(2) and 26 of the International Covenant on Civil and Political Rights (which are materially identical to the corresponding provisions in Hong Kong Bill of Rights).  In broad terms, it is said that the decisions contravene the freedom of expression and of the press as well as the guarantee of equality.  The Applicant also contends that the Secretary and Director have failed to give effect to the Ombudsman’s findings and recommendations and that their decisions are unreasonablein the Wednesbury[2] sense, ie so unreasonable that no reasonable decision‑maker could have come to.

14.  Mr Chan SC has raised some highly arguable points on behalf of the Applicant.  The lack of real progress since 2012, and at the latest since 2014, in reviewing and, if appropriate, adjusting and developing the relevant arrangements in tandem with changing circumstances seems to me prima facie unsatisfactory (though I have not of course at this stage considered the full evidence the intended respondents may file in response).  The Government’s apparent stance of not making any changes on a case by case basis is also prima facie contrary to the Ombudsman’s recommendation that the ISD, pending completion of its review, should be more flexible in dealing with requests and give access wherever possible.

15.  It seems to me there is a reasonably arguable case for judicial review, at any rate for some of the relief sought.  Important issues are raised concerning access of persons working for online media.  The decision challenged dated 11 January 2017 was the first general indication after the Ombudsman’s report.  In any event, it is a continuing policy with wide ramifications.  Insofar as an extension of time is needed, I would grant it.  Accordingly, I would grant the application for leave to apply for judicial review.

16.  As for the Applicant’s application for interim injunction, the principles governing the grant of interlocutory injunction are not in dispute.  They involve examining (i) whether there are serious issues to be tried in the application for judicial review; (ii) whether damages would be an adequate remedy for either party (though, in a public law case of this kind, the adequacy of damages as an alternative remedy is of less relevance); and (iii) whether the balance of convenience lies in favour of granting or refusing interim relief.  In this last stage, in the public law context, it is important to have regard to the wider perspective of public interest: Society for Protection of the Harbour Ltd v Chief Executive in Council [2003] 3 HKLRD 960, §§10–13 per Hartmann J; Man Hing Medical Suppliers (International) Ltd v Director of Health and Another (unrep, HCAL 62/2014, 7 January 2015), §7 per Au J; see also Cheung Tak Wing v Communications Authority (unrep, HCAL 60/2015, 12 June 2015) at §§23–30 per Au J.

17.  A particular feature of this application needs to be highlighted, and that is that the Applicant seeks a mandatory injunction — an order requiring the Government to do a certain thing.  Moreover, if granted, it will be an order that finally determines and effectively disposes of the underlying proceedings so far as the second decision is concerned. 

18.  In the context of mandatory injunction in private law, as Ma J (as the Chief Justice then was) stated in Music Advance Ltd v The Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041[3] at §12(7):

“… generally a court will have to feel a high degree of assurance that at the trial of an action it will be shown that the interlocutory injunction was rightly granted before an interlocutory mandatory injunction will be given …”

19.  Further, in a case that Ma J relied on, Films Rover International Ltd v. Cannon Films Sales Ltd [1987] 1 WLR 670 at 681, Hoffmann J said this:

“In addition to all these practical considerations, there is also what might be loosely called a ‘due process’ question. An order requiring someone to do something is usually perceived as a more intrusive exercise of the coercive power of the state than an order requiring him temporarily to refrain from action. The court is therefore more reluctant to make such an order against a party who has not had the protection of a full hearing at trial.”

20.  In the context of judicial review proceedings, depending on the character in substance of the injunctive order sought, there is a further dimension to consider, and that is, the proper role of the court in the matter in question.  The court exercises a supervisory function over the legality and constitutionality of administrative decisions.  As final relief in judicial review proceedings, it may make an order quashing the administrative decision in question or declaring it to be vitiated by some error of law or to be unconstitutional.  In general, however, the court does not tell the administrative body what to do or make the decision for it.  The court may say a certain policy is unlawful, but the court does not substitute a policy in its place.  That would be to usurp the function of the body from which the judicial review lies.  It is in my opinion crucial to bear this in mind when considering applications for mandatory orders and, a fortiori, for interim mandatory orders in judicial review proceedings.

21.  The same idea is encapsulated in the following passage from the judgment of Laws LJ in R v Ealing LBC ex parte Parkinson (1997) 29 HLR 179, 185–186:

“If a defendant’s duty is to exercise discretion and judgment as the delegate of the legislature, the court cannot, generally at least, hold that it should have carried out its task in a particular way — and so deliver a particular result — without usurping the authority which Parliament has conferred by constituting itself a substitute decision‑maker on the merits. Even in a case where a decision is struck down in the public law court on Wednesbury grounds, it is by no means a necessary or usual consequence that the public body ought to have acted in one way and one way only. The relief typically given is an order of certiorari to quash the decision, with the result that the respondent must think again. There are, it is true, rare cases where the public law court is able to conclude that only one result was legally open to the body in question, and in that case an order of mandamus may issue to require that result to be arrived at. Even there, however, the court does not undertake the role of primary fact‑finder, substituting its judgment on the merits for that of the body reviewed. It merely recognises the existence of a situation in which a public authority, properly directing itself on the facts according to the law, has only one choice legally open to it.”

22.  In this case, for present purposes, I am prepared to assume that the Applicant has sufficient standing to make the application, that the relevant constitutional provisions are engaged, and that the challenge of the existing policy raises serious issues to be considered at the substantive hearing of the judicial review application.  Still, the question for me in the urgent hearing this afternoon is not primarily the merits of the underlying challenge but whether or not the interim mandatory injunction sought by the Applicant should be granted.

23.  First, it is to be noted that even if the judicial review succeeds on certain bases, it does not necessarily mean that the mandatory injunction sought by the Applicant now should be granted.  If, for example, the constitutional challenge succeeds on the basis that the policy disproportionately imposed an absolute bar of all Internet media irrespective of their nature and track record from access to the GNMIS and the Government’s press events, the proper relief may possibly be simply to quash the decision in question.

24.  Even if the court on the judicial review concludes that an appropriate accreditation system could proportionately address any legitimate aim the respondents seek to pursue, this does not necessarily mean that the proper way of accrediting journalists from online media is to allow access to full members of the Applicant.  Nor does it necessarily mean that the court should tell the respondents at the end that this is what they must do.  For one thing, as Mr Dawes SC submitted on behalf of the intended respondents, the Applicant’s approach does not avail journalists from Internet media who are not members of the Applicant and may as such be said to be discriminatory.  It appears that there have already been such criticisms against the Applicant’s application for injunction from other online media.[4]

25.  The Applicant has pointed to the practice of the Legislative Council and to Chapter 39 of the Police General Orders which recognise the Applicant’s membership card, but this does not show that any other system, particularly in relation to the Chief Executive Election, would be irrational and perverse.

26.  Likewise, even if the Applicant is eventually successful in its application for judicial review on the basis that a mandamus is granted as sought to require the Secretary and the Director to “review the Policy forthwith” and “pending the completion of review, [to] relax the eligibility criteria for individual Internet media organisations’ registration for GNMIS and their request for entry to Government press events forthwith”,[5] this does not mean there should be no criteria at all in the meantime, or that the criterion should necessarily be full membership of the Applicant.  The Applicant’s own research shows that the UN, US and UK all have different systems for assessing or recognising the status of individual journalists.

27.  In the circumstances, I do not find a high degree of assurance that at the end of the day, if the Applicant is successful, the proper relief would be, or would in effect be equivalent to, the mandatory injunction that it now seeks.

28.  This is not a case of barring access of the public to certain information, or preventing the press altogether from reporting certain matter, or restraining the publication of information.  It is estimated that there will be over 1,000 journalists covering the election on Sunday.  The authorities that Mr Chan SC has drawn to my attention emphasising the freedom of expression such as Observer and Guardian v UK (1991) 14 EHRR 153; Stoll v Switzerland [2007] ECHR 1060 and Lingens v Austria (1986) 8 EHRR 407 have to be looked at in that context.

29.  I appreciate the point made by Mr Chan SC about the plurality and diversity of reporting.  In my view, however, the present case is not primarily about the scope of the freedom of the press; it is more about the scope of the press.  Before you get to freedom of the press it is necessary to see who the press is.  Does it extend to any person who claims to work for some online platform for the dissemination of information? In the absence of an accreditation system, which is apparently still being studied by the Government, the Applicant is effectively asking this court, on this application for injunction, to accredit its members for Sunday’s purposes on the basis simply of their membership of the Applicant.  In my view this is not a correct course. 

30.  The intended respondents have so far distinguished online media from traditional media because the latter are subject to legally binding registration or licensing regimes.  Newspapers and periodicals have to be registered under the Registration of Local Newspapers Ordinance (Cap 268).  There are various legal provisions there concerning registration of the particulars of the proprietor, manager, printer, publisher and editor[6], their vicarious responsibility for the publication[7], and delivery of copies of the newspapers every day to the Registrar which are kept for at least 6 months[8], backed by criminal sanctions[9]. In the case of radio and television stations, they are closely regulated by licensing systems under the Telecommunications Ordinance (Cap 106), Broadcasting (Miscellaneous Provisions) Ordinance (Cap 391) and Broadcasting Ordinance (Cap 562) administered by the Communications Authority.  In contrast, online media are not subject to any similar regulation.  This is a real distinction that cannot be ignored.

31.  A highly important consideration is the need to maintain security and order at the relevant events.  The Applicant itself recognises in its Form 86 that these needs have to be assessed with reference to the particular media organisation’s history and characteristics. There is no evidential basis to satisfy this court that the mandatory injunction sought would not lead to concerns over security and order in the Chief Executive Election or that any such concerns would be more imaginary than real.  The identity of the 26 full members in question and their organisations have only been supplied in a letter to the respondents yesterday.[10]  There is also the risk of gate‑crashers from other online media who might feel aggrieved.  Had this application been made earlier there might have been more time to address these issues but, objectively, this hearing is taking place at an extremely late stage relative to the Chief Executive Election so that there is little chance for the concerns and risks to be satisfactorily dealt with.

32.  It is also important to note that, as I have mentioned at the outset, this hearing concerns solely online‑only media.  Journalists from online platforms affiliated with traditional media are not precluded from access by the existing policy and may therefore disseminate news and information on the Internet.  The Applicant itself has around 350 full members, of whom 20 are journalists of online media affiliated with traditional media, and 26 are from online‑only media.  The corollary is that, even if those 26 persons do not gain access to the media facilities, the Chief Executive Election will be covered by online media affiliated with traditional media.  Hong Kong residents who have no access to newspapers, radio or television or who prefer reading news on the Internet may still enjoy access to online coverage of the Chief Executive Election.

33.  Furthermore, those who cannot obtain admission to the press area may seek admission to the public area which is in the same hall.  The press area admittedly enjoys some undeniable advantages, but there will be large video walls and television screens set up in different parts of the venue showing the live feed of information relating to the progress of counting, voter turnouts and announcement of election result.  Official press releases on voter turnout and the voting results will be on the website of the Election.  Online media could also make their own arrangements with the candidates and Election Committee members for interviews.

34.  I appreciate that many online‑only media (and their audience) may desire strongly that such media should enjoy access in order to cover the Chief Executive Election.  But I cannot see how I can assume the function of making policy and by the mandatory injunction sought by the Applicant here require the Secretary and the Director to give access to a certain class of such journalists and effectively to transfer their gate‑keeping function entirely to the Applicant.

35.  Accordingly, having regard to all the circumstances including the nature of the injunction sought, the proper separation of the courts from executive functions, the lack of a high degree of assurance that the interim injunction sought would be found at trial to have been rightly granted, the lateness of the application, and the concern for maintenance of security and order at the Chief Executive Election, I dismiss the application for interim injunction.