CHEUNG TAK WING v. COMMUNICATIONS AUTHORITY AND ANOTHER

HCAL 60/2015

[2018] HKCFI 2481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 60 OF 2015

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J U D G M E N T

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A.   INTRODUCTION

1.  This is the applicant’s judicial review application to challenge the decisions (“the Decisions”) made respectively by the Communications Authority (“the Authority”) and the Director of Information Services Department (“the Director”).  The Decisions relate to the broadcast through domestic free and paid TV and radio since 22 April 2015 of certain materials (“the Impugned Announcements”) supplied by the Government.

2.  The Impugned Announcements are entitled “2017, Make it happen!” (2017, 一定要得).  In them, they convey messages in relation to the Government’s proposals (“the Reform Proposals”) concerning how the method for selecting the Chief Executive in Hong Kong (“the CE”) be amended.  At the time when the applicant applied for leave to challenge the Decisions, the motion (“the Motion”) which contained the Reform Proposals would very soon be tabled before the Legislative Council (“the LegCo”) for endorsement by its Members.  The Motion (and thus the Reform Proposals) would only be passed if it was endorsed by two-thirds of all the Members of the LegCo.  If it was so endorsed, under the constitutional mechanism, the Reform Proposals would further need to be consented to by the CE and then approved by the National People’s Congress Standing Committee (“NPCSC”) before the corresponding amendments would be formally made to the Basic Law[1] to become law.

3.  As will be expanded further below, under the relevant legislative provisions and licensing conditions, the Government can require the relevant TV and radio licensees to broadcast free of charge materials supplied by the Government which are “Announcements in the Public Interest” (“API”).  Moreover, the Government is also exempted from a ban which prohibits any person to put in advertisements for broadcast which are political in nature.

4.  The applicant in this challenge says effectively that the Impugned Announcements are not API.  He further argues that, even if they are API, they are in any event political in nature, and the said exemption for the Government is unconstitutional being discriminatory.  As such, the Decisions in supplying the Impugned Announcements to the TV and radio licensees to be broadcast are ultra vires or unlawful.  Moreover, the applicant also says insofar as the Authority is concerned, it had failed in its statutory duty to vet the Impugned Announcements to ensure that they were API before directing the broadcasters to broadcast them.

5.  The applicant in his original Form 86 seeks the relief of various declarations to the effect that the Impugned Announcements are not API and the Authority and the Director acted unlawfully in making the Decisions.  Further, the applicant asks for the relief of an injunction to effectively restrain the broadcast of the Impugned Announcements.

6.  By way of a summons filed at the same time of the leave application,[2] the applicant also sought an interlocutory injunction to restrain the Impugned Announcements from being broadcast until further order.

7.  The court heard the leave application and the interlocutory injunction application on 5 June 2016.  By a decision dated 12 June 2015 (“the Interlocutory Decision”), this court granted leave to apply for judicial review, but refused the interlocutory injunction for the reasons set out in the decision.

8.  By the time when this matter came for substantive hearing in November 2016, the Motion was already presented to, debated but not passed by the LegCo on 17 June 2015.  Hence, by then, it was entirely academic for the applicant to seek an injunction to restrain the Impugned Announcements from being broadcast.

9.  Mr Shieh SC (together with Mr Deng) for the applicant therefore formally confirms with the court that the applicant no longer pursues the injunctive relief asked for at paragraphs 4 and 5 in the Re-Amended Form 86.[3] However, the applicant still seeks the following reliefs:

(1) A declaration that the Impugned Announcements are not API and hence the Authority acted unlawfully by directing the TV licensees and Radio licensees to broadcast them.

(2) Further and alternatively:

(a) A declaration that section 23(3) of the Broadcasting Ordinance (Cap 562) and paragraph 5(b)(ii) of the Radio Code of Practice on Advertising Standards (“the Radio Code”), insofar as they create an exemption in favour of the Government in respect of the prohibition on political advertising, are unconstitutional by reason of Articles 25 and 27 of the Basic Law (respectively “BL25” and “BL27”), read in light of Articles 1, 16 and 22 of the Hong Kong Bill of Rights (respectively “HKBOR1, 16 and 22”).

(b) A declaration that the Impugned Announcements are political in nature and hence the Authority acted unlawfully by directing the TV licensees and the Radio licensees to broadcast them.

(3) A declaration that the Authority abdicated its duty and power by deciding (on a continuous basis) to direct the TV and Radio Licensees to broadcast materials purportedly as APIs in accordance with broadcast schedules supplied by the Director.

(4) A declaration that the Director acted unlawfully by supplying the Impugned Announcements which were not API or political in nature for broadcasting.

10.  Mr Abraham Chan (with Ms Bonnie Cheng) for the Authority and Mr Johnny Mok SC (with Mr Johnny Ma and Mr Justin Ho) for the Director both oppose this application on the basis of (a) the application having become academic, (b) merits, and (c) delay.

11.  To understand the arguments raised by the parties properly, I need to first set out the relevant context and background.

B.  THE RELEVANT STATUTORY AND LICENSING FRAMEWORK

B1.  The relevant licensing conditions with the TV licensees and Radio licensees

B1.1  Licensing condition to broadcast API

12.  In Hong Kong, television and radio broadcasting services are respectively governed and regulated under the Broadcasting Ordinance (Cap 562) (“the BO”) and the Telecommunications Ordinance (Cap 106) (“the TO”).  Service providers can only lawfully provide domestic television and radio broadcast services with the respective relevant licences granted by the Chief Executive in Council (“the CEIC”).[4]

13.  Terms and conditions are imposed in these licences for the operation of the broadcasting services.

14.  A relevant standard condition in all TV licences is as follows:[5]

“18.1 The Licensee shall include in its Service such:

(a) publicity material in order to promote knowledge and understanding of the activities and the functions of the [Authority]; and

(b) television programmes and other material in the public interest including but not limited to weather programmes and weather forecasts provided by the Government, as the [Authority] may provide or direct and at such time, within such period, on such channel, within or without such programme and in such language or dialect as the [Authority] may direct.

…

18.4 For the avoidance of doubt, the Licensee shall not, in the performance of this Condition, be:

(i) responsible for the contents of the material included in the Service; and

(ii) entitled to charge the [Authority] or the Government.” (emphasis added)

15.  A standard condition in all Radio licences includes:

“28. Announcement in the public interest

The Licensee shall broadcast in each of its Sound Broadcasting Service channels for periods not exceeding in total one minute in each clock-hour such announcements in the public interest as the [Authority] may determine.

Publicity Material of the Broadcasting Authority

The Licensee shall broadcast in each of its Sound Broadcasting Service channels such publicity material as the Broadcasting Authority may direct in order to promote knowledge and understanding of the activities and functions of that Authority.” (emphasis added)

16.  Hence, in substance, it is a standard condition of a TV or Radio licence that the licensee shall broadcast materials or announcements in the public interest (ie, API) free of charge.

B1.2  Prohibition on political advertising in broadcasting services and exemption in favour of the Government

17.  Schedule 4, Rule 12 of the BO expressly provides that “a licensee shall not include in its service any advertisement of a religious or political nature or connected with any industrial dispute”.

18.  Section 23(2) of the BO provides, subjection to subsection (3), that a licensee shall, among others, comply with its licence conditions and any requirements under the BO which are applicable to it.

19.  On the other hand, section 23(3) of the BO provides that:

“Subsection (2) shall not apply in the case of material supplied by the Government.”

20.  In other words, section 23(3) of the BO effectively provides that in the case of materials supplied by the Government, a licensee does not have to comply with any requirements under the BO, which would include the prohibition against the broadcast of advertisements of a political nature under Schedule 4, Rule 12 of the BO.

21.  There is no statutory prohibition for political advertisement in radio broadcasts under the TO.

22.  Nonetheless, the Broadcasting (Miscellaneous Provisions) Ordinance (Cap 391) (“the BMPO”) contains the following material provisions:

(1)  Section 9(1)(d) of the BMPO empowers the Authority to secure proper standards of television and sound broadcasting with regard to both programme content (including advertisements) without limitation, restrictions on the time of day when advertisements may be provided whether for the same or different licensees or broadcasts; and

(2)  Section 19 of the BMPO provides the Authority with power to issue codes of practice relating to standards of advertisements broadcast by a licensee, and that such codes shall be consistent with standards established under by the CEIC under section 130 of the TO.

23.  Under section 24 of the BMPO, the Authority may impose penalties on a licensee for non-compliance of any Code of Practice.

24.  The Radio Code published on January 2013 by the Authority pursuant to section 19 of the BMPO provides at paragraph 28 that: “No advertisement of a political nature shall be broadcast except with the prior approval of the [Authority].”

25.  However, paragraph 5(b)(ii) of the Radio Code further provides that for the purpose of the Radio Code, the term advertisement or advertising material does not include announcements in the public interest.

26.  It is common ground that, as a matter of fact and practice, only the Information Services Department (“the ISD”) or the Government supplied materials, or those supplied by the Authority as promotional materials for the Authority’s work, would be classified by the Authority as API.

27.  Hence, under paragraph 23(3) of the BO and paragraph 5(b)(ii) of the Radio Code, the Government is effectively given an exemption (“the Exemption”) from the prohibition against the broadcast of political materials by TV and radio broadcasters.

C.  BRIEF FACTUAL BACKGROUND

28.  Given that the underlying complaint against the factual broadcast of the Impugned Announcements is no longer relevant by the time of the substantive hearing, I would only set out briefly the relevant background facts relating to its broadcast to put the matter in proper context. They are not in any real dispute and are as follows.

29.  Article 45 of the Basic Law (“BL45”) provides for the election of the CE in Hong Kong.

30.  Under BL45, the specific method for selecting the CE is prescribed in Annex I (“Annex I”).  Articles 1 - 6 of Annex I provide for the method of selection for the CE by way of an Election Committee and set out the framework of the composition of the Election Committee.  Article 7 of Annex I provides the constitutional mechanism for amending the method for selecting the CE as set out in Annex I after 2007.

31.  In the exercise of its power to interpret the Basic Law under Article 158, the NPCSC made an interpretation of Article 7 of Annex I on 6 April 2004 (“the 2004 Interpretation”).  The 2004 Interpretation sets out the procedure in invoking the amendment process of the method for selecting the CE after 2007.

32.  When the 2004 Interpretation is read together with Article 7 of Annex I, the procedure of invoking any amendments to Annex I in relation to the method of selecting the CE after 2007 will involve the following five steps (“the 5-step process”):

(1) Step 1 – The CE will make a report to the NPCSC as to whether there is a need to make an amendment.

(2) Step 2 – The NPCSC will make a determination in light of the actual situation in Hong Kong and in accordance with BL45 and the principle of gradual and orderly progress.

(3) Step 3 – The bill on the amendments to the method for selecting the CE shall be introduced by the Government into the LegCo to be endorsed by two-thirds majority of all the members of the LegCo.

(4) Step 4 – The CE should consent to the amendments made by the LegCo for selecting the CE.

(5) Step 5 – The CE should report the amendments to the NPCSC for approval or for the record.

33.  In October 2013, the then CE announced the setting up of the Task Force on Constitutional Development.  The Task Force would be responsible for conducting the consultation exercise in respect of the methods for selecting the CE in 2017 and for forming the LegCo in 2016.

34.  In July 2014, after a first round consultation exercise conducted by the Task Force, the CE (pursuant to Step 1) made a report to the NPCSC suggesting that amendment should be made to the method for selecting the CE in order to attain the aim of universal suffrage.

35.  After studying the report, on 31 August 2014, the NPCSC made a decision (“the 831 NPCSC Decision”), which has effectively prescribed the parameters within which the CE election method can be reformed.

36.  On 7 January 2015, the Task Force published a consultation document (“the Consultation Document”) and made the decision to commence a two-month 2^nd public consultation (“the 2^nd consultation”) on the basis of the Consultation Document.

37.  The 2^nd consultation ended on 7 March 2015.

38.  On 22 April 2015, the CE published the Consultation Report and Proposals, setting out the views the Government had received from the public consultation, and her package of proposals for the method of selecting the CE in 2017.  It sets out the Reform Proposals put forward by the Government for the method of selecting the CE.  It was the Government’s view that the Reform Proposals conformed with the parameters prescribed under the 831 NPCSC Decision and at the same time reflected the views collected from the consultation exercises.  As mentioned above, the Reform Proposals were appended to the Motion to be put before the LegCo for vote.

39.  For the above purpose of the above consultation process and the promotion of the Reform Proposals and solicit public support, since December 2013, the Government has produced a series of advertisement concerning the 2017 CE Elections on radio and television, fixed media advertisements (such as signboards in MTR stations), newspapers and interviews with government officials.

40.  Among these, the following radio and television advertisements were broadcast between 4 December 2013 and 14 July 2014:

(1) “政改三人組 實現普選” (Let’s Talk and Achieve Universal Suffrage) from 4 December 2013;

(2) “由你由我一齊實現普選” (Let’s Achieve Universal Suffrage Together) from 6 February 2014;

(3) “把握機會實現普選” (Seize the Opportunity to Achieve Universal Suffrage) from 4 April 2014; and

(4) “有根有據實現普選” (A Clear Basis for Universal Suffrage) from 8 June 2014.

41.  Between the time of the submission of the First Consultation Report and the 831 NPCSC Decision, radio and television advertisements entitled “有票，真係唔要” (Your Vote, Don’t Cast it Away!)[6] were broadcast between 7 August 2014 and 1 September 2014.

42.  From 2 September 2014 onwards until a date unknown, the following radio and television advertisements were broadcast: “有票，梗係要” (Your Vote, Gotta Have It!).[7]

43.  From 10 January 2015 until the close of the 2^nd consultation on 7 March 2015 the following radio and television advertisements were broadcast: “2017 機不可失” (2017, Seize the Opportunity).[8]

44.  From 22 April 2015 onwards, a series of radio and television advertisements entitled “2017 一定要得!” (2017, Make it happen!) (ie, the Impugned Announcements) were and continued to be broadcast until the Motion was put to the LegCo.

45.  The visual element of the television broadcast of the Impugned Announcements consists of a series of shots showing Hong Kong residents of different age groups each looking into the camera to make short statements.  The image then changes to shots of the three principal officials namely, the then Secretary for Justice (“the SJ”), the then Secretary for Constitutional and Mainland Affairs (“the SCMA”), and the then Chief Secretary (“the CS”) (collectively the “Principal Officials”).  The final visual image is a repeat of the slogan “2017 Make it happen!” with a link to the 2017.gov.hk website.

46.  The audio element starts with the sound of a tram, before a light score is overlaid with statements from the visual actors.  The statements are: “Having discussed for so long, we can finally get it.”  “One person one vote to elect the Chief Executive, We really want to vote”.  “We can move forward, Of course we shouldn’t stand still”.  “Hong Kong’s future.  We can have a say in Hong Kong’s future.”  “We really want to vote to elect the Chief Executive.”  Upon the introduction of the Principal Officials, they each make a statement.  The SJ says: “A regime of universal suffrage that complies with the Basic Law”, the SCMA says “Five million voters electing the Chief Executive for the first time”, and the CS says “For our future, cherish this opportunity, please support the universal suffrage proposal.”

47.  The radio broadcast consists of a man and a woman taking turns to speak.  The message is largely the same as the audio element of the television broadcast with the exception that SJ and SCMA.  Their messages in the video, are instead said by the unknown man and woman.  The CS concludes with the same message that she conveyed in the television broadcast.

48.  The applicant is a Hong Kong permanent resident and is eligible to vote.  It is his position that he does not want to receive the Impugned Announcements which are political in nature.  He however reiterates that he takes out this judicial review for the sole purpose of public interest.

49.  He applied for leave to apply for judicial review on 6 May 2015, seeking also an interlocutory injunction restraining the Government from continuing to broadcast the Impugned Announcements on television and radio.

50.  After a hearing on 5 June 2015, this court by way of the Interlocutory Decision refused to grant the interlocutory injunction but granted leave to apply for judicial review.

51.  The Motion was debated and rejected by the LegCo on 17 June 2015.  By then, the broadcast of the Impugned Announcements had already come to an end.  Hence, by the time of the substantive hearing, there were no longer any live issues as to whether the Impugned Announcements should be continued to be broadcast and whether the decisions to require the broadcasters to broadcast them were lawful or not.

D.   THIS JUDICIAL REVIEW

D1.   Grounds of judicial review

52.  I have summarized the applicant’s grounds of judicial review in the Interlocutory Decision as follows (which the parties agree is a fair summary):

(1) Grounds 1 and 3 (collectively “the API Grounds”): In directing the broadcasters to air the Impugned Announcements, the Authority and the Director acted unlawfully, or alternatively the Authority has abdicated its duty.  The principal arguments advanced under these Grounds can be very briefly summarised as these:

(a) The Authority has power under the relevant licence conditions to direct the TV and Radio licensees to broadcast materials which are API.  See for example, Condition 18.1 of the TVB TV licence.[9]

(b) To amount to API, the subject matter must concern something which can be objectively proven to be “good” or beneficial to the public, in the sense that the advertisement’s purpose is to inform and educate the public by means of imparting information which is in the public interest, and it should convey something “of benefit” to viewers and on which views could act for themselves.[10]

(c) However, the Impugned Announcements do not fall within those categories, as it only advances a message to urge the public to support the Reform Proposals.  They do not seek to set out the arguments or views in favour of as well as in opposition to the proposals. They are therefore not to inform and educate the public about facts or information which can be objectively proved to be in the public interest.

(d) Given the power provided under the relevant licence conditions to direct a broadcaster to so broadcast the API materials supplied by the Government, coupled with its statutory function and power to administer licence conditions,[11] the Authority has a statutory power and thus duty to vet the materials to see whether they are API before directing the broadcaster to air them.

(e) In the present case, the Authority acted in breach of a statutory duty and thus unlawfully in directing the broadcasters to air the Impugned Announcements which are not API.

(f) Alternatively, the Authority had abdicated its statutory duty (to vet the materials) in simply issuing advanced general directions[12] to instruct the broadcasters to broadcast materials supplied directly by the Director for the Government in whatever schedule of broadcast the Director has asked those materials to be broadcast.

(g) Further alternatively, if the Authority had no statutory duty or power to examine the materials supplied by the Government as API were in fact “in the public interest”, then the Director herself acted unlawfully by supplying the Impugned Announcements to the broadcasters purported as API when they should not have been so regarded or classified.

(2) Ground 2 (“the Exemption Ground”): The Authority and the Director acted both unlawfully in directing the broadcasters to broadcast the Impugned Announcements, which are political in nature.  The applicant’s arguments are in summary as follows:

(a) Broadcast of political advertisements through a TV licensee and Radio licensee is respectively prohibited under clause 12 of Schedule 4 of the BO and the Radio Code at paragraph 28.

(b) The Impugned Announcements are or at least contain materials that are political in nature.  They should thus be prohibited from being broadcast.

(c) Insofar as section 23(3) of the BO and paragraph 5(b)(ii) of the Radio Code provide the Exemption to the Government on the ban of political advertising, these provisions are unconstitutional as they are discriminatory on the ground of status (favouring the Government), which is in breach of BL25 and HKBOR22.[13]  These provisions therefore have no legal effect.

(d) In the premises, the Authority and the Director acted unlawfully (in light of the ban) by directing the broadcasters to broadcast the Impugned Announcements.

53.  The Authority and the Director both contend that the judicial review should be dismissed on the basis that:

(1) The judicial review application has become academic, and hence the court should not entertain it.

(2) The grounds are without merit.

(3) In any event, even if the grounds have merits, given that the application was taken out of the statutory 3-month period, the court should exercise its discretion not to grant any of the reliefs sought.

54.  I now turn to look at the arguments raised.

D2.   Should the court entertain this judicial review

55.  Mr Shieh for the applicant fairly and rightly accepts that insofar as to the actual broadcast of the Impugned Announcements and the Decisions are concerned, it can be said that those matters have become academic.

56.  However, leading counsel says the applicant in this judicial review also seeks declaration as to the meaning of “API” in the licensing conditions, whether the Authority has a statutory duty to vet the Government’s supplied materials to see whether they are API, and whether the Exemption is constitutional.  These issues are not only not academic but also very important.  This is particularly so, as given the extant ongoing actual circumstances in Hong Kong, it is not unrealistic to say there may be events or circumstances that would arise in the future which may require the resolution of these issues.  Hence, it is necessary, appropriate and important for the court to deal with them now.

57.  In this respect, it is well recognised that the court can entertain a judicial review which has become “academic” following the principles laid down in Chit Fai Motors v Commissioner for Transport [2004] 1 HKC 465 at paragraph 20(2) - (4) per Ma CJHC (as the learned CJ then was):

(1) The court has jurisdiction to hear and determine a question in which the dispute was real and the relevant facts had taken place, but no longer happens to be in existence at the time of the hearing.

(2) Whether the court does so or not requires one to examine the utility of the decision.

(3) In public law cases, the duties of public bodies fall to be exercised on a continuing basis not only in relation to the parties before the court but also perhaps to others in the future.

(4) Examples include, a discrete point of statutory construction which does not involve detailed consideration of the facts, where a large number of similar cases exist or will most likely need to be resolved in the near future; where the same point is likely or may arise as between the same parties or those in positions similar to the parties, where there are conflicting situations.

58.  Mr Shieh further refers this court to R(Brooks) v Islington London Borough Council [2016] PTSR 389.  In that case, by the time the matter came to the court for substantive arguments, the issues raised had become academic.  Laws J still exercised his discretion to hear the matter for the following reasons at paragraph 26:

“26 In the present case, it is appropriate, in my judgment, to exercise that discretion in relation to the principal issue in this case. First, that issue involves a question of statutory construction, namely the proper interpretation of section 188 of the Act. Secondly, it is an issue of importance to housing authorities and individual applicants who are homeless as the answer to that issue will determine how housing authorities should approach their duty under section 188 of the Act. Thirdly, the issue may not otherwise be determined unless it is resolved in a case such as the present. The issue relates to the interim duty to provide temporary accommodation pending a decision, following inquiries, on whether or not a duty is owed under the provisions of Part VII of the Act. The period of time during which that interim duty is owed is likely to be relatively short and in most, perhaps all, cases the question of enforcement of the duty would have ceased to be a live issue before the matter could be brought before a court by way of judicial review. There may not be a case where the issue has not become academic before the court considers it. Fourthly, in the present case, the issue arises against a background of actual rather than assumed or hypothetical facts. Even when considering questions of statutory interpretation, it is usually preferable to approach the matter on the basis of an actual factual situation. That better enables possible alternative interpretations of the statutory provision to be assessed. For all those reasons, there is a public interest in dealing with the principal issue and this case is an appropriate case for the court to rule on that issue.” (emphasis added)

59.  Bearing the above principles in mind, I agree with Mr Shieh that I should still entertain this judicial review:

(1) The challenges relate to the question of the legality and constitutionality of the current legislative scheme and policies of the Authority and the Director.  The present case will assist the Authority and the Director going forward insofar as how they approach their duties.

(2) The controversy in relation to the broadcast of Government materials that may be argued to be political in nature may well arise again given the present circumstances in Hong Kong.

(3) The constitutional reform proposal did not gain the requisite amount of support by the LegCo in 2015.  There may well be another round of constitutional reform – the same or similar types of advertisements would recur.

(4) Any such advertisements under challenge could only be broadcast for a limited (likely to be short) period of time.  Unless expedited, the time frame from (a) application for leave up to (b) full substantive hearing is likely to exceed the period of broadcast of any relevant advertisement.  If the court were to accede to any challenge on the “academic” ground, it would be more difficult for misuse of APIs for political advertising to be challenged and put right.

(5) The challenge arose from real and not hypothetical facts.

60.  I would therefore now turn to look at the grounds of judicial review in turn.

D3.   The API Grounds

61.  There are two separate principal issues arising under these grounds:

(1) Under Ground 1, what is the meaning of “API” and whether the Impugned Announcements fall under it?

(2) Under Ground 3, whether the Authority has a statutory duty to vet the materials supplied by the Government to confirm if they are API before they are provided to the broadcasters for broadcast?

D3.1  What is the meaning of API

62.  As summarized above, it is the applicant’s principal contention that the objective meaning of “API” refers to an announcement that is in the public interest to be made.  The subject matter of the announcement must therefore concern something which can be objectively proven to be “good” or beneficial to the public, in the sense that the advertisement’s purpose is to inform and educate the public by means of imparting information which is in the public interest, and it should convey something “of benefit” to viewers and on which views could act for themselves.

63.  In support, Mr Shieh’s core submissions further run as follows.

64.  Leading counsel submits that “Announcement in Public Interest” are ordinary English words, and they simply mean an announcement which is “in the public interest” to make.

65.  The relevant phrase is not “announcements on a topic of public interest”.  It is important to draw an important distinction between (a) whether the announcement deals merely with a topic which is of public interest; and (b) the announcement itself is in the public interest.  Determination of whether the Impugned Announcements amounted to API called for an examination of the latter and not the former.  The content and purpose of the specific announcement – not merely the “topic” or “issue” and which could be very loosely or broadly formulated – must be scrutinized.

66.  If one asks the question, is it in the public interest to issue this announcement (or is this announcement made in the public interest), one must naturally focus on what it is that the recipient is expected to do upon viewing it.  At the end of the day all messages are intended at influencing conduct.

67.  For example, in the case of a campaign that is thought by the Government to benefit the community (eg, clean Hong Kong, promotion of tourism), the recipients are expected to be educated about the merits of a certain “cause” and then act accordingly (eg, throw rubbish in the dustbin, be courteous to tourists).

68.  By way other examples, the public might be:

(1) told of an imminent or current consultation and be urged to express their views and provided information and channels as to how to express their views (ie, by questionnaire, survey, email, website form) and provided with a deadline;

(2) informed about the civic duty to vote in elections, with a view to urging them to vote but without expressing any views on any candidate or groups of candidates;

(3) warned of phone scams, or failures to maintain dangerous slopes, and urged to be careful or face prosecution;

(4) informed about constitutional rights or a change of legislation, to enable the general public to exercise their rights and operate within the boundaries of law;

(5) provided with information to promote healthy living by warning on the dangers of smoking, drink driving, diets (less fats sugars salts, more vegetables), and drugs.

69.  Mr Shieh emphasizes a common thread through these self-evident examples is that they all aim at influencing the public’s conduct by providing relevant information.

70.  There may be uncontroversial cases such as clean Hong Kong, or the need to be vigilant and guard against telephone scams.  Those are self-evidently in the public interest.  Hong Kong should be clean.  The public should be vigilant against being misinformed.

71.  There could be some messages that are more controversial.  However, as long as the message is: (a) grounded in objective scientific consensus or (b) the objective it seeks to promote is one which, under our constitutional framework, has received the requisite political clearance or approval from the relevant organ, then it may be properly be regarded as API.  In the latter case, the “beneficial” and “public good” nature of the message is borne out by the fact that it has received the blessing of the relevant organ responsible for determining the well-being of Hong Kong.

72.  What is the requisite political clearance or approval (and from what organ) depends on context and the nature of the policy or objective, and how controversial the subject matter is.  Often it could be a routine and uncontroversial matter within the remit of individual departments.  Sometimes the policy is decided upon on a higher level but can be implemented without legislation.  Sometimes legislation is needed or legislative approval through financial budgeting is required.

73.  On the other hand, in rebuttal, Mr Mok for the Director has drawn the court’s attention to the following uncontested evidence filed by the Director to show how the term “API” arose historically and what it has consistently and always been intended to mean by the Government since 1986 in imposing it as a licensing condition.

74.  Before 1986, the term “announcements of public interest” (instead of announcements in public interest) was used in the relevant statutory provisions in the 1964 Television Ordinance (section 24) and the 1973 Television (Amendment) Ordinance (section 25) (all now repealed) to describe the materials supplied by the Government which television licensees were required to broadcast without charge.[14]

75.  However, in 1986, the then Broadcasting Review Board (“the BRB”) recommended to the Administration to the following effect:

(1) Licensees should not be obliged to broadcast Announcements of Public Interest which have a clear commercial motive (eg, tickets for Urban Council performances) or which are concerned with recruitment to Government departments.[15]

(2) In future, only Announcements in the Public Interest (ie, APIs) (as opposed to Announcements of Public Interest) in the following sense should be produced with public funds, namely:

(a) that it is in the public’s interest to broadcast that message on TV (“Criterion 1”);

(b) that the message relates to such issues of public concern as health, safety, social welfare, legal obligations, availability of public resources and changes affecting traffic or other environmental factors (“Criterion 2”); or

(c) that the message is directly related to a government policy or operational objective (“Criterion 3”) (collectively “the 3 Criteria”).

76.  The Government endorsed the BRB’s aforesaid recommendation.

77.  Upon the recommendation of the BRB and the Administration, the Governor in Council then adopted the policy that, to qualify for airtime, the API must meet one of the 3 Criteria set out in above.[16]

78.  All these have been expressly set out and contained in the LegCo Brief dated 3 December 1986[17] (“the LegCo Brief”), which states relevantly as follows:

“On 2 December 1986. having considered the recommendations of the Broadcasting Review Board (BRB) on advertising and programme quality (summarized at Annex A) and the Administration’s comments on them, the Council advised and the Governor ordered:

…

(a) that Announcements in the Public interest (API) should be broadcasted without charge by the licensees; and that the authority to determine what material constitutes an API should be vested with the proposed Broadcasting Authority;

…

2. The background to and arguments supporting the above decisions are set out below. Some relatively minor recommendations of the BRB on advertising and programme quality are proposed to be dealt with by the proposed Broadcasting Authority to be established, and are summarised at Annex B.

…

Announcements of public Interest (APIs)

20. Under section 25A(1) of the Television Ordinance, television licensees are obliged to broadcast APIs free of charge. At present television APIs account for about seven minutes per service per day. The BRB considered that excessive use was being made of the statutory requirement on TV licensees to broadcast APIs and that licensees should not be obliged to broadcast APIs which had a clear commercial motive (e.g. tickets for Urban Council performances) or which were concerned with recruitment to Government departments. The BRB recommended that:

(a) the Government should pay for all APIs unless they were of an emergency nature or had a genuine public message such as announcements dealing with health, safety, social welfare and registration of persons;

(b) any dispute over what constituted an API should be resolved by the Broadcasting Authority or failing that the Radio and Television Complaints Tribunal.

21. In parallel with the BRB, the Administration has reviewed the types of APIs made in the last two years and by applying stricter criteria has also come to a conclusion that there are a limited number of APIs which are marginal cases. At present, the full name of API is Announcement of Public Interest. It is considered that Government should require licensees to broadcast Announcements in the Public Interest free of charge. Indeed, it is the intention that in future only Announcements in the Public Interest should be produced with public funds. To qualify as an API under the new definition, one of the following criteria would have to be satisfied:-

(a) that it is in the public’s interest to broadcast the message on TV;

(b) that the message relates to such issues of public concern as health, safety, social welfare, legal obligations, availability of public resources and changes affecting traffic or other environmental factors; or

(c) that the message is directly related to a government policy or operational objective.

22. The BRB recommended that it should still be the responsibility of the Administration to select topics for the production of APIs, but in the event of any dispute with the commercial licensees, the matter should be referred to the Broadcasting Authority whose decision shall be final. The Government endorses, the recommendation.

…

30. The Governor-in-Council advised that a press statement should be issued announcing the acceptance of the above recommendations on advertising and programme quality.”

79.  Thereafter, by the Television (Amendment) Ordinance of 1988, section 25 of the 1973 Ordinance was repealed and, in lieu of a reference to APIs in such statutory provision, the amended section 25A stated, among others, that “any material required ... pursuant to a condition attached to a licence to be broadcast by a licensee shall be broadcast without charge to the Government”.[18]

80.  Thereafter, as a matter of policy, the reference to APIs has since been contained in the television licences (which are issued by the CEIC) instead of statutory provisions.[19]  Indeed, such criteria have also been set out in the “Good Practice Guide to Publicity Campaigns (2015 version)” published by the ISD.

81.  In the light of the above relevant context to the term “API” since 1986, Mr Mok submits that the API carries the meaning of the 3 Criteria, as it is clear that the same is used as a term of a licensing condition when the CEIC (and formerly the Governor in Council) grants a TV or radio licence to a broadcaster.

82.  I agree with Mr Mok.

83.  The obligation to broadcast API is a condition imposed in the TV and Radio Licenses by the CEIC.  The condition is a standard one.  The identified 3 Criteria are the very nature of the materials that the Government, as the grantor of the licence, has required the licensee to broadcast for her (as a condition of the licence).  In the premises, it must be relevant to take into account what the CEIC (formerly the Governor in Council), the very entity who imposes the condition, has intended the term to mean.

84.  Importantly, the intended meaning of the term “API” has been clearly set out in and supported by objective and publicly available documents (ie, the LegCo Brief, and the “Good Practice Guide to Publicity Campaigns (2015 Version)”).  Its said meaning as a licensing condition is thus clear and objectively supported.

85.  In any event, in my view, the 3 Criteria meaning is also consistent with the objective meaning of “in the public interest”:

(1) Criteria 1 and 2 indeed cover and include what Mr Shieh has advocated above.

(2) Insofar as Criterion 3 is concerned, it is a matter of common sense that it would be in the public interest to have Government policies and operational objective published to the general public effectively and broadly, as this would increase the transparency and consistency of public administration and the exercise of executive powers.

86.  Mr Shieh relies on various determinations by Ofcom in the UK on the question of what amounted to “public service advertising” to support what he says the term “API” should mean in Hong Kong.  He submits that these determinations have laid down the following guidelines which are relevant to the determination of what “API” should mean:

(1) Public service advertising has a long history, placed by government departments imparting information and advice to the public about matters of health, road safety, fire prevention, or encouraging literacy.

(2) Political advertisements are not public service advertising.

(3) The primary determinant is that the advertisements purpose is to inform and educate the public by means of imparting information which is in the public interest.

(4) Other determinant factors include:

(a) the nature of the advertisements’ subject matter;

(b) the nature of the information or advice given;

(c) the manner in which information or advice is given;

(d) the timing and context of the advertisement’s broadcast;

(e) the degree of any controversy that might be associated with the subject matter and/or contents of the advertisements; and

(f) whether the advertisement confers some benefit to viewers to enable themselves to act in a beneficial way and change their conduct.

(5) A distinction is to be drawn between the Government’s wider policy (which may be of interest to the public) and whether the advertisement itself was of a public service nature (which is in the public interest).

87.  The Ofcom determinations referred to are: Ofcom in the Mayor of London Tower of Hamlets (Ofcom Broadcast Bulletin, Issue Number 222, 21 January 2013, pp 33 - 47) at pp 41 - 42; Ofcom in the Hillsborough Castle Agreement: Advertisement placed by the Office of the First Minister and Deputy First Minister (Ofcom Broadcast Bulletin, Issue Number 182, 23 May 2011, pp 3 - 22) at pp 9 - 10; and Ofcom in the “Bedtime Stories” Advertisement for Act on CO2 (Ofcom Broadcast Bulletin, Issue Number 167, 11 October 2010, pp 20 - 29) at pp 24 - 25.

88.  With respect to Mr Shieh, the reliance on these determinations is misplaced.  Their determinations are clearly distinguishable.

89.  First, the term under determination is in relation to “advertisement of public service nature”, which is materially different from the term of “API”.  API by itself (without limiting to “public service”) objectively encompasses a wider meaning.

90.  Second, and importantly, these determinations concerned with the objective meaning of “an advertisement of a public service nature” provided under section 321(7)(a) of the Communications Act 2003 in the UK.  This is very different from the present context. We are dealing a licensing condition imposed by the Government as the grantor of the licence, and where there are objective publicly available documents showing what the term has been intended to mean.

91.  For all the above reasons, I reject Mr Shieh’s contentions and accept Mr Mok’s submissions that the term “API” carries the meaning of the 3 Criteria.

D3.2 Did the Impugned Announcements fall within the meaning of API

92.  Mr Mok submits that it is clear that it is the Government’s policy as well as constitutional duty to take forward the constitutional development of Hong Kong as provided for in the Basic Law.  Hence, the message in seeking support for the passing of the Motion, which contained the Reform Proposals in relation to the election method for the CE,[20] is directly related to that government policy and the operational objective under that policy.  In the premises, the Impugned Announcements clearly fall within Criterion 3, and hence the meaning of API.

93.  Mr Shieh however submits that whether something is or is not a government policy must be viewed in its proper context, it cannot be whatever and whenever the Government says it is a policy, then that subject matter becomes a policy.  Leading counsel accepts that the Government is of course entitled to formulate a policy in the ways it regards as appropriate where the subject matter and the carrying out of that policy does not require the endorsement or passing of laws by the LegCo. For example, the Government is entitled to formulate a policy that it is good for the public to “clean Hong Kong” and to promote and implement it.

94.  However, in the present context, Mr Shieh contends that, where the reform for the election of the CE is constitutionally guided by the 5-step process, the “intention” of the Government to take forward Hong Kong’s constitutional development as regards the method for selecting the CE in 2017 is at most merely “a proposal to be voted on by the LegCo”.  It could only become a policy if that had been finally approved by the LegCo.

95.  Further, Mr Shieh emphasizes that it cannot be regarded as something “in the public interest” for the Government to seek public support to “assert their influence … on LegCo members to vote in favour of highly controversial amendments”.  Neither could it be regarded properly as Government policy to do so.

96.  With respect, I am unable to agree with Mr Shieh.

97.  As pointed out by Mr Mok, the natural meaning of the word “policy” includes “the general principles by which a government is guided in its management of public affairs, or the legislature in its measures”[21] (emphasis added).  The word “policy” therefore means the general principles or objectives the Government has set to guide its administration of public affairs or its exercise of power in an identified area or subject matter.

98.  As I mentioned above, it is generally in the public interest for the government to have a relevant policy in place, and to have it published to the public.  That would give better transparency and a reasonable degree of certainty to the public as to how the Government is to carry out its functions and duties in an identified area of public affairs.

99.  Once understood as such, there can be no reason in principle to limit the meaning of government policy to only those that can be successfully implemented or carried out, whether or not they require the endorsement or blessing of the LegCo.  As observed by Hartmann J in Leung Kwok Hung v President of the Legislative Council [2007] 1 HKLRD 387 at paragraphs 66 - 68, given the different constitutional roles provided in the Basic Law, it is for the Executive and the Administration to formulate policy, whereas the LegCo’s functions include considering bills and enacting legislation relating to those policies.

100.  Take for example that the Government decides as a matter of policy in its administration of public affairs to discourage the general public from smoking.  Its implementation may also partly include the Government seeking to introduce relevant legislations to ban or restrict smoking in public areas or at workplaces.  The success or failure of having the legislations passed by the LegCo cannot then render it not a Government policy.

101.  As the meaning of policy shows, in the present circumstances, it must be open to the Government to form the policy that, as a matter of its administration principles and objectives, it would seek to reform the CE election method in the ways it regards to be in compliance with what is permitted by the constitutional provisions and practical reality.  The Government may well be correct or wrong in its views as to what that reform proposal should be, and the LegCo may disapprove that at the end of day under the 5-step process (as in the present case).  It however would not then make it not a Government policy, albeit it is one that eventually cannot be implemented to the end.

102.  In the premises, I agree with Mr Mok that:

(1) So far as the CE and the Government are concerned, the “operational objectives” relevant to the policy to take forward Hong Kong’s constitutional development regarding the method for selecting the CE in 2017 are reflected in the constitutional duties and functions of the CE and the Government’s roles in the 5-step process, namely, those related to (a) reporting that there is a need to amend Annex1 (step1); (b) proposing the relevant amendments (related to step2); and (c) the CE consenting to the amendments (step 4).

(2) The taking forward of Hong Kong’s constitutional development, together with the operational measures to be taken by the CE and the Government in pursuant therefore, constitute the relevant “government policy or operative objective” in the present case.

(3) The Impugned Announcements in seeking to promote the Reform Proposals and asking the public to support it is directly related to the above policy and operational objectives.  They therefore fall within the meaning of API under Criterion 3.

103.  Mr Mok has also further submitted that, in any event, the Impugned Announcements also fall within Criteria 1 and 2. Given my above conclusion, I do not find it necessary to determine them.

D3.3  Does the Authority have a statutory duty to vet whether materials supplied by the Government are API before they provided to the broadcasters for broadcast

104.  Mr Shieh has summarized the two challenges raised by the applicant under this ground as follows:

(1) The Authority failed to direct its mind or consider at all whether the Impugned Announcements were (a) political in nature; or (b) API’s.

(2) The Authority abdicated its duty and power over broadcasting materials and allowed itself to be a rubber stamp for the Director.

105.  In this respect, I have concluded above that the Impugned Announcements are API.  Further, I think it is fair to say there is no real dispute that they can be regarded as political in nature.[22]

106.  In the premises, central to these challenges is the question of whether the Authority has a statutory duty to vet the materials supplied by the Government through the ISD.

107.  The Authority is a statutory body created under the Communications Authority Ordinance (Cap 616) (“the CAO”) for the purpose of regulating broadcasters.  Its powers include all the functions conferred on its predecessors and all incidental powers necessary for the performance of its functions pursuant to sections 4 and 5 of the CAO.

108.  The question of whether the Authority has a duty to vet the materials supplied by the Government as API is thus a question of statutory construction.

109.  In this respect, it is common ground that there are no express provisions in the CAO imposing such a statutory duty.

110.  Mr Shieh contends however that the duty is implied when the relevant provisions under the CAO are properly construed in its object and purpose, and against the BMPO and the TO.  Leading counsel’s submissions run as follows.

111.  As referred to above, the CAO is to regulate broadcasters with powers necessary for the performance of its functions pursuant to sections 4 and 5 of the CAO.  These include powers provided under:

(1) Section 9(1)(c) of the BMPO: “where the Authority shall administer the provisions of licences … that confer a function on the Authority”, and subsection (d): “to secure proper standards of television and sound broadcasting with regard to both programme content (including advertisements).”

(2) Section 6A(3)(a) of the TO, in relation to the exercise of power under the TO, the Authority in “making a determination, direction or decision under this Ordinance, shall only do so on reasonable ground and having regard to relevant considerations.”

112.  The object and purpose of the CAO read together with the BMPO and the TO can therefore be clearly seen: under one umbrella regulatory authority, the Authority had a duty to secure proper standards of broadcasts, and when making any determination or direction to broadcasters, shall only do so “having regard to relevant considerations.”

113.  Under the licensing condition (for example, Condition 18.1), the Authority has a power to issue direction for broadcasters to broadcast Government supplied materials. This will only be necessary if the materials are API (but not otherwise).  In the premises, as a matter of necessary implication, a public authority who has the power to direct that something must be done, is under a duty to take reasonable steps to acquire the information reasonably required to enable him to make that decision: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, at 1065b per Lord Diplock.

114.  The existence of such a duty is further underlined (says Mr Shieh) by the very fact that it is regarded as necessary to interpose the Authority between the Government and the broadcasters for giving the directions.  If the Authority is only to act as a rubber stamp or post-box without any duty to examine whether the materials supplied are indeed API, one asks rhetorically what is the purpose of imposing the Authority in between in the first place?

115.  Notwithstanding Mr Shieh’s persuasive submissions, I am not eventually convinced.  My reasons are these.

116.  As submitted by Mr Chan for the Authority, it is well established that public law powers and duties should not be lightly implied.  This is particularly so when there exists a detailed and extensively provisioned statutory framework.  The court will only imply a statutory duty or obligation when it is clearly necessary to do so

117.  Hence, on implying statutory duties, the learned editors of Craies on Legislation (10^th edn) observe at paragraph 12.1.1 that:

“As to the creation of obligations, similarly the courts will presume that legislation does not intend to impose an obligation unless it does so expressly or by clear implication.

In determining whether an Act has impliedly created a statutory duty the courts will consider, in part, whether the system established by the Act can properly work without the implied creation of the duty and in part whether the provisions of the Act have provided, in effect, a system for the enforcement of the duty that gives it sufficient meaning...” (emphasis added)

118.  Thus, as matter of general principle:

(1) Public bodies generally have no free-standing function but can only act according to statutory terms giving them power: R v Somerset County Council, ex p Fewings [1995] 1 All ER 513, 524F per Laws LJ.

(2) Generally, a statutory power will be construed as impliedly authorising everything that can fairly be regarded as incidental or consequential to the power itself: see Wade & Forsyth, Administrative Law (11^th edn) pp 177 - 178, Virdi v Law Society (Solicitors Disciplinary Tribunal intervening) [2010] 1 WLR 2840 at paragraphs 30 - 33 per Stanley Burnton J); section 40 of the Interpretation and General Clauses Ordinance (Cap 1).

119.  Further, if an alleged duty hinders the effective working of a system, that a fortiori militates against its implication.  This ties in with the broader interpretative principle that a proposed statutory interpretation should be partly judged against its practical implications: Lord Neuberger NPJ in T v Commissioner of Police (2014) 17 HKCFAR 593 at paragraph 281; and R (on the application of Edison First Power Ltd) v Central Valuation Officer [2003] 4 All ER 209, at paragraphs 116 - 117 per Lord Millett.

120.  Bearing these principles in mind, I agree with Mr Chan that no such API pre-vetting duty on the Authority as submitted by the applicant can be implied.

121.  First, the undisputed evidence shows that the present regulatory regime under the relevant statutory provisions in relation to TV and radio broadcast content is post-broadcast and complaint driven.  There is no pre-censorship of broadcast material by the Authority of any kind (whether Government supplied or not).[23]

122.  This approach has indeed been codified and publicised through the relevant Codes of Practice for TV and Radio issued under section 3 of the BO and section 19 of the BMPO.  The approach is also codified by statute in section 11 of the BMPO, which sets out statutory procedures for handling complaints about material which has already been broadcast.

123.  The statutory intention for the general approach (and the scope of that approach) is also reflected in the specific and limited exceptions expressly provided in section 36 of the BO and section 13M of the TO.  These allow (but do not require) the Chief Secretary to apply to Court for pre-broadcast prohibition orders against the most objectionable forms of content: materials likely to incite hatred against racial or other specified groups, result in a general breakdown of law and order, or gravely damage public health and morals.[24]

124.  Further, as rightly pointed out by Mr Chan, the unchallenged evidence shows that there are also good policy and practical reasons that work against implying a duty on the Authority to pre-vet broadcast materials, Government supplied or otherwise:

(1) An obligation to preview or pre-censor broadcast content risks stifling editorial independence and free expression and limits a broadcaster’s ability to respond quickly to current affairs.[25]

(2) From the Authority’s perspective, a pre-vetting duty would also impose an unworkable burden, since the volume of materials broadcast across TV and radio on any given day is immense.  Even if one is looking at API materials alone, these usually exceed 150 in any given week.[26]

125.  All this accounts for, and in turn is reinforced by, the mechanism expressly provided in sections 11(2)(b) and 11(2A) of the BMPO.  These provisions require the Authority to refer any complaint involving “material supplied for broadcasting by the Government and broadcast by a licensee” directly to the Government. These provisions show a legislative intent that:

(1) the Government will supply materials to licensees for broadcasting;

(2) complaints about such materials should be handled on a post-broadcast basis (consistent with the approach to be adopted to all other broadcast materials); and

(3) the Authority has no role to play in the scrutiny of such materials, whether pre- or post-broadcast.

126.  Mr Shieh’s contention that, without a pre-vetting duty, the Authority acts only as a post-box or rubber stamp in relation to Government supplied materials, is in my view not made out given the post-broadcast complaints mechanism.  As pointed out by Mr Chan, the issue at hand is whether the Authority has a pre-vetting duty as a matter of necessary implication.  Assuming there is a properly functioning post-broadcast complaints mechanism (which the applicant does not dispute), there is no basis for claiming that the absence of a pre-vetting regime must be contrary to the statutory intention or otherwise unlawful.

127.  Further and in any event, the Authority’s proper role as regards Government supplied materials is administrative and facilitative.  The relevant licence conditions provide the basis for the Authority to perform this role.  The steps the Authority takes to execute this role have been explained in paragraphs 42 - 45 of Fong Kuk’s Affirmation as follows:

“The CA’s approach to the Government’s APIs and the role of the ISD

42. As the licence condition requiring Free TV, Pay TV and Radio Licensees to broadcast APIs supplied by the Government was imposed by the CEIC, the CA issues General Directions to each of the Free TV Licensees, Pay TV Licensees and Radio Licensees requiring them under the terms of their respective licences, to broadcast APIs in accordance with schedules provided by the ISD. The CA has delegated its powers to handle matters relating to the General Directions to OFCA, the CA’s executive arm. Copies of the General Directions in relation to such messages issued by the CA to the following licensees are included in tab 6 of the exhibit marked ‘FK-1’:

Licensee	Type of licence	Date of direction	Exhibit FK-1 Tab 6 Page No.
Television Broadcasts Limited	Free TV	03.10.2001 05.11.2007	1-2
Asia Television Limited	Free TV	03.10.2001 05.11.2007	3-4
Hong Kong Cable Television Limited	Pay TV	03.10.2001 03.02.2005	5-8
PCCW Media Limited	Pay TV	25.02.2015	9-12
TVB Network Vision Limited	Pay TV	31.10.2013	13-15
Hong Kong Commercial Broadcasting Company Limited	Analogue Sound Broadcasting Licence	03.10.2001	16
Metro Broadcast Corporation Limited	Analogue Sound Broadcasting Licence	03.10.2001	17
Metro Broadcast Corporation Limited	Digital Sound Broadcasting Licence	13.07.2011	18-27
Digital Broadcasting Corporation Hong Kong Limited	Digital Sound Broadcasting Licence	13.07.2011	28-37
Phoenix U Radio Limited	Digital Sound Broadcasting Licence	13.07.2011	38-47

43. The ISD is responsible for preparing for each licensee a schedule for the broadcast of the Government’s APIs for the following week (the ‘Broadcasting Schedule’). Every week, the ISD sends a copy of the Broadcasting Schedule directly to each of the Free TV, Pay TV and Radio Licensees. A copy of the Broadcasting Schedule is also sent to OFCA. An example of a Broadcasting Schedule is at tab 7 of the exhibit marked ‘FK-1’. As OFCA understands it, the ISD also arranges for the corresponding video, audio and scripts of the APIs, to be sent to each of the Free TV, Pay TV and Radio Licensees directly through the production companies. The ISD is not required to, nor does it provide the video, audio and scripts of the APIs to OFCA.

44. The ISD conducts sample checks on the broadcast of the material it has supplied to the licensees to ascertain whether they are complying with the Broadcasting Schedules. Each month the ISD sends its findings to OFCA. If the ISD has identified instances of non-compliance with the Broadcasting Schedule, OFCA will seek an explanation from the licensee in question. If the non-compliance is confirmed, OFCA will usually request the licensee to provide additional API broadcasting slots as ‘compensatory’ measures. The ISD will decide whether it agrees to the ‘compensatory’ arrangement. If the ISD is content with the arrangements, it will send a schedule of the ‘compensatory’ broadcasts directly to the licensee with a copy to OFCA for its information.

45. Accordingly, the CA plays only a facilitative role by issuing General Directions to Free TV and Pay TV and Radio Licensees, requiring compliance with the licence conditions imposed by the CEIC, to implement the Government’s policy requirement that licensees broadcast, without charge to the Government, material supplied by the Government including the Government APIs. A copy of an example of correspondence passing between the CA, a licensee and the ISD is at tab 8 of the exhibit marked ‘FK-1’.”

128.  Mr Shieh submits that these purported administrative and facilitative functions or roles are insignificant and do not require the Authority to carry them out.

129.  In my view, even if the fact that roles and functions are purely facilitative and administrative in nature, they still show that Authority is not, as submitted by Mr Shieh, interposed between the Government and the broadcasters effectively for no useful purpose.  In particular, the relevant licensing conditions, such as condition 18.1 of a TV licence, show that one of the principal functions of the Authority in relation to the broadcast of API is to direct the broadcaster as to the time, period, channel, language and whether within or without such programme these materials should be broadcast.[27]  This is not an insignificant role and task,[28] and is one which is commensurate with its role as a regulator.

130.  In the premises, there is no basis for contending that the regulatory system under the BO, the TO and the BMPO cannot “properly work” absent such an implied duty.  In other words, it is not necessary to imply such a pre-vetting duty on the Authority in order to make the regulatory system work.

131.  Second, the legislative history shows that the Administration and legislature had consciously decided against a pre-vetting regime in this context:

(1) The now defunct Television Ordinance (Cap 52) (“the TVO”) had specific provisions in place empowering the Authority’s predecessor to pre-vet materials intended for broadcasting and potentially prohibit the broadcasting of TV programmes.[29]  The same provisions were however specifically removed or replaced when the TVO was amended in 1993,[30] indicating a clear intention of the legislature to do away the pre-vetting regime.

(2) Indeed, if the Government and the legislature intended to have a pre-vetting regulatory scheme, it would have provided it expressly in the relevant legislations: see the pre-amended TVO, and more recently, the Film Censorship Ordinance (Cap 392) where a pre-vetting regime is expressly provided for, especially at sections 8 - 10.

132.  This shows objectively that it is a clear intention of the Administration and legislature not to impose a pre-vetting regulatory mechanism relating to TV and radio broadcast materials.  This plainly goes against an implication of implying a pre-vetting duty to introduce a pre-vetting scheme by the backdoor.

133.  For these reasons, the Authority’s functions do not warrant the implication of any pre-vetting power as “incidental or consequential” to those functions.  A fortiori, there cannot be a duty arising from such a power by clear necessary implication.

134.  I therefore reject the applicant’s ground of challenge that the Authority has a statutory duty to examine the materials supplied by the Director to decide whether they are API or whether they are political advertisements.

135.  This takes me conveniently to look at the Exemption Ground.

D4.    The Exemption Ground

136.  Under this ground, as pleaded in the Re-Amended Form 86, the applicant says the Exemption provided to the Government is unconstitutional because it infringes BL25 and HKBOR22 (which protect equality of treatment) when read in light of BL27 and HKBOR16 (which protect freedom of expression).

137.  The applicant contends that in banning political advertising in broadcasting media but at the same time exempting the Government from the scope of the ban, the Government is being favoured because of its status and this contravenes BL27 and HKBOR16, read in conjunction with HKBOR22 and BL25.

138.  With the greatest respect to Mr Shieh, I am not persuaded.

139.  First, BL27 and HKBOR16, which concern with the protection of freedom of expression, provide as follows:

“Article 27 [of the Basic Law]

Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

“Article 16 [of the HKBOR]

Freedom of opinion and expression

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary—

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals.”

140.  It is trite the freedom of expression is not absolute and can be restricted in law subject to the proportionality test.  In this respect, it has been accepted by Mr Shieh (at least for the present purpose) that the ban on political advertising on TV and radio is not unconstitutional as, even though the right of freedom of expression is engaged, such a ban is proportionally justified.  Indeed, the applicant has reiterated that he is not seeking to challenge the ban in this judicial review at all.

141.  This acceptance is in any event clearly right as it has been authoritatively held by the House of Lord in England in Animal Defenders International v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312 and the European Court of Human Rights (by majority) in Animal Defenders International v United Kingdom (2013) 57 EHRR 21 that a similar ban on political advertising in the UK is justified and thus not in violation of Article 10 of the Convention, which is equivalent to HKBOR16.

142.  In this respect, it is pertinent to note what Lord Bingham has said at paragraph 26 - 28 of Animal Defenders as follows:

“26 There is much common ground between the parties to this appeal. Thus it is accepted that section 319 and 321 of the 2003 Act constitute an interference with the claimant’s exercise of its right to free expression, and article 10 of the Convention is engaged. It is accepted that this is a restriction prescribed by law and has the legitimate aim of protecting the rights of others, namely their democratic rights. The only issue is whether the restriction is necessary in a democratic society. And even here there is common ground. For a restriction to be necessary there must be a pressing social need for it, and it is for the member state which imposes the restriction to justify it. While the right to freedom of expression is not absolute, and no one has a right of access to the airwaves, the importance of free expression is such that the standard of justification required of member states is high and their margin of appreciation correspondingly small, particularly where political speech is in issue. The problem here is not one which can be resolved by exercise of the interpretative power given to the courts by section 3 of the 1998 Act. All this is agreed. Yet the importance of this case to the functioning of our democracy is in my view such as to call for the rehearsal of some very familiar but fundamental principles.

27 Freedom of thought and expression is an essential condition of an intellectually healthy society. The free communication of information, opinions and argument about the laws which a state should enact and the policies its government at all levels should pursue is an essential condition of truly democratic government. These are the values which article 10 exists to protect, and their importance gives it a central role in the Convention regime, protecting free speech in general and free political speech in particular.

28 The fundamental rationale of the democratic process is that if competing views, opinions and policies are publicly debated and exposed to public scrutiny the good will over time drive out the bad and the true prevail over the false. It must be assumed that, given time, the public will make a sound choice when, in the course of the democratic process, it has the right to choose. But it is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated. It is the duty of broadcasters to achieve this object in an impartial way by presenting balanced programmes in which all lawful views may be ventilated. It is not achieved if political parties can, in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction. Nor is it achieved if well-endowed interests which are not political parties are able to use the power of the purse to give enhanced prominence to views which may be true or false, attractive to progressive minds or unattractive, beneficial or injurious. The risk is that objects which are essentially political may come to be accepted by the public not because they are shown in public debate to be right but because, by dint of constant repetition, the public has been conditioned to accept them. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.” (emphasis added)

143.  If the ban itself is not an infringement of the right to freedom of expression, it is difficult to see how, and indeed illogical to say that, an exemption from it can be regarded conversely as a restriction and thus violation of that right.

144.  Mr Shieh at the hearing seeks to rely on what Lord Bingham has said at the end of paragraph 28 of Animal Defenders about “a right to be protected against the potential mischief of partial political advertising” to support his contention that the exemption infringes the rights under BL27 and HKBOR16.

145.  This reliance is misplaced.  What Lord Bingham is referring to is not a right arising from the freedom of expression, but a right of other people the protection of which justifies the restriction of the right to freedom of expression.  That is not a right of freedom of expression nor is it a right protected under BL27 and HKBOR16.

146.  The applicant therefore fails to show that the Exemption violates the rights under BL27 and HKBOR16.

147.  Mr Shieh next contends that the Exemption is discriminatory in nature and thus violates the protection of equality of treatment provided under BL25 and HKBOR22.

148.  BL25 and HKBOR22 effectively provide for the equality of treatment and prohibit against unequal treatment based on various identified personal characteristics and status.  They provide respectively as follows:

“Article 25 [of the Basic Law]

All Hong Kong residents shall be equal before the law.”

“Article 22 [of the HKBOR]

Equality before and equal protection of law

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

149.  In my view, this contention must also be rejected for the following reasons.

150.  First, I simply cannot see how the applicant’s right to equality of treatment is infringed or violated in the present case.  He is not a person who wishes to put forward political advertisements but is unable to do so because of the ban.  In the premises, he has not been unfavourably treated vis-à-vis the Government by reason of the ban.  In other words, he is not being discriminated because of the Exemption.

151.  The applicant simply has no basis to bring a constitutional challenge against the Exemption based on discrimination.

152.  Second, and in any event, I do not find the Exemption amounts to discrimination prohibited under BL25 or HKBOR22.

153.  Right to equality as protected under BL25 and HKBOR22 is about the principle in law that like should be treated alike.

154.  In the premises, the law does not treat differential treatment between two groups of person as discrimination if there is sufficient relevant difference between them to justify the differential treatment.[31]

155.  Further, as observed by Ma CJ in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at paragraphs 58 - 59, in considering this particular question of whether there is sufficient difference to justify differential treatment, the court usually would also have to take into account the issue of justification as well.  As put by Ma CJ at paragraph 58(1), the essential object when considering the constitutional right to equality is to ultimately ask the simple question: “Is there enough relevant difference between X and Y [the comparators] to justify differential treatment?”

156.  In this respect, I accept Mr Mok’s submissions that the Government stands in a unique position relevantly different from other Hong Kong residents so far as political advertising is concerned.  This is so because:[32]

(1) The Government has the unique constitutional power and function under BL62(1) to “formulate and implement policies”, it also has a duty to explain its policies, seek public support, encourage, participate and introduce laws and regulations for the good of Hong Kong as a whole.  In this respect, it must be noted that many, if not, all of the Government’s policies can be regarded as political in nature in some sense.[33]  Hence, if the ban also applies to the Government, it cannot effectively and efficiently carry out its functions in administrating Hong Kong.  For example, it cannot be seriously suggested that the Government should be banned from advertising the date of an upcoming election and the message to encourage the electors to vote (message which can be regarded as political in nature), or the commencement of consultation period seeking views on political reform and encouraging people to participate in it (which message can also be regarded as political in nature).  Indeed, in relation to the latter example, the applicant in the present case has expressly not sought to challenge the Government’s earlier series of advertisements broadcast through TV and radio in relation to the consultation exercise of the reform of the CE election method for 2017.

(2) In Hong Kong (unlike say in UK), the Government in power does not belong to any political party, so that even if it seeks public support for its policies through broadcasting of APIs (even if it is political in nature), it will not (unlike in the UK) accrue to the direct benefit of one political party.  In this respect, it is pertinent to note that under section 31 of the Chief Executive Election Ordinance (Cap 569), the CE cannot have any political affiliation.  Conversely, under BL79(4), a LegCo member cannot be a public servant.

(3) The Government, by its nature, has to cater for many different sectors of society and make non-partisan decisions in the public interest.  In other words, the Government in its administration of public affairs does not, and should not, act in a partisan manner.  The role of members of the public and political parties has no comparison to the Government’s position.

(4) As Lord Bingham observes at paragraph 28 of Animal Defenders, the context of a ban on political advertising is to seek to maintain a level playing field insofar as practicable and to protect the public against the mischief of partial political advertising.  Viewed in this context, the inherent non-partisan position of the Government under its constitutional roles and functions obviously puts it in a relevantly different position from the member of the public or other political entities.

(5) Further, under the above constitutional framework, it must be a legitimate aim for the Government to be able to make use of APIs through radio and TV broadcasts (which have the highest infiltration rate to the public mass) to promote and educate the public on its policies and legislative proposals.  This is also a facet of open and transparent government, and a means to increase public accountability.[34]

(6) TV and radio services can reach its audience in a cost-effective way, particularly free TV services (which have high penetration rate of 99%).  The provisions requiring licensees to broadcast materials from the Government by TV and radio services is rationally connected with the legitimate aim to effectively promote and educate the public on its policies and legislative proposals.[35]

(7) Given the effectiveness of free TV and radio broadcasting for the purpose of promoting and educating the public on Government policies and legislative proposals (which may be political in some sense), there is no comparable means (not by internet, advertisement on buses and MTR trains, etc).

(8) Section 23(3) of the BO and paragraph 5(b)(ii) of the Radio Code do not infringe freedom of expression.  The provisions which restrict freedom of expression are Schedule 4, clause 12 of the BO and paragraph 28 of the Radio Code; as mentioned above, these are accepted by the applicant as necessary restrictions.  Indeed, the applicant says he wants to enjoy the benefit of such restriction.  The removal of section 23(3) of the BO and paragraph 5(b)(ii) of the Radio Code will not have the effect of enabling freedom of expression in the area of political broadcasting.  All it means is that the Government is hampered in effectively providing information to the public on public policies of some controversy and enlisting the public’s support and cooperation regarding such policies.

(9) On the other hand, even given the restriction of political advertising, individuals and political parties are not restricted on other types of media to voice their opinions or advocate their position, including appearing in TV and radio programmes for such purpose.

157.  In the premises, the Government is in a sufficiently relevantly different situation from other persons to justify the differential treatment under the exemption.  The exemption therefore does not amount to discrimination prohibited under BL25 and HKBOR22.

158.  In this respect, it is pertinent to note, as demonstrated in the above considered Ofcom cases, and as noted by Lord Bingham at paragraph 6 of Animal Defenders, a similar statutory exemption is also provided in the UK where the media is also permitted to publish Government’s advertisements which are political in nature if they relate to public service.

159.  For these reasons, I reject the Exemption Ground as well.

D5.   Delay

160.  The Authority and the Director both alternatively oppose the judicial review on the basis of delay to the extent that, even if the applicant is successful on any of the grounds of judicial review, the court should refuse to exercise its discretion to grant the reliefs sought.

161.  Given that I have rejected all the grounds of judicial review, strictly speaking I do not have to deal with this basis of opposition.

162.  However, for completeness, I would briefly dispose of it as follows.

163.  Under Order 53, rule 4(1) of the Rules of the High Court, an applicant shall make an application for leave to apply for judicial review promptly and in any event within three months from the date “when the grounds for the application first arose”.  At the substantive hearing stage, the court may take into account the delay to decide whether or not to exercise its discretion to grant the reliefs sought.[36]

164.  The Director and the Authority both contend that the grounds for the present application first arose at the latest on 2 September 2014.  This is so as:

(1) It is the Government’s position that the Impugned Announcements form part of a larger publicity campaign by the Government concerning the proposed constitutional reform process.[37] All the APIs broadcast for this purpose have the same objective – to publicize and promote the 831 NPCSC Decision and the proposed reform proposal that is going to be based on it, to take forward the constitutional development to achieve universal suffrage.

(2) This is demonstrated upon an examination of the transcripts of the four more recent APIs[38] going back to “Your Vote, Don’t Cast It Away!” (broadcast between 7 and 28 August 2014), whereby each API advances a virtually identical message of supporting and promoting the proposed constitutional reform.

(3) The applicant’s complaint is that the Impugned Announcements are “transparently political” and “seek to persuade and influence the view of the public towards a controversial political subject which will soon go before LegCo”.[39] This clearly refers to the 831 NPCSC Decision as the proposed reform package is based on it.

(4) Accordingly, it is plain that the grounds of the application arose at the latest upon the decision to broadcast the API “Your Vote, Gotta Have It!” on 2 September 2014, after the 831 NPCSC Decision.  There is no difference in substance between that API and the Impugned Announcements, and the grounds of review apply to any of the APIs broadcast from 2 September 2014.  In the circumstances, the applicant should have taken out his leave application at the latest three months from 2 September 2014, which is early December 2014.

(5) The applicant’s leave application is therefore grossly out of time, and there is no good reason advanced by him to say why time should be extended (other than saying that the application concerns matter of great general public importance).  The court should not exercise its discretion to grant the relief sought even if the applicant is successful on merits.

165.  Mr Shieh however says there is clearly no delay as the grounds in support of this application arose only on 22 April 2015 when the Impugned Announcements were broadcast.  This is so as, unlike the other APIs referred to by the Director, the Impugned Announcements were broadcast after the completion of all the public consultations that had been carried out in relation to the political reform.  Thus, the previous materials broadcast can well be argued to fall within the meaning of public interest as they were to encourage the public to submit their views in relation to the proposal to be formulated under the reform.  They therefore can reasonably be properly considered as APIs.  However, once the consultation exercise had been completed and the Government has already formulated the Reform Proposals, the Impugned Announcements cannot possibly be considered as API for the reasons advanced above.  This is the point of time that the grounds for bringing the judicial review did arise, which is 22 April 2015.  The leave application was filed on 6 May 2015.  There is therefore no delay.

166.  Mr Shieh further submits that it is trite that where there is a continuing policy or arrangement, or a continuing breach of fundamental rights, time does not run against an applicant until that state of affairs has come to an end: R v Rochdale Metropolitan Borough Council [1994] ELR 89, 100H; R (on the application of G) v Secretary of State for Justice [2010] EWHC 3407 at paragraph 11.

167.  There is some force in Mr Shieh’s submissions.  However, I do not think I need to come to a conclusion on these.  This is so since, in my view, even if there is a delay in the application for leave to apply for judicial review under all the grounds of judicial review, I am satisfied that notwithstanding the delay, I would have still exercised the discretion to grant the relief if the applicant was successful in this judicial review on merits.  This is so because:

(1) The applicant’s explanation as to why he only took out the leave application when the Impugned Announcements were broadcast is, in the context, a reasonable one.

(2) The delay is about five months (from early December 2014 to early May 2015), which should not be regarded to too substantial.

(3) Further, the issues raised are important, in particular the one concerning the constitutionality of the Exemption.

(4) The principal and substantive reliefs sought are the declarations as to the proper meaning and scope of API and the constitutionality of the Exemption.  Granting of these reliefs (even with the delay) is unlikely to cause any substantial hardship or prejudice to anyone, and to be detrimental to good administration.

(5) In the premises, I would not have refused to exercise my discretion to grant the reliefs sought because of the delay alone.

E.   CONCLUSION

168.  For all the above reasons, the applicant fails in all his grounds of challenge on merits.  I will therefore dismiss this judicial review.

169.  I would make an order nisi that costs of the judicial review (including the costs of the leave application) be to the Authority and the Director, to be taxed if not agreed, with certificate for two counsel.  The Authority and the Director are entitled to have each of their own costs borne by the applicant, as each of them are justified to be separately represented and to oppose the judicial review on the grounds that are made specifically against each of them.  The applicant’s own costs shall be taxed in accordance with legal aid regulations.

170.  Further, I have made a costs order nisi in the Interlocutory Decision that the costs of the interlocutory injunction application (which I have refused) be in the cause of the judicial review.

171.  The Director has asked to vary that costs order nisi to an order that the costs be paid to the Director in any event.[40]  The Director has submitted that this is an appropriate case to order costs to be paid against the applicant for a failed interlocutory injunction application because that application fell significantly short of satisfying the threshold for the grant of relief sought.  This is so as the court has found (in the Interlocutory Decision) against the applicant on both (a) his case on the merits; and (b) balance of convenience.[41]

172.  I do not accept Mr Mok’s submissions.

173.  Costs is always at the discretion of the court by taking into account all the circumstances of the case to see what is a fair and just order.

174.  In this respect, after taking into all the circumstances of the present case, I am of the view that it is fair and just to order the costs of the interlocutory injunction application to be in the cause of the judicial review:[42]

(1) First, the present case raises issues of public importance, namely, whether the Government’s conduct in using API timeslots in television and radio licensees to broadcast what the applicant has described as “political advertisements” or “advertisements of a political nature” was lawful.

(2) Secondly, while the court was not satisfied the applicant met the threshold for mandatory injunctive relief, the court did grant leave on all the grounds which the applicant applied for leave for.  This indicates not only that the application for judicial review and an interim injunction was not baseless, but involved reasonable arguments that engaged issues of public importance.

(3) Thirdly, the focus of all parties’ arguments at that time was on the prospects of success and whether leave ought to have been granted.  After all, the applicant first had to convince the court that there was a reasonable prospect of success to overcome the hurdle for leave.  So while there were arguments concerning injunction and balance of convenience, those arguments were peripheral to what was in essence a leave application hearing which took up the bulk of the time and attention of all counsel and the court.  As submitted by Mr Shieh, while it may be said that this is something that goes to taxation, where minimal time has been spent on arguing the interim relief aspect of the case, the court is entitled to take the view that it would be disproportionate to make a separate costs of order for the interim relief application at this stage.

175.  I will therefore make absolute the interlocutory application costs order nisi.  The costs of the application to vary that costs order nisi shall also be in the cause of the interlocutory injunction application.  The applicant’s own costs be taxed in accordance with legal aid regulations.

176.  Lastly, I must thank counsel for their very helpful assistance in these matters.