RADIO TELEVISION HONG KONG PROGRAMME STAFF UNION AND ANOTHER v. COMMUNICATIONS AUTHORITY

HCAL 1685/2020

[2021] HKCFI 3497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1685 OF 2020

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JUDGMENT

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INTRODUCTION

1.  This is an application for judicial review of the decision (“the Final Decision”) of the Communications Authority (“the Authority”) dated 19 May 2020 concerning an episode (“the Episode”) of a television programme called Headliner (頭條新聞) broadcast on RTHK TV 31 and RTHK 31A channels of Radio Television Hong Kong (“RTHK”) and Jade channel of Television Broadcasts Limited on 14 February 2020 that (i) the complaints in respect of the accuracy of factual contents, denigration of and insult to the Hong Kong Police Force (“the Police”), and expression of a sufficiently broad range of views in personal view programmes (“PVPs”) were substantiated, and (ii) RTHK should be warned to observe more closely the relevant provisions in the Generic Code of Practice on Television Programme Standards (“the TV Programme Code”).

BACKGROUND FACTS

(i)     The Episode

2.  Headliner was a television programme produced by RTHK.  Its aim was to shed light on current affairs in Hong Kong, China and the rest of the world through satire.  It was first aired on 4 April 1989, and its latest episode was aired on 19 June 2020.

3.  The Episode, which was aired on 14 February 2020, included two comedy sketches, known as “無品芝麻官” and “驚方訊息”, which touched upon the anti-pandemic efforts and the usage of face masks by the Police in a satirical tone.

(1) In “無品芝麻官”, which featured a number of skits, a doctor (played by one of the programme hosts) debated with another character who complained about those medical staff who had taken industrial action.  Amongst other things, the doctor remarked that the reason for the medical staff to take industrial action was that they lacked personal protective equipment, and another character responded “醫生呀, 你唔夠口罩就早啲出聲吖嘛, 衙差就大把有得剩” (Doctor, you should voice out your concern early if you do not have enough face masks, as there is a lot of surplus stock for constables) (“Remark A”).

(2) In “驚方訊息”, the host “忠勇毅” (played by “Wong”), dressed in police uniform and with his hands and neck wrapped with rubbish bags, emerged out of a rubbish bin on the rooftop of a building and remarked, amongst other things: “依家仲取消徒步巡邏, 唔使行咇, 將當值時暴露喺空氣中嘅機會, 減到近乎零呀!” (Beat patrols have now been abolished, thus reducing the chance of exposure to open air to nearly zero while on duty) (“Remark B”) and “趕緊加入我們” (Urgently join us) (in Putonghua), and then retracted back into the rubbish bin (“the Police Comedy Sketch”).

(ii)     The complaints

4.  On 15 February 2020, the Chief Superintendent of the Police Public Relations Branch (“the PPRB”) on behalf of the Commissioner of Police (“the Commissioner”) lodged a complaint with the Director of Broadcasting (“the Director”) about the Episode.  In the complaint letter, it was alleged that the Episode provided false information about the Police hoarding personal protective gear, and ignored the hard work and anti-pandemic efforts of the Police.

5.  By a press release dated 18 February 2020, a spokesman for the Commerce and Economic Development Bureau (“the Bureau”) stated that the Office of the Communications Authority had received more than 200 complaints about the Episode.  The Bureau stressed that, as stipulated in the Charter of Radio Television Hong Kong (“the Charter”), RTHK must adhere to the editorial principles of being accurate and impartial in the views that it reflected, and the overall programme production and editorial stance of RTHK should fully demonstrate the public purposes specified in the Charter.

6.  On 3 March 2020, the Commissioner of Police (“the Commissioner”) lodged a second complaint about (inter alia) the Episode with the Director, stating that programmes produced by RTHK should be based on facts and not mislead the viewers.  He further alleged that various editions of “驚方訊息” (including the Police Comedy Sketch broadcast on 14 February 2020 and another sketch broadcast on 28 February 2020) caused viewers to have wrong impressions on and misunderstandings about, and lose confidence in, the Police.

7.  Apparently, the Authority also received many complaints from members of the public about the Episode, including the following[1]:

“(a) by way of satirical presentations, the programme repeatedly and maliciously smeared, denigrated, insulted, defamed and mocked the Police and the efforts of the Government / the Police in fighting COVID-19, and incited hatred against the Police, by, among others, including incomplete, inaccurate, untruthful, misleading and biased contents, and exaggerating messages which prejudiced and were unfair to the Government / Police;

(b) the programme was one-sided and partial against the Government / government officials / the Police and the pro-establishment camp, and biased towards the pan-democratic camp, medical staff taking industrial action, and people involved in recent protests. It had not presented the views of those supporting the Government and the Police, and failed to present different viewpoints in a balanced way;

(c) the programme did not provide a suitable and timely opportunity to the Police for response in respect of the criticisms made against the Police;

(d) the programme repeatedly made groundless references and suggestions that the Police were hoarding personal protective equipment (PPE) (including surgical masks), depriving other government departments and medical staff of access to such equipment; and

(e) the programme contained a segment in which the host was dressed in a style similar to a police officer, with the neck and hands wrapped with rubbish bags. He emerged from a large rubbish bin at the beginning of the segment, spoke while standing inside of it, and retracted into the large rubbish bin and closed the lid at the end of the segment. The portrayal smeared the Police by suggesting that the Police were trash, worthless and revulsive. The host’s appeal to viewers to join his profession satirised the Police’s recruitment as refuse collection, in effect ridiculing those who aspired to join the Police.”

8.  Amidst the complaints lodged against the Episode, the Director wrote a letter to RTHK’s staff on 12 March 2020, stating as follows:

“As a public service broadcaster, RTHK adheres to the public purposes and mission stipulated in the Charter of Radio Television Hong Kong (‘the Charter’). Even though our programmes are of different genres and cater for different viewing objectives, they are, on the whole, in compliance with the Charter. The contents of radio and television programmes running 24 hours a day are diverse and complementary (including news, information, education, entertainment, as well as live relays of grand events, sports activities and important meetings), covering the five points spelt out in paragraph 4 of the Charter. [Taking] all aspects into consideration, RTHK has come to be a prominent platform for the public to attain and express opinions, fully exemplifying Hong Kong’s diversity, inclusiveness and acceptance.

Over the past three weeks, different groups in the community have voiced concerns with divergent views on the contents of Headliner, which is one fine example of the aforementioned (Hong Kong’s diversity, inclusiveness and acceptance). Headliner has been with RTHK for three decades. Both its genre, which is a rarity in local broadcasting scene, and purport are common knowledge. Its viewing objective is well recognized by the members of the public. Its character is definitive and unambiguous. Firstly, it is non-news; secondly, it is satirical and ironic. While syncing with social pulse, it serves as an effective outlet for grudges and resentment. The new series of Headliner went on-air last month and attracted quite a lot of feedback. Totaling over 40,000 public responses, comprising over 30,000 compliments and more than 6,000 opinions and complaints landed onto CC&SU… It is incumbent upon us to keep on improving this programme. We cherish every comment. We can reassure the public again that RTHK does listen to complaints, accept criticism, and never stop finding ways to improve.

Our shared aspiration is to produce high-quality and diversified programmes to meet the needs of society.  Among them, current affairs programmes are indispensable.  The varieties include: timely and accurate news coverage and analyses; truth-finding documentaries and investigative reports such as Hong Kong Connection, platforms for personal views such as Pentaprism and Letter to Hong Kong; phone-in programmes such as Talkabout and Backchat.  As for Headliner, which is NOT a factual programme, it belongs to the genre of satire which taps into hot societal topics through jocular expressions.  Each [encompasses] distinctive social functions while garnering the public’s attention…”

(iii)     The Authority’s Provisional Decision

9.  By a letter dated 9 March 2020, the Authority informed RTHK that it had received over 3,200 public complaints against the Episode.  The allegations (which were more extensive than those set out in the subsequent Press Release dated 19 May 2020[2]) were summarized in that letter, and RTHK was asked to respond to them.

10.  RTHK responded on 27 March 2020 by way of a 32-page written presentation (“the Initial Representations”).

11.  By a letter dated 21 April 2020, the Authority informed RTHK of its provisional findings on 3,302 public complaints about the Episode, and its provisional decision (“the Provisional Decision”) that the following complaints were justified:

(1) failure to make reasonable efforts to ensure the accuracy of the factual contents in Remark A and Remark B;

(2) denigrating or insulting the Police on the basis of social status in the Police Comedy Sketch; and

(3) failure to present a sufficiently broad range of views in a series of the programme;

in breach of §2(b) of Chapter 3, and §§1A, 17(b) and 17(d) of Chapter 9, of the TV Programme Code.  The Authority also informed RTHK about the proposed sanction, namely, that RTHK should be warned to observe more closely the relevant provisions of the TV Programme Code.

12.  RTHK was given an opportunity to make further representations in response to the Provisional Decision.  In addition, the Authority invited RTHK to respond to 2 new allegations contained in 35 fresh public complaints received by the Authority, including the allegation that “the programme did not provide a suitable and timely opportunity to the Police for response in the same programme or in the same series of programs in respect of the criticisms made against the Police”.

(iv)     RTHK’s further representations

13.  On 4 May 2020, RTHK gave a rigorous and robust response to the Provisional Decision by way of a 20-page written representations (“the Further Representations”).  In summary, RTHK’s position was as follows:

Application of the TV Programme Code to Satirical Programme

(1) The TV Programme Code must be interpreted and applied in a manner that was consistent with the Basic Law and the Hong Kong Bill of Rights.  Any restrictions on the freedom of expression applied to the Episode must be narrowly construed and no more than necessary to ensure respect of the rights and reputation of others (or, not relevant in this case, national security, public order, public health or morals).

(2) Different considerations applied to different TV programmes, depending on their nature and contents.  The requirements applied to a satirical show must be applied in a manner consistent with the firm constitutional protection accorded to political satire.

(3) Satire was a form of artistic expression and social commentary which, by its inherent features of exaggeration and distortion of reality, naturally aimed to provoke and agitate.  Unlike news programmes, it was not the design of a satirical programme to present truth and depict reality, but to entertain through exaggeration and dramatization.

(4) The requirements as to accuracy and fidelity to the facts, insofar as they applied at all to satirical materials such as Headliner, must be applied in a way that responded properly to the comedic context.  Applying the accuracy requirements to a sketch comedy in the same way as one would to a news or current affairs programme would be an error of analysis.

(5) When one was dealing with satirical programmes, due impartiality did not require the programme to present satirisation of “opposing” parties at the same time, which would defeat the nature of a satirical programme.  Such balancing or neutrality was not required by the TV Programme Code.

(6) The requirement to provide opportunities to respond under §17(c) of Chapter 9 of the TV Programme Code could not, or should not, be applied to Headliner, which was a comedy show produced to entertain and poke fun.

Interpretation of §2(b) of Chapter 3 of the TV Programme Code

(7) The object of §2(b) was to outlaw discriminatory broadcast content, which was confined to certain prohibited grounds (such as race, religion, etc).  The phase “social status” in that paragraph of the code connoted some form of “caste, social standing or [stratum]”, being a “personal characteristic that is immutable or changeable only at unacceptable cost to personal identity”.  The occupation of a police officer did not constitute a social status for the purpose of §2(b).  Far from being marginalized or victimized, police officers wielded public powers including the power to use force.  They could be and were subjected to close scrutiny and public debate.  The idea that criticism of police officers could amount to discrimination on grounds of social status offended basic notions of free speech and democratic accountability.

(8) The inclusion of “police officers” as a “social status” went against established principles of freedom of speech, which embraced free and uninhibited criticism of public officials who wielded power. The prohibition against advocacy of hatred towards protected groups could not be used as a tool to chill political criticism or to curtail open discussion on matters of public interest.

(9) Even if being a police officer was a “social status”, there was a difference between criticism targeting the status itself and criticism of the conduct of the person(s) concerned.  In applying §2(b), it was necessary to focus not only on the identity of the person who was the subject of the speech under scrutiny, but whether the speech tended to denigrate the person or protected group on that basis.

(10) The threshold for interference with expressions critical of the Police was very high.  An allegation that inaccurate criticism had been levelled at them was not enough.  It was necessary to consider whether the statement in question went beyond the limit of free speech, ie that it went so far as to interfere with the right of others.

Headliner as PVP

(11) Whether a programme was a PVP did not depend on the label that was put on the programme but on the substantive content of the programme.

(12) The Episode was purely a satirical comedy show which featured a series of sketches directed at issues of social concern.  The aim of the Episode was to entertain and amuse viewers, not to depict reality. Neither in the Episode as a whole, nor in the Police Comedy Sketch in particular, did the host or any guest make any statement or personal opinion.  In light of the specific content of the edition, it did not fall within the classic definition of a PVP.

(13) It was wrong in principle to impose on such a programme the requirements of accuracy, due impartiality and the opportunity to respond that applied to news, current affairs programmes and panel talk shows. Even if Headliner/the Episode were a PVP, in view of the satirical nature of the programme, the requirements of accuracy, due impartiality and the opportunity to respond that applied to news, current affairs programmes and panel talk shows did not apply to satire or could not apply with the same rigour.

Factual Accuracy of Remark A

(14) The burden was on the complainants to prove that Remark A was false or inaccurate, not on RTHK to prove that the statements were true.

(15) Remark A had a sufficient factual basis and complied with the requirement for accuracy.  The remark that the Government allocation of PPE (personal protective equipment) to the Police might have been disproportionate in scale and need, when compared with healthcare professionals, was a reasonable inference based on the facts known at the time, in the context of rising - and entirely legitimate - public concern over the shortage of PPE for medical staff.

(16) Neither the complainants, nor the Authority, had produced any information to show that the jokes made about this subject in the Episode actually were wrong in fact.  On this ground alone, the complaint about factual accuracy of Remark A must be dismissed.

Factual Accuracy of Remark B

(17) There was no provisional finding that Remark B was false.  On this ground alone, the complaint about factual accuracy of this remark must likewise be rejected.

(18) In any event, Remark B was properly grounded in fact.

Denigrating or insulting the Police on the basis of their social status

(19) The allegation that the Police Comedy Sketch insulted police officers on the basis of their social status in breach of §2(b) of Chapter 3 of the TV Programme Code was wholly unsustainable, because -

(a) Being a police officer was not a “social status” (or any other protected status) for the purpose of §2(b).

(b) Even if being a police officer could amount to a protected “social status”, the depiction of the programme host (Wong) in that sketch had nothing to do with his social status.  At the time that the Episode was broadcast, there were widespread public concerns over alleged incidents of abuse of power and unlawful conduct of police officers which were reported by various international media and organisations. The satirical portrayal of the programme host reflected the widespread public dissatisfaction with the Police’s professionalism in the execution of their duties in recent months, and was targeted at police officers’ conduct instead of their social status.

(c) As a law enforcement agency, the Police should have a high degree of tolerance to criticism, especially when facing the public reaction to alleged unlawful conduct by police officers. While the portrayal of the programme host might be critical and considered offensive to some, it did not encourage or incite violence against police officers in any objective sense, and fell well within the limits of acceptable speech against public authorities.

Broad range of views

(20) The purpose of a comedy show was not to explore facts and opinions on topics of public interest (as if it were a classic PVP). There was no basis in either the TV Programme Code or any other authority which established a need for comedy shows to act with “balance” in who they chose to lampoon, still less that satirizing governmental bodies brought with it an obligation to mock someone else seen as averse to them.

(21) §4 of Chapter 9 of the TV Programme Code stated that “due impartiality does not mean that ‘balance’ is required in the sense of equal time or an equal number of lines in the script being devoted to each view, nor does it require absolute neutrality on every controversial issue”.

(22) Applied to satirical programmes, the idea that content had to have “balance” like, or in the same way as, news or current affairs would be impossible to observe in practice.

(23) Satire was designed to entertain, challenge, shock and provoke.  Headliner did not, as a generality, present factual news as news or the opinions of the hosts or contributors as such.  It satirized on the basis of deliberate over-the-top, slapstick takes on reality.  The concept of presenting a broad range of views was inapt because the programme did not include any direct expression of views in the first place.

(24) The bottom line was that the requirement to present different views must not be applied in a manner that required the show to address alternative views free of ridicule.  To do so would effectively stifle the use of sarcasm or satirical techniques and thus the art form of satirisation.

(25) Even if the requirement of due impartiality applied, when Headliner was viewed holistically, that requirement was fulfilled.  Over the lifespan of the programme, the editors of Headliner had raised a diverse range of socially relevant topics from all sorts of viewpoints.  Viewing the entire programme holistically, the programme had made satirical remarks of a variety of parties based on different views from across the society.

(26) Finally, the Government and its departments were the authorities in power.  They were natural subjects for satire because of their public status, and it was right that they should be under a greater degree of scrutiny from the public via the media.  Satirical programmes like Headliner were important conduits through which the press served such a role.  RTHK firmly believed that it had duly complied with the requirement for due impartiality to the extent that it applied to satirical shows such as Headliner.

14.  In respect of the new allegation that “the programme did not provide a suitable and timely opportunity to the Police for response in the same programme or in the same series of programs in respect of the criticisms made against the Police”, RTHK’s response was as follows:

(1) The complaint appeared to be based on §17(c) of Chapter 9 of the TV Programme Code, which required PVP to provide a “suitable opportunity for response to the programme … in the same programme, in the same series of programmes or in similar types of programmes targeting a like audience within an appropriate period”.

(2) No provision in the TV Programme Code required a comedian to give the person about whom he had made a joke the right of reply.

(3) In the context of a typical PVP where personal views of the hosts and contributors were expressed and discussed, it was reasonable to invite responses and clarifications from those about whom negative things were said.  That requirement helped ensure that the overall content of the programme remained fair and balanced, which was appropriate for current affairs programmes that sought to depict reality and the various facets of a social issue.

(4) However, Headliner was a satirical comedy show that was designed to entertain viewers.  Although the topics addressed in Headliner often revolved around current affairs and social issues, no reasonable viewers would confuse the programme with a news programme or a documentary that purported to assert the truth of its contents, generating a right of reply from the person concerned.

(5) Anyhow, RTHK had extended an invitation to the Police to present its views and provide clarifications in Headliner.  The Headliner team took seriously the letter from the PPRB addressed to the Director in response to the Episode[3]. RTHK made an invitation to the Police to provide more information in person. Even though studio interviews were not regularly used in Headliner, RTHK believed in the importance of communication and of providing the Police a fair opportunity to explain their position.  Therefore, RTHK made the invitation by a telephone call to the secretary of the chief of PPRB, Mr Kwok Ka-chuen, on 18 February 2020, followed by a letter sent in the afternoon on the same day.  On 19 February 2020, RTHK further provided PPRB with its proposed interview questions.  However, despite RTHK’s repeated efforts, the Police did not respond to RTHK’s invitation.

(6) Thus, even if the requirement under §17(c) of Chapter 9 of the TV Programme Code applied to a sketch comedy, RTHK had fulfilled the duty arising under it and the Police had declined to exercise any “right of reply”.

(v)     The Authority’s Final Decision

15.  The Authority’s Final Decision was conveyed in a letter dated 19 May 2020 to RTHK (“the Final Decision Letter”).  Also on 19 May 2020, the Authority issued a press release (“the Press Release”) in respect of the Final Decision.  Details of the complaints received by the Authority in respect of the Episode, as well as the Authority’s findings, considerations and decision were set out in an appendix to the Press Release (“the Appendix”).

16.  In the Form 86, the Applicants referred to the Press Release and Appendix, instead of the Final Decision Letter, as embodying the decision sought to be challenged in the present application for judicial review, apparently because they did not then have a copy of the said letter.  Nothing much turns on this, because the contents of the Press Release and the Appendix are not materially different from the Final Decision Letter.

17.  The Authority made the following material findings in respect of the complaints against the Episode in the Final Decision[4]:

Classification of the Programme as a PVP

(1) The Episode should be regarded as a PVP and therefore be subject to the relevant provisions in the TV Programme Code applicable to PVPs[5].

Factual Contents of PVPs

(2) RTHK failed to demonstrate that the following remarks rested upon true evidence, and RTHK had not made reasonable efforts to ensure that they were factually accurate[6] -

(a) “醫生呀，你唔夠口罩就早啲出聲吖嘛，衙差大把有得剩” (Doctor, you should voice out your concern early if you do not have enough face masks, as there is a lot of surplus stock for constables); and

(b) “依家仲取消徒步巡邏，唔駛行咇…” (Beat patrols have now been abolished…).

Denigration and Insult

(3) The Authority accepted that Headliner was a light-hearted PVP on current affairs that reviewed major recent news.  As a political satire, it would ipso facto poke fun at political or public figures, including those who held positions of authority, in a tone or manner which was imprudent, satirical and at times critical[7].

(4) Nevertheless, the mean characterisation of the Police in the Police Comedy Sketch was “deliberate with the intention, obvious to general viewers, to insult and to convey the prejudice hinting that police officers were a group of people who were seen as trash, were revulsive and spurned. Such characterisation also suggested that only worthless people would join the Police, possibly ridiculing those serving in or aspiring to join the Police.  The portrayal had nothing to do with any particular conduct or the work of the Police, or public concerns on the way the Police exercised their authority, but with an intention of denigrating the Police as a social group, and was also a gratuitous attack on that entire group. Furthermore, the same portrayal was repeatedly used in the same segment of subsequent editions for other contents related to the Police, showing that the denigration and insult was not inadvertent or incidental to a single plot or skit but an attempt to persistently promote the underlying insult and prejudice. Notwithstanding the fact that the programme was a political satire, the [Authority] took the view that the portrayal of the host as such had denigrated and insulted the Police as a whole”[8].

Broad Range of Views in PVPs

(5) Although Headliner as a political satire might have greater latitude in the views it chose to reflect than in other serious current affairs types of PVPs, it was still expected to reflect a certain amount of different viewpoints so that the views presented in the programme would not be slanted or lopsided. In this connection, the relevant provision in the TV Programme Code, viz. §17(d) of Chapter 9, did not mandate broadcasters to devote equal times for different views to be expressed, to present different views in the same edition of the programme, or to require different viewpoints to be presented in any particular form.  The broadcasters were also allowed to present a broad range of views in the same series of PVPs.  However, the fulfilment of this obligation must be genuine, and the relevant provision in the TV Programme Code should be applied in spirit as well as in letter[9].

(6) RTHK submitted that the editions of Headliner broadcast on 6 and 13 March and 10 April 2020 had included the views expressed by the Commissioner of Police, the Chief Executive, some police officers and Legislative Council Members of different political camps by showing news footages of them accompanied by music videos. The Authority noted that when commenting on the Police in the edition under complaint, the focus was on the efforts by the Police in the fight against COVID-19. However, the editions broadcast on 6 and 13 March and 10 April 2020 mainly incorporated the response of the Police in relation to the recent social events and protests.  Although these editions had apparently included the response of the Police, the footages concerned were not related to the work of the Police in fighting COVID-19.  Accordingly, RTHK had not included in the programme a sufficiently broad range of views vis-à-vis the criticisms on the Police’s efforts in the fight against COVID-19, whether considered on its own merits in that edition or as a series[10].

Other Allegations

(7) The Authority rejected the other complaints about the Episode, including the complaint that RTHK failed to provide a suitable and timely opportunity to the Police for response in respect of the criticisms made against the Police, accepting RTHK’s submission that it had made attempts to invite the Police to an interview to explain its position but the Police did not respond to those attempts[11].

18.  Based on the above findings, the Authority made the following Final Decision[12]:

“After careful consideration of the further representations of RTHK dated 4 May 2020 (the ‘Further Representations’), including RTHK’s representations on the new allegations, the [Authority] has decided to uphold the provisional findings, as set out in its letter dated 21 April 2020 (the ‘Provisional Findings’), that the complaints in respect of accuracy of factual contents, denigration of and insult to the Police, and expression of a sufficiently broad range of views in personal view programmes (‘PVPs’) were justified, and that RTHK was in breach of paragraph 2(b) of Chapter 3, paragraphs 1A, 17(b) and 17(d) of Chapter 9 of the Generic Code of Practice on Television Programme Standards (‘TV Programme Code’).”

19.  On the same day of the Final Decision, ie 19 May 2020, the Bureau demanded RTHK to (i) state that they fully accept the Authority’s decision, (ii) examine whether there was any negligence and error committed by staff and personnel in the course of the programme production and editorial processes, and if so, to follow up or take disciplinary actions, and (iii) conduct a full review of the programme production and editorial system to ensure that all RTHK programmes fulfilled in full the public purpose and mission specified in the Charter.

20.  RTHK swiftly announced that it accepted the Authority’s Final Decision and would shortly suspend production of Headliner, notwithstanding the fact that it was described by the Director as a fine example of “Hong Kong’s diversity, inclusiveness and acceptance” for three decades[13] (whether the Director’s description of Headliner is a fitting one is not a matter for the court to judge, and this court expresses no view on it).  RTHK also apologized to any police officers or others who had been offended by, or who were dissatisfied with, the station’s output in recent months.  The last episode of Headliner was aired, as mentioned above, on 19 June 2020.

APPLICATION FOR JUDICIAL REVIEW

21.  On 19 August 2020, Radio Television Hong Kong Staff Union (“RTHK Union”) and The Hong Kong Journalists Association (“HKJA”) filed a Form 86 to apply for leave to apply for judicial review of the Final Decision.  Both Applicants are trade unions registered under the Trade Unions Ordinance, Cap 332.

22.  In the Form 86, six grounds of judicial review are advanced[14]:

(1) The Authority committed a material error by misclassifying Headliner as a PVP.

(2) The Authority misdirected itself in coming to the conclusion that Headliner was a PVP without due consideration of its substantive content and its satirical nature.

(3) Notwithstanding the misclassification, the Authority misapplied the substantive provisions of the TV Programme Code.

(4) The Authority erred in law by applying the wrong standard and/or threshold of factual accuracy to the substantive contents of the Episode.

(5) The Final Decision has resulted in an unjustified and disproportionate restriction on the freedom of expression in breach of BL 27 and BOR 16.

(6) The Final Decision was irrational in the public law or Wednesbury sense in light of all the circumstances.

23.  On 21 August 2020, the court granted leave to apply for judicial review.

24.  At the substantive hearing of the application for judicial review, Mr Johannes Chan, SC on behalf of the Applicant “refined” the 6 grounds of judicial review into the following:

(1) Ground 1 - the Final Decision was unlawful as it was based on a misinterpretation and/or misapplication of the TV Programme Code by:

(A) failing to take into account adequately, or at all, the unique nature of a satire, and wrongly finding that Headliner/the Episode fell within the meaning of a PVP;

(B) misinterpreting and/or misapplying the provision regarding denigrating and insulting in §2(b) of Chapter 3 of the TV Programme Code;

(C) misinterpreting the requirement to have a sufficiently broad range of views to be expressed in a series of PVPs in §17(d) of Chapter 9 of the TV Programme Code; and

(D) misinterpreting the requirement to make reasonable efforts to ensure that the factual contents of PVPs are accurate in §§1A and 17(b) of Chapter 9 of the TV Programme Code.

(2) Ground 2 - the Final Decision unlawfully interfered with the Applicants’ right to freedom of expression in that the Authority, in interpreting and applying the provisions of the TV Programme Code to Headliner, failed to take into account adequately, or at all, the unique nature of the Episode, and hence violated BL 27 and BOR 16.

(3) Ground 3 - the Final Decision was Wednesbury unreasonable in all the circumstances.

THE COMMUNICATIONS AUTHORITY’S DUTY TO ACT CONSISTENTLY WITH THE HONG KONG BILL OF RIGHTS

25.  The Authority is a statutory body established on 1 April 2012 under the Communications Authority Ordinance, Cap 616 (“the CAO”). It is the statutory successor to the former Broadcasting Authority and Telecommunications Authority.  Its role is to regulate the broadcasting and telecommunications industries in Hong Kong in accordance with (i) the Broadcasting Ordinance, Cap. 562 (“the BO”), (ii) the Telecommunications Ordinance, Cap. 106, (iii) the CAO, and (iv) the Broadcasting (Miscellaneous Provisions) Ordinance, Cap. 391.  Its functions are set out in s 4 of the CAO.

26.  Under s 4(4)(d) of the CAO, the Authority is expressly enjoined, in the performance of its functions, to act in a manner consistently with the provisions of the Hong Kong Bill of Rights Ordinance, Cap 383.  Section 4(4) states as follows:

“Without limiting any other matters to which the Authority may have regard, in performing its functions, the Authority must have regard to such of the following as appear to it to be relevant in the circumstances -

(a) the fostering of an environment that supports a vibrant communications sector to enhance Hong Kong’s position as a communications hub in the region;

(b) the encouragement of innovation and investment in the communications market;

(c) the promotion of competition and adoption of best practices in the communications market for the benefit of the industry and consumers; and

(d) acting in a manner consistent with the provisions of the Hong Kong Bill of Rights Ordinance (Cap. 383).”

THE CHARTER OF RADIO TELEVISION HONG KONG

27.  RTHK is a government department and the sole public service broadcaster in Hong Kong.  It is under the policy purview and administrative oversight of the Bureau.  Unlike other commercial licensees which operate under licences issued pursuant to the BO, RTHK is not subject to the regulatory regime under that Ordinance.  Its operation is regulated in accordance with the Charter, which is an instrument signed by the Chief Secretary for Administration of the HKSAR, the Director of Broadcasting and the Chairman of the Broadcasting Authority dated 13 August 2010.

28.  The Charter specifies the public purposes and mission of RTHK and its editorial independence, and also the relationship between RTHK and other relevant parties, including (i) the status and responsibilities of RTHK and its relationship with the Bureau, and (ii) the role of the Broadcasting Authority (and its successor, the Authority) in providing content regulation for RTHK programming[15].

29.  §4 of the Charter provides that, as the public service broadcaster in Hong Kong, RTHK is to fulfill, inter alia, the following purposes -

(a) sustain citizenship and civil society; and

(b) provide an open platform for the free exchange of views without fear or favour. This involves the provision of a wide range of programmes for public participation and expression of views, and provision of a platform to support and facilitate community participation in broadcasting[16].

30.  §5 of the Charter provides that RTHK shall provide to Hong Kong people editorially independent, professional and high-quality radio, television and new media services.  Specifically, the mission of RTHK is to, inter alia, “provide a platform for the Government and the community to discuss public policies and express views thereon without fear or favour”.

31.  §6 of the Charter provides that RTHK is editorially independent, while §7(c) provides that RTHK shall adhere to the following editorial principle - “be immune from commercial, political and/or other influences”.  §9 states that as the Editor-in-chief, the Director is responsible for making the final editorial decisions in RTHK and is accountable for editorial decisions taken by RTHK programme producers.

32.  Section H of the Charter concerns “programme content regulation”.  §22 of the Charter states that:

“RTHK should ensure that unless otherwise approved by the [Broadcasting Authority], all television and radio programmes broadcast on its platform or supplied for broadcasting by licensed broadcasters in Hong Kong should comply with:-

(a) the relevant codes of practices issued by the [Broadcasting Authority] to regulate the standards of programmes broadcast by broadcasters holding licences issued under the Broadcasting Ordinance or the Telecommunications Ordinance; and

(b) any amendments to the codes of practice issued by the [Broadcasting Authority] from time to time.”

33.  There are further provisions in Section H of the Charter concerning the procedures for investigation of complaints against programmes broadcast on RTHK’s platform or supplied by RTHK for broadcasting by licensed broadcasters in Hong Kong, and the imposition of sanctions (including an order to issue a public apology and/or to make appropriate corrections) on RTHK for complaints found to be justified or partially justified.  For the purpose of this judgment, it is not necessary to go into the details of those provisions, save to mention that the Final Decision was made by the Authority in the performance of its administrative function assigned to it (as successor to the Broadcasting Authority) under Section H of the Charter.

THE TV PROGRAMME CODE

34.  Under s 3(1) of the BO, the Authority may, for the purpose of providing practical guidance for licensees in respect of any requirements under that Ordinance imposed on licensees or in respect of licence conditions -

(a) approve and issue such codes of practice (whether prepared by it or not) as in its opinion are suitable for that purpose; and

(b) approve such codes of practice issued or proposed to be issued otherwise than by it as in its opinion are suitable for that purpose.

35.  As earlier noted, by §22 of the Charter, RTHK undertakes to comply with all relevant codes of practices issued by the Broadcasting Authority (and its successor, the Authority) to regulate the standards of programmes broadcast by broadcasters holding licences issued under the BO.  The code of practice relevant for the purpose of the present discussion is the TV Programme Code, which was first promulgated in June 2001.

36.  The TV Programme Code published by the Authority on 27 July 2018 states, so far as relevant, as follows:

(1) Chapter 1, Preamble:

“1. This Code of Practice is issued by the Communications Authority (CA) pursuant to section 3 of the Broadcasting Ordinance (Cap.562). All materials included in a television programme service licensed under the Broadcasting Ordinance (Cap.562) must comply with this Code. The CA has the power to impose sanctions on licensees who do not comply with the Code.

3. Due to the difference in characteristics, pervasiveness and degree of influence of the television programme services, each category of television programme service is subject to a level of control appropriate to that particular type of services. As a general principle underlying television programme regulation, the degree of restriction applied must be related to the likely audience of the television programme service and their expectations.

9. The CA, as the regulator, does not preview or pre-censor any programmes. The editorial responsibility lies with the licensees themselves. The Code sets out the factors which should be taken into account when making editorial judgement. It is the responsibility of the licensees to ensure that any programmes delivered on their licensed services will comply with the Code. Judgement will always be called for by the licensees. When forming a view about the acceptability of any programme material, the CA will give consideration to the following factors: -

(b) Type of programme

The provisions in the Code will vary with the type of programme; the considerations applying to drama, for example, are different from those applying to a documentary. It is important to consider the expectations that viewers have of particular programmes. Whether or not a scene causes offence to an audience can depend greatly on whether it is contrary to the expectations of a programme.

(c) Programme context

Much depends on the context; i.e. where and why the material appears in the particular programme, whether a scene may be justified by the storyline or the expectations created about the individual characters. What is unacceptable in one context may be appropriate and acceptable in another.

(h) Merits of programme

The use of material that may cause offence or distress may be justified by its purpose and the overall quality of the programme. The considerations applying to programmes which are serious presentations of moral, social or cultural issues, for example, are different from those applying to a light entertainment programme.

10. The Code deals in general principles. Licensees would be required to draw up their own guidelines in the light of the particular interests of the organisations and their audiences so as to provide practical guidance to their staff on how these general principles would be applied in specific circumstances. Licensees must reflect the general effect of this Code in their own guidelines.”

(2)     Chapter 3, General Programme Standards:

“GENERAL PRINCIPLES FOR ALL CATEGORIES OF SERVICES

1 Licensees should ensure that their programmes are handled in a responsible manner and should avoid needlessly offending audiences by what they broadcast.

2 In the presentation of television programmes, certain basic standards must always be observed. A licensee should not include in its programmes

(a) any material which is indecent, obscene, or of bad taste which is not ordinarily acceptable to the viewers taking into consideration the circumstances in which the programme is shown;

(b) any material which is likely to encourage hatred against or fear of, and/or considered to be denigrating or insulting to any person(s) or group(s) on the basis of ethnicity, nationality, race, gender, sexual preference, religion, age, social status, or physical or mental disability; …”

(3)     Chapter 9, Accuracy, Impartiality and Fairness:

“SPECIFIC APPLICATIONS FOR DIFFERENT CATEGORIES OF SERVICES

DOMESTIC FREE AND DOMESTIC PAY TELEVISION PROGRAMME SERVICES

Accuracy

1A. The licensees shall make reasonable efforts to ensure that the factual contents of news, current affairs programmes, financial programmes, personal view programmes, documentaries, programmes adopting an investigative style of reporting, children’s programmes with educational purpose, programmes dealing with medical and health issues, and contests are accurate.

Impartiality

General

2. The licensees must ensure that due impartiality is preserved as respects news programmes and any factual programmes or segments thereof dealing with matters of public policy or controversial issues of public importance in Hong Kong (except personal view programmes which are dealt with separately under paragraph 17 below). Factual programmes are non-fiction programmes which are based on material facts. They can take the form of news, current affairs programmes, personal view programmes, documentaries and programmes adopting an investigative style of reporting.

3. Due impartiality requires the licensees to deal even-handedly when opposing points of view are presented in a programme or programme segment. Balance should be sought through the presentation, as far as possible, of principal relevant viewpoints on matters of public importance. Programmes or programme segments under concern should not be slanted by the concealment of facts or by misleading emphasis.

4. In achieving due impartiality, the term ‘due’ is to be interpreted as meaning adequate or appropriate to the nature of the subject and the type of programme or programme segment. Due impartiality does not mean that “balance” is required in the sense of equal time or an equal number of lines in the script being devoted to each view, nor does it require absolute neutrality on every controversial issue. Judgement will always be called for by the licensees.

Personal View Programmes

17. ‘Personal view programmes’ are programmes in which the person providing the service and/or the programme hosts and/or, sometimes, individual contributors put forward their own views. ‘Person providing the service’ refers to a licensee and persons exercising control of a licensee as defined in section 1(6) of Schedule 1 to the Broadcasting Ordinance (Cap. 562). The following rules apply to all personal view programmes and segments of factual programmes containing personal view content on matters of public policy or controversial issues of public importance in Hong Kong:

(a) The nature of a personal view programme must be identified clearly at the start of the programme, for example, by an announcement in the following terms, ‘This programme only reflects the personal views of the programme host(s) and/or the individual contributor(s).’ The above announcement should be suitably modified for a personal view programme which contains the views of the person providing the service.

(b) Facts must be respected and the opinion expressed, however partial, should not rest upon false evidence.

(c) A suitable opportunity for response to the programme should be provided in the same programme, in the same series of programmes or in similar types of programmes targeting a like audience within an appropriate period.

(d)  Licensees should be mindful of the need for a sufficiently broad range of views to be expressed in any series of personal view programmes.”

STANDING

37.  In his written skeleton submissions for the Authority dated 1 June 2021, Mr Abraham Chan, SC argued that the Applicants lacked sufficient interest to bring the present challenge by way of judicial review[17].  However, in his oral submissions, Mr Abraham Chan clarified or confirmed that the Authority’s objection in respect of the Applicants’ standing related only to the constitutional challenge to the Final Decision based on the right to freedom of expression under the Basic Law and/or the Hong Kong Bill of Rights, and the Authority would not take any standing point in relation to the Applicants’ challenge based on traditional judicial review grounds.  Accordingly, I shall proceed on the basis that the Applicants have sufficient standing to make the present challenge under Grounds 1 and 3.  Before I consider those grounds, I shall first deal with the Applicants’ constitutional challenge to the Final Decision under Ground 2.

GROUND 2 - UNLAWFUL INTERFERENCE WITH THE APPLICANTS’ RIGHT TO FREEDOM OF EXPRESSION IN VIOLATION OF BL 27 AND BOR 16

38.  Under this ground, Mr Johannes Chan argues that the Final Decision unlawfully interfered with the Applicants’ right to freedom of expression in that the Authority, in interpreting and applying the provisions of the TV Programme Code to the present case, failed to take into account adequately, or at all, the unique nature of the Episode, and hence violated BL 27 and BOR 16.

39.  Mr Abraham Chan argues that that there is no basis for any constitutional review of the Final Decision in the present case because:

(1) RTHK, as a Government department, has no protected rights under Chapter 3 of the Basic Law or the Hong Kong Bill of Rights.  Its powers and entitlements are regulated by the Charter.

(2) RTHK’s employees or others engaged to produce broadcast materials on RTHK’s behalf (“RTHK Producers”) -

(a) can have no better right or standing to bring constitutional review against a decision made against RTHK than RTHK itself; and

(b) the constitutional right to freedom of speech does not guarantee to any individual the right to make public television broadcasts, because only licensed broadcasters have that right recognised in law, and there is no challenge to the prevailing system which limits the right to broadcasters.

(3) In any event, there is before the court no clearly pleaded case on the individual rights of RTHK Producers - distinct from RTHK’s own alleged / presumed constitutional right.

(4) Any RTHK producers who dislike the Final Decision (i) lack standing to challenge the Final Decision made against RTHK, and (ii) in any event cannot discharge the burden of showing that their individual rights to freedom of expression have actually been restricted.  This is because:

(a) RTHK Producers have no right to broadcast free-to-air programme content independent of RTHK.

(b) RTHK Producers have no legal right to formulate / broadcast RTHK programme content in the first place.  They can only do so at the behest and under the control of RTHK.

(c) The Final Decision concerns only RTHK’s output, and only in the specific instance and form of the Episode.

(d) The advisory warning given in the Final Decision is cast in general guidance terms to RTHK and does not preclude any particular future output by RTHK itself.

(e) The Final Decision in no way impugns any individual personal expression by RTHK Producers via all other means and platforms of communication at their lawful disposal.

(f) In the premises, no RTHK Producer can show, as required, that his/her personal right to freedom of expression has been restricted by the Final Decision.

(g) Likewise, no RTHK Producer, still less the Applicants, has a sufficient interest / standing to seek constitutional review of the Final Decision.

40.  In my view, Mr Abraham Chan’s submission that there is no basis for the Applicants to mount any constitutional review of the Final Decision (in other words, the Applicants have no standing to raise such challenge on the facts of this case) is well-founded, for the following reasons:

(1) For the purpose of this discussion, it is important to focus on the actual decision under challenge in the present application, and the identity of the person or party whose constitutional right to freedom of speech is alleged to have been restricted or infringed.

(2) The decision under challenge is the Final Decision made by the Authority against RTHK, not any individual person involved in the production of the Episode, still less the Applicants.

(3) In the Form 86, the Applicants have not clearly identified the person or party whose constitutional right to freedom of expression is alleged to have been restricted or infringed by the Final Decision.  However, at §115 thereof, it is said that “the CA’s Decision [ie the Final Decision] results in an unjustifiable restriction on Headliner’s right to uninhibited free speech … Further, the CA fails to justify its Decision to restrict the right of Headliner in criticizing the [Police] on the basis that the rights or reputation of others have necessarily been interfered with as constitutionally entrenched under BL 27 and BOR 16” [emphasis added].

(4) “Headliner” is, however, a TV programme, and has no legal right to speak of.  Even if the reference to Headliner was intended to be a reference to RTHK, the suggestion that RTHK’s right to freedom of speech has been restricted or infringed by the Final Decision is still inapt and wrong.  This is because RTHK is a department of the HKSAR Government.  It is not a legal person, and cannot have, or enjoy, any legal right as such.  RTHK cannot be equated with the staff working in that department generally, or those involved in the production of the Episode specifically.

(5) As for the HKSAR Government itself, it is clear that BL 27 and BOR 16 can have no relevant application, because (i) Chapter 3 of the Basic Law (including BL 27 relied upon by the Applicants) is concerned with the rights of “Hong Kong residents” (permanent and/or non-permanent), and (ii) the Hong Kong Bill of Rights (including BOR 16 relied upon by the Applicants) is likewise concerned with the protection of rights of “persons” other than the Government or any person acting on behalf of the Government or a public authority (see s 7(1) of the Hong Kong Bill of Rights Ordinance).  Anyhow, it cannot sensibly be argued that any right to freedom of speech of the HKSAR Government has been restricted or infringed by the Final Decision.

41.  Mr Johannes Chan argues that RTHK has a dual role of being both a government department and a public service broadcaster and, in its latter role, RTHK must enjoy a right to freedom of expression in the discharge of its public purposes and mission as set out in the Charter, which include, inter alia, “the provision of a wide range of programmes for public participation and expression of views” and “the provision of programmes with diversity of programming coverage, universality of reach and sensitivity to the pluralistic nature of Hong Kong and the world”.  He further argues that without the right to freedom of expression, RTHK cannot possibly achieve its mission to “provide a platform for the government and the community to discuss public policies and express views thereon without fear or favour”. I am unable to accept this argument, which ignores the fact that RTHK is a department of the HKSAR Government, and is not a legal person.  It simply does not make legal sense to say that a government department (as distinct from the staff working in that department) has, or can enjoy, a right to freedom of expression.

42.  Mr Johannes Chan also relies on the judgment of Hartmann J (as he then was) in Cho Man Kit v Broadcasting[18], where the learned judge, in the context of a challenge to a decision made by the Broadcasting Authority that the content of a programme (called “Gay Lovers”) produced by RTHK and the timing of its broadcast violated various provisions of the prevailing code of practice, stated that it was understandable that “RTHK itself - and others - should have been so concerned at the finding of the Authority, seeing it as a threat to the well-established and entirely legitimate forms of documentary film-making; in short, as an impermissible restriction on the right to freedom of expression” (§85).  This judgment does not assist the Applicants here, because (i) the applicant of the judicial review in that case was a homosexual person who actually appeared in the television programme and talked about the lives of homosexuals in Hong Kong, as well as their fears and aspirations, and (ii) the question of whether RTHK had or could enjoy, in the strict legal sense, the right to freedom of expression did not appear to have been argued, and in any event was not necessary for determination, in that application.

43.  Under Ground 2, Mr Johannes Chan has sought to “refine” the Applicants’ ground of challenge to contend that “The Decision unlawfully interfered with As’ right to freedom of expression …” [emphasis added].

(1) It is not, in my view, permissible for the Applicants to seek to change the nature of their pleaded case by “refining” the grounds of review in a document handed up to the court in the course of the hearing.

(2) It is, in any event, difficult to see how the right to freedom of expression of the Applicants, being two trade unions, has been restricted or infringed by the Final Decision which concerns the Episode, a TV Programme produced by RTHK.  I accept that, as a matter of principle, a trade union may, like a natural person, enjoy the right to freedom of expression.  This is not, however, a case where any speech, or expression, of either Applicant has been curtailed or interfered with.  No “personal” right of either Applicant has been restricted or infringed in the present case.

(3) The highest that may be said is that the right to freedom of expression of some members of the two trade unions involved in the production of the Episode has been restricted or infringed by the Final Decision.  It is not necessary to rule on Mr Abraham Chan’s contention that such persons (referred to by Mr Chan as “RTHK Producers”) lack standing to mount a constitutional challenge to the Final Decision.  If such challenge is possible, it ought to be made by them and not by the Applicants.  If a person complains that his/her legal right has been unlawfully interfered with, prima facie that person ought to take action to vindicate his/her right.  I see no reason why the Applicants should be permitted to enforce the rights of RTHK Producers on their behalf by bringing these proceedings, particularly when they do not claim to represent any particular persons involved in the production of the Episode who are dissatisfied with the Final Decision and wish to take action to challenge it.

44.  In all, Ground 2 is rejected.  Notwithstanding this conclusion, the fundamental right to freedom of expression is not irrelevant to the proper interpretation of the TV Programme Code.  This is because the code is applicable not only to RTHK, but also other licensed broadcasters. Since the construction of the TV Programme Code ought to remain the same whether it is applied to RTHK or other licensed broadcasters, the true construction of the code must, in my view, have proper regard to the fundamental right to freedom of expression guaranteed by the Basic Law and the Hong Kong Bill of Rights.

GROUND 1(A) - WHETHER HEADLINER/THE EPISODE FALLS WITHIN THE MEANING OF A PVP

45.  In §17 of Chapter 9 of the TV Programme Code, “Personal View Programmes” is defined to mean programmes in which -

“the person providing the service and/or the programme hosts and/or, sometimes, individual contributors put forward their own views”.

46.  Mr Johannes Chan argues that:

(1) Headliner is a satirical programme which is fundamentally different from a PVP, and thus the principles governing PVPs are inapplicable to Headliner.

(2) Episodes of Headliner generally do not feature programme hosts or contributors expressing their personal views in the usual sense, cf a panel talk show.

(3) Instead, the specific content of Headliner is and has always been intended to entertain, while simultaneously provoking thought and critical engagement.

(4) Authorities have established the following principles relevant to a satire: (i) it is a form of artistic expression and social commentary which, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate; (ii) a satire will lose its effect and characteristics if it were to present a balanced view of both sides; (iii) political satire must be allowed to offend to some extent if this genre is to be meaningful, and thus, this calls for a wide margin of discretion of editorial judgment to be left to programmers; and (iv) reasonable viewers would be able to identify when exaggerated or distorted statements are used to assert not their factual truth, but to amuse and provoke thought.

(5) Accordingly, Headliner/the Episode should not be classified or regarded as a PVP under the TV Programme Code.

47.  On the other hand, Mr Abraham Chan contends that the Episode is a PVP.  He argues that:

(1) The key issue is whether the Episode falls within the definition of a programme in which the person providing the service (ie RTHK) puts forward its own view on political and current affairs.

(2) The answer is “yes” because the script and content of the Episode is tailored by RTHK’s agents and/or employees to express a subjective viewpoint or message on political and current affairs. This is affirmed by, inter alia, the Applicants’ own description of Headliner as a form of artistic expression and social commentary, and the fact that RTHK labelled nearly all episodes of Headliner as PVPs from December 2001 to April 2020.

48.  It is not in dispute that Headliner is in the nature of a satire, which has been described in the majority judgment of the European Court of Human Rights in Ziembiński v Poland (No 2) (App No 1799/07, 5 October 2016), at §45, as “a form of artistic expression and social commentary which, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate”.  It was added that “[a]ccordingly, any interference with this right to use this means of expression should be examined with particular care”.

49.  The format of Headliners typically begins with a presentation of a genuine news clip that is then followed by an overtly absurdist or “slapstick” portrayal of the issue in question.  Its approach is satirical; its purpose is partly to reflect social sentiment, partly to allow ventilation of social grievances, and partly to make fun of, to provoke, and to agitate.  This is achieved by the artistic format of dramatized presentation, distortion and exaggeration.  Unlike the usual PVPs such as a panel talk show, Headliner does not generally feature the programme hosts or contributors expressing their own views.

50.  The fact that Headliner is in the nature of a satire does not answer the question of whether it should be classified as a PVP for the purpose of the TV Programme Code.  The answer to that question depends on the true meaning of the definition of “Personal View Programmes” in that code.

51.  The key issue, as correctly submitted by Mr Abraham Chan, is whether Headliner is a programme in which the person providing the service and/or the programme hosts and/or individual contributors put forward their own views.  Although the “views” of the programme hosts and/or individual contributors of Headliner are not expressed in the classic format of PVPs (eg in a round table discussion, or face-to-face talk, or phone-in interview), it is nevertheless clear that they are expressing their own views on social, political or current affairs or issues, albeit in a satirical and exaggerated manner.

52.  I accept that the question of classification should be approached by considering the substance of the content of the programme, and not just the label put on it.  This having been said, the fact that those responsible for the production of Headliner explicitly classified nearly all episodes of Headliner from December 2001 to April 2020[19] as PVP by attaching a PVP label to their opening titles (apparently in compliance with the requirement of §17(a) of Chapter 9 of the TV Programme Code) should, I believe, be regarded as an indicator that Headliner is properly to be treated as a PVP, because it can reasonably be assumed that those responsible for the production of Headliner were familiar with the true nature of Headliner and knew whether it fell within the meaning of PVP.  It is nothing to the point that the TV Programme Code does not have a separate, or appropriate, category of programme for satire, or that the TV Programme Code should be suitably amended because the existing regulations governing PVPs are inappropriate for this form of expression.  If the classification of Headliner as a PVP was inappropriate, the label should not have been used in the first place.

53.  Overall, I do not consider that the Authority is wrong in law to treat Headliner/the Episode as a PVP.  It follows that the requirements in §17 of Chapter 9 of the TV Programme Code are, in principle, applicable to Headliner/the Episode, although their application ought to have proper regard to its nature as a satire.

GROUND 1(B) - PROPER INTERPRETATION AND/OR APPLICATION OF THE PROVISION REGARDING DENIGRATION AND INSULT

54.  §2(b) of Chapter 3 of the TV Programme Code, which applies to all categories of programmes, not just PVPs, provides that RTHK (treated as a “licensee”) should not include in its programmes “any material which is likely to encourage hatred against or fear of, and/or considered to be denigrating or insulting to any person(s) or group(s) on the basis of ethnicity, nationality, race, gender, sexual preference, religion, age, social status, or physical or mental disability” [underlining added].

55.  Mr Johannes Chan argues that upon the proper construction and application of §2(b):

(1) The Authority is wrong to categorize police officers as a “social group”, because the very object of that paragraph is to outlaw broadcast content that is discriminatory, and discrimination is confined to certain specified prohibited grounds which are all concerned with preferential treatment on the ground of a personal characteristic that is “immutable or changeable only at unacceptable costs to personal identity”.

(2) To include police officers within the ambit of “social status” would necessarily deviate from constitutionally entrenched principles that public officials should not be alleviated from free and unrepressed criticism.

(3) Even if being a police officer is a “social status”, the Authority still errs in principle given there is a clear difference between criticism that targets one’s status as opposed to one’s conduct.

(4) The fact that one of the programme hosts had dressed himself with garbage bags and appeared out of a dustbin cannot lead to the imputation that the gesture was intended to “denigrate or insult” police officers on the basis of their “social status”.  Instead, it could be intended to express the strong and widespread public dissatisfaction with the Police’s professionalism in the execution of their duties.

(5) The suggestion that the Final Decision is consistent with the Authority’s previous decisions when complaints were made about the treatment of police officers and other occupations in various programmes is neither here nor there, because each case has to be considered in light of its context.

56.  The question of whether the words “social status” in §2(b) of Chapter 3 of the TV Programme Code should be given the meaning used in the human rights/anti-discrimination context as contended by Mr Johannes Chan depends on the true construction of that paragraph in the Code.  A code of this nature is not to be construed as if it were a statute. The ordinary principles governing the interpretation of a policy document or administrative guideline should be adopted (see Hong Kong Television Network Ltd v Chief Executive in Council [2006] 2 HKLRD1005, at §48).  The purpose and context of the document and/or the particular provision in question are relevant.

57.  As for the purpose of the TV Programme Code, the following is stated its preamble:

(1) The code sets out the programme standards for (inter alia) domestic free television programme services (§2).

(2) Due to the difference in characteristics, pervasiveness and degree of influence of the television programme services, each category of television programme service is subject to a level of control appropriate to that particular type of services.  As a general principle underlying television programme regulation, the degree of restriction applied must be related to the likely audience of the television programme service and their expectations (§3).

(3) Domestic free television programme services are intended or available for reception by the public free of charge in Hong Kong. They are intended or available for reception by an audience of more than 5,000 specified premises and primarily target Hong Kong.  Since they are the most pervasive of all four categories of television programme services[20], it is reasonable for the audience to expect more stringent standards for protection of minors and public morality (§4).

58.  As for the context, the relevant provision is found in Chapter 3 of the TV Programme Code under the heading “General Programme Standards”, and comes under the sub-section titled “General Principles for All Categories of Services”.  §1 of that sub-section provides that licensees (which for the present purpose include RTHK) should ensure that their programmes are handled in a responsible manner and should avoid needlessly offending audiences by what they broadcast.  §2 prescribes certain basic standards that should be observed.  In particular, a licensee should not include in its programmes any material which is indecent, obscene or of bad taste which is not ordinarily acceptable to the viewers taking into consideration the circumstances in which the programme is shown (§2(a)), or which is likely to encourage hatred against, or fear of and/or considered to be denigrating or insulting to any person(s) or group(s) on the basis of, inter alia, “social status” (§2(b)).

59.  Having regard to the aforesaid purpose and context, I consider that §§1 and 2 of Chapter 3 of the TV Programme Code are intended to prohibit the broadcast of what may broadly be described as offending materials by TV licensees.  While materials which are “discriminatory” (in the sense as ordinarily used in the human rights/anti-discrimination context) may well be regarded as being likely to “encourage hatred against or fear of” and/or considered to be “denigrating or insulting” to any person(s) or group(s) on the basis of ethnicity, nationality, race, gender, sexual preference, religion, age, social status, or physical or mental disability for the purpose of §2(b), I see no reason why the prohibition under that provision should be confined to the human rights/anti-discrimination context.  In my view, §2(b) is wide enough to generally prohibit the broadcast of materials which are likely to encourage hatred against or fear of and/or considered to be denigrating or insulting to any person(s) or group(s) on the basis of, inter alia, “social status”.

60.  As for the meaning of the words “social status” in §2(b), I consider that they should be given their natural and ordinary meaning, and being a “police officer” can properly be regarded as a “social status” for the purpose of this provision.

61.  Even if the words “social status” should be understood in the human rights/anti-discrimination context, jurisprudence under the European Convention on Human Rights suggests that for the purpose Article 14[21] of that convention, a person’s “occupation” may be regarded as a “status” of that person (see R(Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, at §16; Valkov v Bulgaria (2016) 62 EHRR 24, at §115, where the European Court of Human Rights observed that the words “other status” have been given a wide meaning so as to include, in certain circumstances, “military rank” or being a “former KGB officer”, and the holding of “high office” can likewise be regarded as “other status” for the purpose of Article 14; see also Terentyev v Russia, Application No 10629/09 (28 Aug 2018), at §57, where the European Court of Human Rights stated that the domestic courts’ interpretation of Article 282 of the Criminal Code of Russia[22] to regard the police as a “social group” which could benefit from the protection of that provision does not conflict with the natural meaning of the words).

62.  I do not accept Mr Johannes Chan’s submission that to include police officers within the ambit of “social status” would necessarily deviate from constitutionally entrenched principles that public officials should not be alleviated from free and unrepressed criticism.  While I accept the general proposition that public officials (including police officers) should be open to free and unrepressed criticism, it is important to appreciate that §2(b) does not prohibit public criticism, even strongly expressed, of police officers (or other public officials), provided that it is not done in such a way as is likely to encourage hatred against or fear of, or denigrate or insult, them on the basis of their social status as police officers (ie as a social group).  Even giving due allowance to the fact that Headliner is a satire and to the consideration that public officials ought to be receptive to criticism and be prepared to tolerate a degree of exaggeration, prejudice or even unfair criticism, it cannot be said that it is inherent in the nature of a satire targeted against public officials that it must be done in a manner which is likely to encourage hatred against or fear of, or denigrate or insult, them.

63.  I am also unable to accept the relevance of the distinction sought to be drawn by Mr Johannes Chan between criticism that targets one’s status as opposed to one’s conduct on the facts of the present case.  He argues that the portrayal of Wong, dressed in police uniform with his hands and neck wrapped with rubbish bags, emerging out of and later retracting into a rubbish bin could be taken to be an expression of the public’s dissatisfaction with the Police’s professionalism in the execution of their duties.  However, this portrayal had no apparent link to any work of the Police or the public’s dissatisfaction with their professionalism, and seems to me to be targeting police officers as a group simply on account of their status.

64.  As for the question of whether the aforesaid portrayal of Wong should be considered to be denigrating or insulting police officers on the basis of their social status, I consider that it was reasonably open to the Authority to make the finding referred to §17(4) above.  The question is not whether this court would have made the same finding, but whether the Authority’s finding is Wednesbury unreasonable.  I do not consider that the high threshold of Wednesbury unreasonableness is crossed in the present case.

65.  Lastly, the fact that the Authority relied upon its previous decisions in relation to the interpretation of §2(b) does not affect the above analysis.  It certainly does not give rise to any error of law or Wednesbury unreasonableness.  The important question is whether the Authority’s interpretation of §2(b) is erroneous as a matter of law.  For the reasons given above, I do not consider that it is.

66.  In all, Ground 1(B) is rejected.

GROUND 1(C) - PROPER INTERPRETATION OF THE REQUIREMENT FOR A SUFFICIENTLY BROAD RANGE OF VIEWS TO BE EXPRESSED

67.  §17(d) of Chapter 9 of the TV Programme Code, applicable to PVPs, states that -

“Licensees should be mindful of the need for a sufficiently broad range of views to be expressed in any series of personal view programmes”.

68.  The Authority found that RTHK was in breach of this provision, essentially because:

(1) Although Headliner as a political satire might have greater latitude in the views it chose to reflect than other serious current affairs types of PVPs, it was still expected to reflect a certain amount of different viewpoints so that the views presented in the programme would not be slanted or lopsided.

(2) When commenting on the Police in the Episode, the focus was on the efforts by the Police in the fight against COVID-19. RTHK did not, either in the Episode broadcast on 14 February 2020 or in subsequent episodes of Headliner broadcast on 6 and 13 March and 10 April 2020 (relied upon by RTHK as evidence of compliance with the requirement under §17(d)), present a sufficiently broad range of views vis-à-vis the criticisms on the Police’s efforts in the fight against COVID-19.

69.  Mr Johannes Chan argues that the Authority misinterpreted and/or misapplied the provision of §17(d) in that:

(1) It is illogical to ask a satirical programme to represent and criticize both sides on the same issue at the same time as this would defeat the nature of a satire.

(2) While the Authority recognised that a satirical programme such as Headliner might be given a greater latitude in the views it chose to reflect than a traditional PVP, at the same time RTHK was still expected to reflect a certain number of different viewpoints.  This is inherently contradictory.

(3) RTHK did invite the Police twice to a subsequent episode of Headliner and provide the Police a chance to explain themselves, but the invitation was not taken up.

(4) RTHK’s inclusion of views from various parties (including the Police) in subsequent episodes of Headliner shows that RTHK did not always present a negative view against the Police.  Balance is to be achieved by not focusing its critique at the same group, organization or person at all times.

(5) The Authority’s obsession with “balance” overlooked the possibility that mockery of just one party to a social dispute might well be justified in some cases.

(6) The Authority effectively subjected RTHK to the requirement of due “impartiality” imposed by §2 of Chapter 9, which requirement expressly has no application to PVPs, in the name of §17(d).

70.  Mr Abraham Chan contends, on the other hand, that:

(1) The Applicants’ argument mischaracterizes the Authority’s decision.  The Authority never suggested that RTHK had to present and criticize both sides on the same issue at the same time.  Nor did the Authority suggest that RTHK had to comply with the impartiality requirements under §§2-7 of Chapter 9.  The Authority’s finding was that RTHK had not genuinely fulfilled the requirement to present a sufficiently broad range of views in a series of Headliner episodes.  With the Episode as the immediate flashpoint and focus, the Authority was considering the overall position, from a series perspective.

(2) There is no basis for claiming that it was impossible or illogical for Headliner to present broad range of views across a series of episodes.

(3) The claim that RTHK fulfilled the requirement under §17(d) of Chapter 9 by criticizing pan-democrats in past episodes is not to the point.  The Episode was not concerned with a political dispute between pro-government and pan-democrat camps.  The Authority did not require RTHK to criticize the pan-democrat camp.  So the fact that RTHK had criticized or satirized the pan-democrat camp in past episodes is simply irrelevant.

(4) The obligation to present a broad range of views lies on the broadcaster, and requires more than simply inviting the relevant persons to express their own views on the TV programme.

(5) Lastly, the claim that the Authority overlooked the possibility that mockery of just one party to a social dispute might be justified in some cases is wrong, because the Authority does not say that RTHK is required to mock every party.  Its findings were simply that RTHK had not presented a sufficiently broad range of views vis-à-vis the criticisms of the Police’s effort in fighting COVID-19 whether in the Episode or in a series of episodes of Headliner.

71.  For the purpose of the present discussion, it is, I consider, significant that the Authority accepted that:

(1) RTHK could satisfy the requirement imposed by §17(d) by presenting a broad range of views in respect of the Police’s effort in fighting COVID-19 in subsequent episodes (or a series of episodes) of Headliner; and

(2) RTHK had twice invited the Police to present its views and provide clarifications by way of studio interview in Headliner in order to give the Police a fair opportunity to explain their position, but the Police declined or ignored those invitations.  It was on the basis of this explanation by RTHK that the Authority exonerated RTHK of the complaint that it had failed to provide a suitable and timely opportunity to the Police to respond to the criticisms made against them in the Episode.

72.  Although the obligation to present a broad range of views in respect of the criticisms of the Police’s effort in fighting COVID-19 is not the same as giving the Police an opportunity to respond to those criticisms, inviting the Police to present its side of the story in Headliner should at least be regarded as a reasonable and an effective way of presenting a broad range of views.  As it was, RTHK’s invitations to the Police to respond to the relevant criticisms in Headliner, thereby presenting a broad range of views, were declined or ignored by the Police themselves.  It would appear from the Final Decision Letter (and the Appendix) that the Authority did not take these matters into account in reaching the conclusion that RTHK had failed to present a sufficiently broad range of views vis-à-vis the criticisms on the Police’s effort in the fight against COVID-19.  In my view, RTHK’s invitations to the Police to explain their position and present their side of the story and the Police’s decision not to respond to the invitations must be regarded as material, or relevant, matters which the Authority ought to have taken into account when considering whether RTHK acted in breach of the requirement to present a broad range of views in a series of the programme under §17(d) of Chapter 9 of the TV Programme Code.  The failure to take those matters into account was, I consider, Wednesbury unreasonable, as was the decision that RTHK acted in breach of §17(d).  Having reached this conclusion, it is not necessary for me to consider the other arguments advanced by Mr Johannes Chan in support of this ground of judicial review.

73.  Accordingly, the Authority’s finding of breach of §17(d) on the part of RTHK cannot stand.

GROUND 1(D) - PROPER INTERPRETATION OF THE REQUIREMENT TO MAKE REASONABLE EFFORTS TO ENSURE ACCURACY OF FACTUAL CONTENTS

74.  §1A of Chapter 9 of the TV Programme Code, applicable to all domestic free and domestic pay television programme services (including PVPs), states that:

“The licensees shall make reasonable efforts to ensure that the factual contents of news, current affairs programmes, financial programmes, personal view programmes, documentaries, programmes adopting an investigative style of reporting, children’s programmes with educational purpose, programmes dealing with medical and health issues, and contests are accurate.”

75.  Also of relevance for the purpose of this ground of judicial review is §17(b) of Chapter 9 of the TV Programme Code, applicable specifically to PVPs.  That paragraph states that:

“Facts must be respected and the opinion expressed, however partial, should not rest upon false evidence.”

76.  The Authority found that RTHK was in breach of these 2 provisions of the TV Programme Code.

77.  In respect of Remark A:

(1) The Authority considered that the crux of the matter was whether there was any proof that the Police had a surplus stock of surgical mask (大把有得剩).

(2) In support of this remark, RTHK relied upon an “internal document” of the Police which was referred to in a media report published on 15 February 2020[23] (ie on the same date that the Episode went on air) in both the Initial Representations[24] and the Further Representations[25].  In that media report, it was stated that the Police had been allocated the largest quantities of full-body protective gown, N95 mask and bleaching solution amongst all government departments, and the second largest quantity of surgical mask amongst all government departments (behind the Department of Health).

(3) The Authority considered, however, that RTHK did not provide additional information nor indicate that that it was aware of and had relied on the “internal document” cited in the said media report before the Episode was broadcast.  Since the relevant information was not available at the time of the programme, RTHK had failed to use reasonable efforts to ensure the accuracy of Remark A.

(4) The Authority further considered that even if the said media report had been available to RTHK prior to the broadcast of the Episode, it neither contained any reference nor provided any information or evidence to support the statement that the Police had a surplus stock of surgical masks.  The alleged surplus stock could not be inferred simply from the quantity of PPE supplied to the Police without knowing the Police’s demand for and usage level of PPE.

(5) The Authority also considered that the remark implied that the Government made an unfair or inappropriate allocation of PPE amongst the Police and medical staff, resulting in medical staff with stronger needs of PPE facing shortage while the Police had an excessive allocation, thereby showing the Government’s bias towards the Police and neglecting the needs of medical staff.  RTHK’s point about the relative number of police officers in the Police Force and the number of doctors, nurses, other para-medical personnel and supporting staff working in public hospitals, and the availability of PPE to them, was irrelevant because the Hospital Authority was not a government department and it procured its supply of masks separately on its own.

78.  In respect of Remark B, the Authority considered that:

(1) It was natural for viewers to comprehend the general remark to mean that there was a full suspension of foot patrols by the Police, instead of the suspension of foot patrols in certain district(s).

(2) The media report relied upon by RTHK in the Further Representations[26], which referred to the suspension of foot patrols in a particular district[27] during a certain period, or other media reports referred to by RTHK in the Initial Representations on possible changes in the patrolling arrangements of the Police[28], could not be relied upon to support the statement that there was a full suspension of foot patrols by the Police.

(3) RTHK’s suggestion that there was going to be a reduction of foot patrols and that such a reduction might become an official operational policy was pure speculation.

79.  On these bases, the Authority found that RTHK was in breach of §§1A and 17(b) of Chapter 9, in that:

(1) RTHK failed to “demonstrate” that Remark A and Remark B “rested upon true evidence”; and

(2) RTHK “had not made reasonable efforts to ensure that the remarks were factually accurate”[29].

80.  Under Ground 1(D), Mr Johannes Chan submits that the Authority misinterpreted the requirements under §§1A and 17(b) of Chapter 9 of the TV Programme Code to make reasonable efforts to ensure that the factual contents of PVPs are accurate.  He argues that:

(1) As evidenced by RTHK’s provision of various media reports in response to the challenge to the factual accuracy of Remarks A and B[30], there is no reason why the comments and remarks contained therein should be taken as anything other than ones that were honestly made and based on factual evidence.

(2) The threshold of factual accuracy to be applied in the context of programmes of a satirical nature should be lower in comparison to classic programmes of news reporting.  The Authority should have applied a lower threshold, for example, that the statement made is objectively false.  There is precedent for the upholding of a satirical remark so long as the remark is made with a sufficient factual basis (see Haupt v Austria, App No 55537/2010, 1 June 2017, at §§32 and 38). 

(3) The remarks were intended to be satirical value judgments or comments and did not mislead viewers. There could also not be any possible basis to say that they lacked a sufficient factual basis.

(4) The Authority unjustifiably shifted and imposed an overly onerous burden on RTHK to justify the truth of the two remarks. Unless it can be shown affirmatively that the contents of the remarks were inaccurate, the complaint must be dismissed on this ground alone.  It is the restriction of the speech, not the speech itself, that must be justified.

(5) In respect of Remark A, the television audience should understand very well that the whole sketch was meant to be for fun, and whatever that was said in the sketch should not be taken as precise report of facts.  The proper question is not whether the allegation that the Police had a lot of face masks in stock could be established as a fact, but whether there was evidence suggesting that medical professionals were facing shortages in equipment and protective gears, and whether the Police at that time was perceived by the public to be well-equipped.

(6) In respect of Remark B, it is the kind of exaggeration that is typical of a satire program.  It is clearly a sketch aimed at mocking the Police.  Any reasonable audience could expect the sketch to have some factual basis, but not necessarily that every single statement is precisely worded.  The point made by the relevant part of the sketch is that the Police were well equipped with protective gears, yet not actually doing much regarding the pandemic.  It is essentially a reflection of public sentiment on police performance.  While people can debate about the validity of the comment, the question of factuality is whether there was at least some factual basis of such public sentiment that could justify the critical comment.

81.  Mr Abraham Chan’s argument in response, in summary, is as follows:

(1) The Authority is not required to prove that the two remarks were definitively false before it can be established that RTHK has failed to make reasonable efforts as to factual accuracy.  Under §1A of Chapter 9, the burden lies on RTHK to make reasonable efforts to ensure that factual contents of (inter alia) PVPs are accurate.  Similarly, under §17(b) of Chapter 9, the burden is on RTHK to ensure that facts are respected and any opinion expressed does not rest on false evidence.  The imposition of a burden of proof on the Authority to prove factual inaccuracy is unfair and unworkable, as (i) it would in many cases require the Authority to prove a negative or disprove a remark, which is invidious and indeed often impossible, and (ii) it would be unfair to require the Authority to disprove assertions made by broadcasters when they are most likely to possess the relevant factual material, and while the Authority would have to conduct extensive research and/or fact finding in order to disprove the relevant remarks.

(2) §§1A and 17(b) of Chapter 9 require RTHK to make reasonable efforts to ensure the factual accuracy of the two remarks, and not merely to refer to media reports that may have been relied upon in production.  Accordingly, the fact that RTHK had no reason to doubt the authenticity of the media reports it purportedly relied upon is not itself an answer if those reports did not provide adequate support for the remarks.

Mr Abraham Chan also argues that the media reports referred to and relied upon by RTHK did not support the contention that RTHK took reasonable steps to ensure the factual accuracy of the two remarks. He undertook a detailed analysis of those media reports in the form of an appendix to his Skeleton Submissions dated 1 June 2021.

(i)     Breach of §17(b) of Chapter 9 of the TV Programme Code

82.  In my view, the Authority’s finding that RTHK breached §17(b) of Chapter 9 involved an error of principle.  In the Final Decision Letter, the Authority directed itself that for §17(b), “RTHK should provide evidence it relied upon to support the opinions expressed in the programme for [the Authority’s] assessment on whether its efforts were reasonable and whether that evidence was false in that it did not give such support”[31] [underlining added]. The Authority then considered the evidence and RTHK’s submissions, and came to the conclusion that “RTHK failed to demonstrate that the remarks rested upon true evidence …”[32] [underlining added].

83.  Instead of focusing on and answering the proper questions of whether RTHK failed to “respect” facts and whether the opinions expressed in Remarks A and B rested “upon false evidence” under §17(b), the Authority found or concluded that RTHK failed to demonstrate that the remarks rested “upon true evidence”.  Leaving aside for the moment the question of burden of proof, there is, I consider, a critical distinction between (i) RTHK being unable to justify a statement based on evidence, and (ii) RTHK making a statement of fact or expressing an opinion based on false evidence.  The mere fact that RTHK may not be able to justify a statement of fact or opinion based on the evidence that it relied upon cannot lead to the conclusion that the evidence is “false”.  It is clear from the way in which the Authority directed itself as to the meaning or application of §17(b) that it treated evidence as “false” if it did not, or could not, support the opinions expressed in Remarks A and B.  The Authority has, in my view, misinterpreted §17(b), and/or misapplied it in a manner which is Wednesbury unreasonable.

(ii)     Breach of §1A of Chapter 9 of the TV Programme Code

84.  As for §1A of Chapter 9, I consider that, upon the true construction of that provision, before there could be any finding of breach, it must be shown that the relevant factual content is not accurate.  To hold otherwise would mean that a TV broadcaster can be found to have acted in breach of §1A even where the factual content of a programme is true or accurate.  Even if such an interpretation of §1A is literally possible, I would reject it taking into account the importance of upholding the fundamental right to freedom of expression where reasonably possible.

85.  Furthermore, I consider that the burden is on the complainant or the Authority to prove the falsity or inaccuracy of the relevant factual content.  This would be in accordance with the general principle that one who alleges must prove, as well as the principle that any restriction of the right to free speech must be justified by the person seeking to impose the restriction.  I do not accept Mr Abraham Chan’s submission that the imposition of a burden of proof on the Authority to prove factual inaccuracy is unfair or unworkable:

(1) Whether to disprove a remark would involve or require proof of a negative depends on the nature of the remark in question. Anyhow, I can see no inherent objection or impossibility in imposing a persuasive burden on a party to prove a negative. Whether the discharge of such burden may be assisted by placing an evidential burden on the opposite party in appropriate cases does not arise for consideration in the present case.

(2) There is nothing unfair in requiring the Authority to disprove the accuracy of factual content of a television programme. The Authority can, where necessary or appropriate, request the complainant to provide relevant evidence in support of the complaint.  In the context of the present case, the Police was a complainant.  There is no reason to believe that the Police would not be ready and willing to assist the Authority by the provision of relevant evidence to prove the factual inaccuracy of the remarks.

(3) Since the restriction of free speech is a serious matter, it would not be unreasonable to require the Authority to expend such resources as may reasonably be necessary to properly investigate complaints about inaccuracy of factual contents of television programmes.

86.  In respect of Remark A, the Authority made no finding on its factual accuracy, in particular whether the Police had a surplus stock of surgical mask.  In the absence of any finding that Remark A was factually inaccurate, the Authority’s finding that RTHK had failed to make reasonable efforts to ensure that it is factually accurate cannot stand.  For the avoidance of doubt, the court makes no finding, and expresses no view, on the accuracy of the remark.

87.  The position in respect of Remark B is different.  Even on the basis of the media reports relied upon by RTHK, it would appear that the suspension of foot patrols by the Police only occurred in certain district(s) (in particular, the Yau Tsim District) and for a period of time only due to understaffing.  RTHK has not suggested that in fact, there was a general or territory-wide suspension of foot patrols by the Police.  In the circumstances, the question of factual accuracy of the remark is not in issue. The assessment of whether RTHK had made reasonable efforts to ensure that the remark was factually accurate was primarily a matter for the Authority, which the court should not intervene unless the assessment was Wednesbury unreasonable.  I do not consider that it was.

88.  In all, I am of the view that the Authority’s finding of breach by RTHK of §1A in respect of Remark B stands, but not in respect of Remark A.  Also, the Authority’s finding of breach by RTHK of §17(b) in respect of Remarks A and B cannot stand.

GROUND (3) - WEDNESBURY UNREASONABLENESS

89.  This catch-all ground can be disposed of briefly.  The threshold for establishing Wednesbury unreasonableness is a high one.  In respect of those complaints raised by the Applicants which I have rejected, I do not consider that this additional argument adds anything of substance, or the high threshold required to establish Wednesbury unreasonableness has been crossed.

CONCLUSION AND DISPOSITION

90.  Ground 1(C) and part of Ground 1(D) (in relation to the findings of breach of §1A of Chapter 9 of the TV Programme Code in respect of Remark A, and the finding of breach §17(b) of Chapter 9 of the TV Programme Code in respect of Remarks A and B) are upheld, but Ground 1(A) and (B), the remaining part of Ground 1(D), and Grounds 2 and 3 are rejected. Consequently:

(1) the following findings of the Authority stand -

(a) breach of §2(b) of Chapter 3 of the TV Programme Code; and

(b) breach of §1A of Chapter 9 of the TV Programme Code in respect of Remark B; but

(2) the following findings of the Authority cannot stand -

(a) breach of §1A of Chapter 9 of the TV Programme Code in respect of Remark A;

(b) breach of §17(b) of Chapter 9 of the TV Programme Code; and

(c) breach of §17(d) of Chapter 9 of the TV Programme Code.

91.  I grant an order of certiorari to remove into High Court and to quash the Authority’s findings referred to in §90(2) above.

92.  I do not propose to remit the matters referred to in §90(2) above to the Authority for fresh consideration.  Although RTHK’s announcement was that the production of Headliner would be “suspended”, there was no suggestion that it would be revived, or of any intention to revive it in future.  It does not seem to me that any useful or practical purpose would be served by remitting those matters to the Authority for fresh consideration.  Whether the Authority wishes to do so is a matter for them.

93.  On the issues of costs, I have upheld part, and rejected part, of the Applicants’ complaints.  I make an order that the Authority shall pay 50% of the Applicants’ costs, to be taxed if not agreed, with certificate for 2 counsel.

[1] See pp1-2 of the Appendix to the Press Release dated 19 May 2020.

[2] See §7 above and §15 below.

[3] See §4 above.

[4] See the Final Decision Letter, and pp 4-8 of the Appendix.

[5] See §5 of the Final Decision Letter, and sub-paragraph (a) on p 4 of the Appendix.

[6] See §9 of the Final Decision Letter.

[7] See sub-paragraph (e) on p 6 of the Appendix.

[8] See sub-paragraph (f) on p 6 of the Appendix, and §13 of the Final Decision Letter.

[9] See §15 of the Final Decision Letter, and sub-paragraph (g) on p 7 of the Appendix.

[10] See §16 of the Final Decision Letter, and sub-paragraphs (h) and (i) on p 7 of the Appendix.

[11] See §17 of the Final Decision Letter, and sub-paragraph (j) on pp 7-8 of the Appendix.

[12] See §2 of the Final Decision Letter.

[13] See §8 above.

[14] See §34 of the Form 86.

[15] See §1(a) and (b)(i) and (iii) of the Charter.

[16] See §4(a) and (b) of the Charter.

[17] See §10 of the Authority’s Skeleton Submissions dated 1 June 2021.

[18] HCAL 69/2007 (unreported, 8 May 2008).

[19] See §56 of the 1^st Affirmation of Lee Derek Tung Yan.  The episode broadcast on 13 February 2015 was an example which was not labelled as a PVP.  A less consistent approach to classification of Headliner as PVP was adopted after the Authority made the Provisional Decision in April 2020.

[20] Namely, domestic free television programme services, domestic pay television programme services, non-domestic television programme services and other licensable television programme services.

[21] Article 14 of the ECHR states: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

[22] Article 282 states: “Actions aimed at inciting hatred or enmity and humiliating the dignity of an individual or group of individuals on the grounds of gender, race, ethnic origin, language, background, religious belief or membership of a social group, committed publicly or through the mass media, shall be punishable by …”.

[23] Being an article published in Apple Daily on 15 February 2020 referred to in §68.11 on p 22 and footnote 33 on p 28 of the Initial Representations, and footnote 1 on p 10 of the Further Representations.

[24] See §§68.11 and 72.4 of the Initial Representations.

[25] See §46.2 of the Further Representations.

[26] Being a report on 20 January 2020 referred to in footnote 4 on p 12 of the Further Representations.

[27] The suspension of foot patrols in the Yau Tsim District was apparently replaced by car patrols due to serious understaffing problem.

[28] See §68.20 and footnotes 26 to 27 of the Initial Representations.

[29] See §9 of the Final Decision Letter.

[30] See §§68.10 to 68.15 and 72.4, and footnotes 9 to 19 and 33, of the Initial Representations.

[31] See §7 of the Final Decision Letter.

[32] See §9 of the Final Decision Letter.