CHEUNG TAK WING v. COMMUNICATIONS AUTHORITY AND ANOTHER

HCAL 60/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 60 OF 2015

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D E C I S I O N

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A.  Introduction

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

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

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

4. The applicant in this proposed challenge says effectively that the Impugned Announcements are not API and are political in nature.  Further, the said exemption for the Government is unconstitutional being discriminatory in nature.  As such, all the relevant decisions in supplying the Impugned Announcements to the TV and radio licensees to be broadcast are ultra vires or unlawful.  Further, he says insofar as the Authority is concerned, it has failed in its statutory duty to vet the Impugned Announcements to ensure that they are API before directing the broadcasters to broadcast them.

5. The applicant seeks the relief of various declarations to the effect that the Impugned Announcements are not API and the Authority and/or Director acted unlawfully in making the Decisions.  More substantively, the applicant asks for the relief of an injunction to effectively restrain the broadcast of the Impugned Announcements.

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

7. This is the hearing both of the leave application and the interlocutory injunction application.

B.  The leave application

8. The court will only grant leave to apply for judicial review if it considers that the application is reasonably arguable: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at paragraphs 14-17, per Li CJ.

9. The applicant’s grounds made in support of the judicial review as set out in the draft Re-Amended Form 86 and advanced by his leading counsel Mr Shieh SC (together with Mr Earl Deng) at the hearing are as follows:

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

(a)  The Authority has power under the relevant licence conditions to direct the TV and Radio licensees to broadcast materials which are API.  See for example, Condition 18.1 of the TVB TV licence.[3]

(b)   To amount to API, the subject matter must concern something which can be objectively proven to be “good” or beneficial to the public, in the sense that the advertisement’s purpose is to inform and educate the public by means of imparting information which is in the public interest, and it should convey something “of benefit” to viewers and on which viewers could act for themselves.[4]

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

(d)   Given the power provided under the relevant licence conditions to direct a broadcaster to so broadcast the API materials supplied by the Government, coupled with its statutory function and power to administer licence conditions,[5] the Authority has a statutory power and thus duty to vet the materials to see whether they are API before directing the broadcaster to air them.

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

(f)  Alternatively, the Authority had abdicated its statutory duty (to vet the materials) in simply issuing advanced general directions[6] to instruct the broadcasters to broadcast materials supplied directly by the Director for the Government in whatever schedule of broadcast the Director has asked those materials to be broadcast.

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

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

(a)  Broadcast of political advertisements through a TV licensee and Radio licensee is respectively prohibited under clause 12 of Schedule 4 of the Broadcasting Ordinance (Cap 562) (“the BO”) and Radio Code at paragraph 28.

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

(c)  Insofar as section 23(3) of the BO and paragraph 5(b)(ii) of the Code provide an exemption to the Government on the ban of political advertising, these provisions are unconstitutional as they are discriminatory on the ground of status (favouring the Government), which is in breach of Article 25 of the Basic Law and Article 22 of the Bill of Rights.[7]  These provisions therefore have no legal effect.

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

10. In opposition, the Authority and the Director argue that the above grounds have no merits at all for leave to be granted.  Their respective arguments can be summarised as follows.

11. Insofar as the API Grounds are concerned, the Authority argues that it clearly has no power or duty to pre-vet API materials.  Mr Chan for the Authority contends principally as follows:

(1)   The question of whether the Authority has a duty to pre-vet API materials is a question of construction of the relevant statutes and licence conditions.  There are no express provisions in the BO empowering the Authority to do so.  Properly construed of the conditions, insofar as the supply of API materials to the broadcasters is concerned, the Authority’s role under the conditions is clearly administrative and facilitative in nature.  In other words, it is in effect only to provide administrative support in the carrying out of those conditions.  There therefore cannot be any power and duty imposed on the Authority to vet those materials to see if they are in the public interest to be broadcast.

(2)   This construction is fortified and underlined when considered in the contexts of (a) the post-broadcast complaint driven regulatory scheme (for both commercial and Government materials) instead of a pre-broadcast vetting scheme,[8] (b) the lack of a clear definition of what is “in the public interest”, and (c) the vast volume of API materials provided to the broadcasters on a daily or weekly basis (rendering it impracticable for the Authority to carry out day-to-day pre-vetting tasks).  When so looked at, there cannot be any intention of the legislature and the Administration to impose (by reason of section 9 of the BMPO coupled with the relevant licence conditions) a power and duty on the Authority to pre-vet API materials.

12. For the Exemption Ground, the Authority adopts the Director’s arguments (as explained below) as to why the exemption is clearly constitutional.

13. The Director’s arguments in opposing the applicant’s grounds of judicial review (as advance by Mr Mok SC, together with Ms Eva Sit and Mr Justin Ho) are in principal as follows:

(1)    The Government has since 1986 adopted a policy that to qualify as API, they have to satisfy one of the these criteria: (a) that it is in the public’s interest to broadcast the message on TV; (b) that the message relates to such issues of public concern as health, safety, social welfare, legal obligations, availability of public resources and changes affecting traffic or other environmental factors; or (c) that the message is directly related to a government policy or operational objective.  The criteria are in general and wide terms. Further, public interest by itself is also a very wide and flexible term, which may carry different meaning in different context.  In this respect, Mr Mok specifically disagrees with the applicant’s attempt to import the meaning used in the Ofcom case, supra, as a meaning of “public interest” in the present context.  Mr Mok submits that the Ofcom case is decided on a very different context (under the Communications Act 2003 and for considering the meaning of “public service nature” used in the Act) and therefore distinguishable.

(2)    The message (“the Message”) that the Impugned Announcements seek to convey to the public is that “the public should grasp the opportunity to see to itthat universal suffrage can be realised in 2017 in the form of enabling over five million eligible voters to vote on the selection of the CE on a one person one vote basis”.

(3)    It must thus be in the public interest to have the Message broadcast as it is concerned with the method for selecting the CE which affects the public generally and at large.  Moreover, the Government has a constitutional duty under the Basic Law to carry out the necessary political reform in the method for selecting the CE.  The Government is also entitled to form a policy[9] to seek to implement the Reform Proposals as to what she regards as it is in the best interest of Hong Kong to have that.  In the premises, the Impugned Announcements meet criteria (a) and (c) of the Policy.  Further, the reform of the CE selection method must also be an issue of public concern, and the Message relates to that.  The Impugned Announcements therefore meet also criteria (b).  They are therefore API.

(4)    Insofar as the Exemption Ground is concerned, Mr Mok submits there is clearly no question of discrimination as:

(a)  As a start, it is because of the ban that everyone, including the Government, is prohibited from putting forward advertisements for broadcast which are political in nature.  Thus, as a start, everyone (including the Government)’s right to the freedom of expression is restricted.  The applicant however is not challenging the ban and thus has accepted for the present purpose the ban’s constitutionality.  The Government by reason of the exemption has been given back the protected right.  In the premises, it cannot be argued that the court would have jurisdiction to take away the protected right by declaring the exemption to be unconstitutional.  If dissatisfied, the only and legally available way for the applicant is to challenge the ban itself.

(b)   Further and in any event, given the very distinct constitutional role and functions vested in the Government (and the CE as her head) under the Basic Law, the Government enjoys a very different status compared with an individual.  As such, they cannot be compared for the purpose of seeing whether the individual has been treated less favourably by reason of status.  As Ma CJ says in Fok Chun Wa v Hospital Authority[10] at paragraph 58(1), the “object of the exercise (when considering issues of equality) is ultimately to ask a simple question … ‘is there enough of a relevant difference between X and Y [the comparators] to justify the differential treatment?’”  Mr Mok submits that the answer to this question in the present case must be clearly “yes, the Government plainly stands in a unique position relevantly different from the Hong Kong residents so far as political advertising is concerned” and thus justify the differential treatment by way of the exemption.

14. These submissions made by counsel for the Director and the Authority are in my view prima facie persuasive ones.  However, at the same time, I also find Mr Shieh’s above submissions (together with his reply to the putative respondent’s submissions) similarly arguable.  All these contentions made by the parties are complex and sophisticated ones, which merit a more detailed and closer examination with fuller submissions to be made at a substantive hearing (together with any further evidence or materials to be adduced).  Moreover, the questions as to scope of the meaning of “public interest” in the context of API, whether the Authority has a duty to effectively pre-vet API materials, and whether the exemption is unconstitutional are ones the determination of which would have a much wider and important impact that goes beyond their application to the Decisions only.  In the premises, at this leave stage, I would not say the applicant’s grounds in support of the judicial review are not reasonably arguable.  Leave should thus be prima facie granted.

15. However, the putative respondents have also submitted that leave in any event should not be granted to the applicant, as his application is way out of time and there are no good reasons to extend time for him.  The arguments on delay run as follows.

16. Under Order 53 rule 4(1), an applicant shall make an application for leave to apply for judicial review promptly and in any event within three months from the date “when the grounds for the application first arose”.  The court shall only consider extending this time limit if there is good reason to do so.

17. The Director contends that the grounds for the present application first arose at the latest on 2 September 2014.  This is so as (says Mr Mok):

(1)   It is the Government’s position that the Impugned Announcements form part of a larger publicity campaign by the Government concerning the proposed constitutional reform process.[11]  All the APIs broadcast for this purpose have the same objective – to publicise and promote the decision (“the 831 Decision”) made by the NPCSC on 31 August 2014 and the proposed reform proposal that is going to be based on it, to take forward the constitutional development to achieve universal suffrage.

(2)   This is demonstrated upon an examination of the transcripts of the four most recent APIs[12] going back to “Your Vote, Don’t Cast It Away!” (broadcast between 7 and 28 August 2014), whereby each API advances a virtually identical message of supporting and promoting the proposed constitutional reform.

(3)   The applicant’s complaint is that the Impugned Announcements are “transparently political” and “seek to persuade and influence the view of the public towards a controversial political subject which will soon go before LegCo”.[13]  This clearly refers to the 831 Decision as the proposed reform package is based on it.

(4)   Accordingly, it is plain that the grounds of the application arose at the latest upon the decision to broadcast the API “Your Vote, Gotta Have It!” on 2 September 2014, after the 831 Decision.  There is no difference in substance between that API and the Announcements, and the grounds of review apply to any of the APIs broadcast from 2 September 2014 to the present date.

(5)   In the premises, the applicant’s leave application is grossly out of time, and there is no good reason advanced by him to say why time should be extended (other than saying that the application concerns matter of great general public importance).  Time extension (and thus leave) should not be granted in these circumstances.

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

19. The parties’ contentions on the issue of delay thus principally peg back to the questions and determination of what is the meaning of “public interest” in the context of API, and whether the series of announcements broadcast were all seeking to convey the message as Mr Mok contends.

20. I have already said above that the applicant’s arguments on the meaning of “public interest” are arguable.  In the premises, I do not think I can at this stage come to a clear conclusion that there is delay in this application.  I therefore would not refuse leave at this stage solely on the question of delay.

21. For the above reasons, I would grant leave to the applicant to apply for judicial review on the grounds set out in the draft Re-Amended Form 86.  The leave is granted without prejudice to the respondents’ right to still contend, at the substantive hearing of the judicial review, that no time extension should be granted to the applicant.

22. Having decided leave, I now turn to look at the interlocutory injunction application.

C.  The interlocutory injunction application

23. It is common ground that the principles governing an application for interim injunction in judicial review are well settled and based on the well known principles expounded in American Cyanamid,[14] which involve the considerations of:

(1)   Does the plaintiff have a good arguable case? (“the threshold test”)

(2)   Would damages be an adequate remedy?

(3)   Where does the balance of convenience lie? (“the balance of convenience test”)

24. However, the American Cyanamid principles are modified in the context of seeking an injunction in judicial review.  Relevantly for the present purpose, they are modified as follows.

25. First, although generally an applicant would be regarded as having satisfied the threshold test if leave is granted to him to apply for judicial review, he would be required to show a stronger case than a reasonably arguable one in order to satisfy this test in the following circumstances.

26. Where the interim injunction sought is to restrain an government authority from enforcing what is prima facie the law of the land, the applicant would be required to demonstrate that a strong prima facie case on the merits of the grounds of judicial review in challenging the validity of the law.  This is explained by Lord Goff in R v Secretary of State for Transport ex parte Factortame Ltd (No 2) [1991] 1 AC 603 at 674B-D as follows:

“I myself am of the opinion that in these cases, as in others, the discretion conferred upon the court cannot be fettered by a rule; I respectfully doubt whether there is any rule that, in cases such as these, a party challenging the validity of a law must – to resist an application for an interim injunction against him, or to obtain an interim injunction restraining the enforcement of the law – show a strong prima facie case that the law is invalid. It is impossible to foresee what cases may yet come before the courts; I cannot dismiss from my mind the possibility (no doubt remote) that such a party may suffer such serious and irreparable harm in the event of the law being enforced against him that it may be just or convenient to restrain its enforcement by an interim injunction even though so heavy a burden has not been discharged by him. In the end, the matter is one for the discretion of the court, taking into account all the circumstances of the case. Even so, the court should not restrain a public authority by interim injunction from enforcing an apparently authentic law unless it is satisfied, having regard to all the circumstances, that the challenge to the validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken” (emphasis added)

27. Lord Goff’s above dicta is further emphasised and explained by Buxton LJ in R v Secretary of State for Trade and Industry ex parte Trades Union Congress [2001] 1 CMLR 8 at paragraph 25 as follows:

“I venture to draw from that latter passage that Lord Goff was recognising that there may be an unusual – I infer in Lord Goff’s view it would be a very unusual case – where there was no strong prima facie case that the law was invalid, but where, nevertheless, it would be appropriate because of the weight of other factors to grant interim relief. But that case apart, Lord Goff in my judgment appears to regard the importance of not restraining a public authority by interim injunction except in a case such as that he refers to at the end of the passages I have cited as being, not a paramount factor, but an important threshold principle to which the court that is being asked to consider interim relief must direct its attention in the first instance” (emphasis added)

28. Moreover, where the relief sought in an interim injunction is identical to the final injunction relief sought in the judicial relief application, and the grant of the interim injunction would effectively depose of what a plaintiff essentially seeks to achieve by way of the action, the court should not be prepared to grant such an interim relief unless the applicant is able to present “an overwhelming balance on the merits” in his favour: cf Cayne v Global Natural Resources plc [1984] 1 All ER 225 at 236f, per Kerr LJ. This position is to be more so in the context of judicial review for the reasons identified in paragraphs 26-27 above.

29. Second, in relation to the balance of convenience test, the court adopts a very wide approach, taking into account the interests of the general public to whom the duties are owed: Smith v Inner London Education Authority [1978] 1 All ER 411, 422h, per Browne LJ.  This is so as, unlike in private law disputes, the balance of convenience in public law cases cannot be measured simply in terms of the financial consequences to the parties.  In such a context, in the exercise of the balance, the court would place particular stress upon the importance of upholding the law which on the face of it is valid.  Therefore, an applicant seeking to restrain the authority from enforcing the law by way of an interim injunction would need to show “matters of considerable weight” to justify that in the balancing exercise: see Factortame 672G-673E.

30. At 673D-E, Lord Goff elucidated this aspect of the test as follows:

“In this context, particular stress should be placed upon the importance of upholding the law of the land, in the public interest, bearing in mind the need for stability in our society, and the duty placed upon certain authorities to enforce the law in the public interest. This is of itself an important factor to be weighed in the balance when assessing the balance of convenience. So if a public authority seeks to enforce what is on its face the law of the land, and the person against whom such action is taken challenges the validity of that law, matters of considerable weight have to be put into the balance to outweigh the desirability of enforcing, in the public interest, what is on its face the law, and so to justify the refusal of an interim injunction in favour of the authority, or to render it just or convenient to restrain the authority for the time being from enforcing the law.” (emphasis added)

31. Applying the above principles to the present case, I have come to the view that the interlocutory injunction sought should be refused.  My reasons are as follows.

32. First, I accept that a higher threshold on merits should be adopted in the present application as (a) the applicant is seeking to restrain on an interim basis the public authority from enforcing what they are entitled to do (by supplying the Impugned Announcements for broadcast as API) under the relevant prima facie valid law, and (b) the interim injunction sought is in identical terms with the final injunction sought under paragraphs 3 and 4 of the Re-Amended Form 86.  As such, the applicant must satisfy me that his grounds of judicial review have overwhelming merits.

33. In this respect, even though I have granted leave to the applicant on the basis that the grounds are reasonably arguable as explained above, I am not satisfied that those grounds have such overwhelming merits by reason of the observations I have made at paragraph 14 above.

34. Moreover, for the purpose of considering whether I should grant the injunction, the crucial focus under the threshold test is whether the applicant has overwhelming merits in his arguments that (a) the Impugned Announcements are not API, and (b) the exemption is unconstitutional.

35. In my view:

(1)   Under the first question, the Director’s arguments (as summarised above) that the court should attribute a wide definition to the meaning of public interest and what amounts to a government policy, and the Impugned Announcements (bearing the Message in the Director’s case) thus fall within API are at least reasonably arguable.  In light of these contentions, one cannot say that the applicant’s case on API is so strong that it enjoys overwhelming merits to succeed at the end.  This is particularly so as Mr Shieh himself accepts that whether an advertisement meets the criteria of API is a “hard-edged question of mixed fact and law”.[15]

(2)   Similarly, under the second question, I also find the Director’s arguments (as summarised above) also reasonably arguable.  In particular, there are arguable merits in the contentions that in considering the question of discrimination, the Government occupies a distinctly different status compared with an individual which justifies the difference in treatment.  Thus, I am also not satisfied that the applicant’s case on the unconstitutionality of the exemption enjoys such overwhelming merits that he is very likely to succeed at the end.

36. On this basis alone, the applicant would fail in the application for an interim injunction as he fails to meet the threshold test.

37. Further, insofar as necessary, if I have to go to the question of balance of convenience (assuming that damages would not be a sufficient remedy for both sides[16]), I would similarly exercise my discretion to refuse to grant the interim injunction on the basis that:

(1)   There is now only very little time left (in the matter of a week or so) where the Impugned Announcements would continue to be broadcast (as the Motion is to be tabled at the LegCo for debate and vote on 17 June 2015).  When this is measured against the fact that the materials have been broadcast for more than a month since 22 April 2015, any additional adverse effect it would have by reason of the refusal to grant an injunction at this stage is likely to be insignificant.  This cannot be considered to be matter of considerable weight to outweigh the general importance to uphold the law, which is prima facie valid (in particular when the grounds of challenging the validity of the law are not overwhelmingly strong).

(2)   Further, and in any event, for the same reason of the said time factor (ie, the effect of granting or refusing the interim injunction is likely to be insignificant for both sides), in seeking to uphold the status quo, in particular in the context that the complained acts are carried out pursuant to prima facie valid law, the balance falls clearly on the side of not granting the interim junction and thus permitting the Impugned Announcements to continue to be broadcast as the status quo.

38. For all the above reasons, I would refuse the interlocutory injunction application.

D.  Conclusion

39. I would grant leave to the applicant to apply for judicial review on the grounds set out in the draft Re-Amended Form 86 (with the qualification stated at paragraph 21 above).  I further grant leave for the amendments to be made.  I also direct that, when ready, the parties shall write to the court to apply to fix the date of the substantive hearing of the judicial review.

40. I would however refuse to grant the interlocutory injunction and therefore dismiss the summons.

41. I would make an order nisi that costs of the leave application be reserved, and costs of the interlocutory injunction application be in the cause.  Unless any of the parties applies by summons to vary it, this order nisi shall become absolute 14 days from today.  Finally, the applicant’s own costs are to be taxed in accordance with legal aid regulations.

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