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

CACV 579/2021 and CACV 584/2021 (Heard Together)

[2024] HKCA 845

On appeal from [2021] HKCFI 3497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 579 AND 584 OF 2021

(ON APPEAL FROM HCAL NO 1685 OF 2020)

________________

________________

(Heard Together)

________________________

J U D G M E N T

________________________

Hon Poon CJHC:

1.  In these appeals,[1] it falls upon this Court to determine the application of §§1A and 17 of Chapter 9 and §2(b) of Chapter 3 of Generic Code of Practice on Television Programme Standards (“the Code”), issued by the Communications Authority (“the Authority”), to an episode of Headliner produced by RTHK and aired on 14 February 2020 (“the Episode”). The background facts may be summarised as follows.[2]

A.  Background facts

A1.  The Authority

2.  The Authority is an independent statutory body established on 1 April 2012 under the Communications Authority Ordinance (“CAO”).[3] Taking over all statutory functions and responsibilities of the former Broadcasting Authority and Telecommunications Authority, its role is to regulate the broadcasting and telecommunications industries in Hong Kong in accordance with the Broadcasting Ordinance (“BO”),[4] the Telecommunications Ordinance,[5] the CAO and the Broadcasting (Miscellaneous Provisions) Ordinance (“BMPO”).[6]  It consists of eminent members of the public from diverse background representing a cross-section of society.[7]

3.  Pursuant to sections 4(1) and (1A) of the CAO, the Authority has all the functions conferred on it by or under the BMPO and all functions conferred on the Telecommunications Authority by or under the BO. Section 9(1) of the BMPO empowers the Authority to secure proper standards of television broadcasting with regard to, among other things, programme content. To that end, section 19(1) of the BMPO enables the Authority to issue codes of practice relating to standards of programmes broadcast by a licensee. Similarly, section 3(1) of the BO confers on the Authority the power to approve and issue codes of practice for the purpose of providing practical guidance for licensees in respect of any requirements under the BO imposed on licensees or in respect of licence conditions. Pursuant to section 3(8) of the BO,[8] the codes of practice on broadcasting standards have been developed over the years after consultation with stakeholders in the industry including RTHK. The Authority has established the Broadcast Codes of Practice Committee to assist in the performance of its functions relating to codes of practice. The Authority first issued the Code in June 2001 to regulate the content of programmes broadcast by licensed commercial broadcasters. The Code had been revised subsequently and the last version for present purpose was dated 27 July 2018.

A2.  The provisions of the Code in question

4.  According to the Code, personal view programmes (“PVPs”) are “programmes in which the person providing the service[9] and/or the programme hosts and/or, sometimes, individual contributors put forward their own views”: §17 of Chapter 9. §17 further sets out rules applicable to PVPs on matters of public policy or controversial issues of public importance in Hong Kong, including the requirements that “facts must be respected and the opinion expressed, however partial, should not rest upon false evidence” (§17(b)); and that “licensees should be mindful of the need for a sufficiently broad range of views to be expressed in any series of [PVPs]” (§17(d)). Moreover, in line with §17(b), §1A of Chapter 9 stipulates that “the licensees shall make reasonable efforts to ensure that the factual contents of … [PVPs] … are accurate”. PVPs are also subject to the general programme standards laid down in Chapter 3 applicable to all categories of services, in particular, the requirement that a licensee should not include in its programmes “any material which is … considered to be denigrating or insulting to any person(s) or group(s) on the basis of … social status” (§2(b)).

A3.  RTHK

5.  RTHK, a department under the policy purview of the Commerce and Economic Development Bureau (“CEDB”), is the only public broadcaster in Hong Kong. Its operation is governed by the Charter of RTHK (“the Charter”).[10] By undertaking at §22 of Part H of the Charter to comply with the codes of practice issued by the Authority, RTHK submits itself to the same regulatory regime exercised by the Authority on programme content for licensed commercial broadcasters under the Code. As required by §10 in Chapter 1 of the Code, RTHK drew up its own Producers’ Guidelines (“the Producers’ Guidelines”). Section 3.2 in Part 3 of the Producers’ Guidelines (on editorial principle) has a section on PVP which replicates §17(b) of Chapter 9 of the Code by requiring, among other things, “[facts] must be respected and opinions expressed, however partial, should not be based on false evidence.”

A4.  Headliner

6.  First aired in April 1989, Headliner was a television series produced and broadcasted by RTHK. According to RTHK’s own classification, Headliner belonged to the specific genre of satire, which shed light on current affairs of Hong Kong, the Mainland and abroad, and tapped into hot societal topics through jocular expressions. Unlike the usual PVPs such as a panel talk show, Headliner did not generally feature the programme hosts or contributors expressing their own views. As observed by the Judge:[11]

“The format of Headliner 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.”

7.  The Broadcasting Authority, the Authority’s predecessor, had in the past treated Headliner as a current affairs programme.[12] Since 2001, RTHK had explicitly classified nearly all episodes of Headliner as PVPs by attaching a PVP label to their opening titles.[13] By such classification, RTHK had released itself from the obligation to ensure that Headliner complied with the impartiality provisions because they do not apply to PVPs: see §2 of Chapter 9 of the Code. Since then, the Broadcasting Authority had handled numerous complaints against different episodes of Headliner based on the classification that they were PVPs.[14]  The Authority’s undisputed case is that it has no role to play and does not in any way influence or interfere with RTHK’s classification.

A5.  The Episode

8.  The Episode was aired in the midst of COVID-19. It identified itself as a PVP at the outset. Among other things, it contained two comedy sketches, known as “無品芝麻官” and “驚方訊息”, satirizing the anti-pandemic efforts and the usage of face masks by the Police thus:

(1)  In one of the skits in “無品芝麻官”, a doctor (played by one of the programme hosts) debated with another character about those medical staff who had taken industrial action. Amongst other things, the doctor remarked that the medical staff took industrial action because they lacked personal protective equipment (“PPE”), to which the other 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” (translated as “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 the actor Wong He (“Wong”), who was dressed in police uniform and with his hands and neck wrapped in rubbish bags, emerged from 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!” (translated as “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” (translated as “Urgently join us”) (uttered in Putonghua), and then retracted back into the rubbish bin (“the Police Comedy Sketch”).

A6.  The Final Decision

9.  The Episode attracted strong criticisms and complaints by the Police and a total of 3,304 complaints by the public.[15] Following the established complaints mechanism, the Authority set out the details of the complaints to RTHK in a letter dated 9 March 2020. RTHK responded by written representations on 27 March 2020 (“Initial Representation”), contending that the complaints should be found to be unsubstantiated. The Authority then issued its provisional decision on 21 April 2020 (“Provisional Decision”), indicating its provisional findings against RTHK and inviting RTHK to make further representations, which RTHK did by way of written submissions on 4 May 2020 (“Further Representations”). On 19 May 2020, the Authority issued its final decision (“Final Decision”).

10.  The Authority first found that the Episode was a PVP within the meaning of §17 of Chapter 9 of the Code. In making such finding, the Authority, following its standing practice, took into account a host of factors, including the fact that RTHK itself had chosen to label the Episode as a PVP, which inferentially indicated a conscious assessment by the production staff that it was appropriate to so label it based on its content; and that the underlying intention of the Episode was to express personal opinions on current public affairs, albeit in a satirical manner, and that it was held out by RTHK to its viewers as such. The Episode was therefore found to be subject to the relevant provisions of the Code applicable to PVPs.

11.  Second, the Authority found that RTHK had failed to demonstrate that Remark A and “Beat patrols have now been abolished” in Remark B rested upon true evidence and RTHK had not made reasonable efforts to ensure that they were factually accurate, in breach of §§1A and 17(b) of Chapter 9 of the Code.

12.  In respect of Remark A, the Authority considered that the crux of the matter was whether there was any proof that the Police had a surplus of surgical mask (大把有得剩). In support of that statement, RTHK in the Initial Representations and Further Representations relied on an “internal document” of the Police referred to in a media report on 15 February 2020. That media report 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). However, the Authority was not convinced because:

(1)  RTHK had not indicated that it was aware of and had in fact relied on that “internal document” before the Episode was broadcast. Since it was not available at the time of the Episode, RTHK had failed to use reasonable efforts to ensure the accuracy of Remark A.

(2)  Even if the media report had been available to RTHK prior to broadcast, it neither contained any reference or provide any information or evidence to support the statement that the Police had a surplus stock of surgical masks. The alleged surplus could not be inferred simply from the quantity of PPE supplied to the Police without knowing the Police’s demand and usage level of PPE.

(3)  That statement 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.

13.  In respect of Remark B, the Authority considered that it was natural for viewers to comprehend it 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). RTHK in the Further Representations relied on a media report dated 20 January 2020, which referred to the suspension of foot patrols in a particular district during a certain period; and in the Initial Representations other media reports on possible changes in the patrolling arrangements of the Police. However, those reports could not support the statement that there was a full suspension of foot patrols by the Police. Further, the Authority found 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 purely speculative.

14.  Third, the Authority found that RTHK had failed to present a sufficiently broad range of views in a series of programme, in breach of § 17(d) of Chapter 9 of the Code for two main reasons:

(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 or in subsequent episodes of Headliner broadcast on 6 and 13 March and 10 April 2020, which were 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.

15.  Fourth, 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 public positions of authority, in a tone or manner which was impudent, satirical and at times critical. However, the Authority was critical of what the Police Comedy Sketch sought to portray:

(1)  The mean characterisation of the Police 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.

(2)  Such characterisation suggested that only worthless people would join the Police, possibly ridiculing those serving in or aspiring to join the Police.

(3)  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 group.

(4)  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.

Although the Episode was a political satire, the Authority concluded that the Police Comedy Sketch had denigrated and insulted the Police as a whole, in breach of §2(b) of Chapter 3.

16.  As a sanction of the above breaches, the Authority warned RTHK to observe more closely those provisions of the Code.

17.  By a press release issued on 19 May 2020, the CEDB stated that it took a very serious view of the matter and had asked RTHK to state clearly that it fully accepted the Authority’s decision regarding complaints against the Episode and to offer an apology. It was stressed that RTHK must fully abide by the Charter, duly meet its responsibility as a public service broadcaster and strictly comply with the relevant codes of practice issued by the Authority. RTHK was asked to take positive and proactive follow-up actions and give an account to the public.

18.  On the same day, RTHK reported in its news coverage that it fully accepted the Final Decision and apologized to the Police. On 19 June 2020, RTHK suspended the production of Headliner with no indication that it would be revived in the future.

B.  Proceedings below

B1.  The applicants’ arguments

19.  The applicants are the respective trade unions of RTHK’s programme staff and journalists. They challenged the Final Decision on three broad grounds: (1) misrepresentation or misapplication of the provisions of the Code; (2) unconstitutional interference against their fundamental right to freedom of expression; and (3) Wednesbury unreasonableness.

20.  In relation to the first ground, the applicants argued that the Authority wrongly found that Headliner/Episode was a PVP because it had failed to take into account its unique nature as a satirical programme. Even if it was a PVP, because of the same fundamental error, the Authority had misinterpreted 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 Code; and the requirement to make reasonable efforts to ensure that the factual contents of PVPs are accurate in §§1A and 17(b) of Chapter 9. Further, the Authority had misinterpreted §2(b) of  Chapter  3  of the Code by wrongly categorizing police officers as a “social group” and including them within the ambit of “social status” within the meaning of §2(b).

21.  In relation to the second ground, the applicants argued that the Final Decision unlawfully interfered with their right to freedom of expression because the Authority, in interpreting and applying the provisions of the Code to Headliner, failed to take into account adequately, or at all, the unique nature of the Episode, and hence violated article 27 of the Basic Law and article 16 of the Hong Kong Bill of Rights (“HKBOR”).[16]

22.  In relation to the third ground, the applicants argued that the Final Decision was Wednesbury unreasonable in all the circumstances. Specifically, when the Authority made the finding on §17(d) of Chapter 9, it had failed to take into account the fact that RTHK had twice invited the Police to a subsequent series of Headliner to explain themselves and provide clarifications by way of studio interview in Headliner. This ground did not otherwise appear to have added further substance to the applicants’ case.

B2.  The Judge’s findings

B2.1  On classification as PVP

23.  The Judge was mindful of the satirical nature of the Headliner and the applicants’ argument that as such, it was fundamentally different from a PVP and had always been intended to entertain, while simultaneously provoking thought and critical engagement. However, that did not answer the question if it was a PVP,[17] which depended on the true meaning of the definition of PVP in §17 and the substance of the content of the programme. Looking at the substance, the Judge held that:[18]

“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.”

24.  The Judge further observed that while the question of classification should be approached by reference to substance and not just label, RTHK’s classification of nearly all episodes of Headliner as PVPs from December 2001 to April 2020 was an indication that it was proper to treat Headliner as a PVP because it could be reasonably assumed that those responsible for the production of Headliner were familiar with the nature of the programme and knew whether it fell within the meaning of PVP.[19]

25.  In consequence, the Judge did not find the Authority wrong in law to treat the Episode as a PVP.[20]

B2.2  On § 17(b) of Chapter 9

26.  The Judge held that the Authority’s finding that RTHK breached §17(b) of Chapter 9 involved an error of principle. 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”. However, there was a material distinction between on the one hand, RTHK being unable to justify a statement based on evidence, and on the other, RTHK making a statement of fact or expressing an opinion based on false evidence. The mere fact that RTHK might not be able to justify a statement of fact or opinion based on the evidence that it relied upon could not lead to the conclusion that the evidence was “false”. The Authority had accordingly misinterpreted §17(b), and/or misapplied it to Remarks A and B in a manner which was Wednesbury unreasonable.[21]

B2.3  On §1A of Chapter 9

27.  The Judge first held that on a proper construction, before there could be any breach of §1A, it must be shown that the relevant factual content was not accurate. To hold otherwise would mean that a television broadcaster could be found to have acted in breach of §1A even where the factual content of a programme was true or accurate. Even if such an interpretation of §1A was literally possible, he would reject it taking into account the importance of upholding the fundamental right to freedom of expression where reasonably possible.[22]

28.  The Judge next held that the burden was on the complaintant or the Authority to prove the falsity or inaccuracy of the relevant factual content 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. For the reasons that he gave, the Judge rejected the Authority’s contention that imposition of such a burden of proof would be unfair or unworkable.[23]

29.  Turning to Remark A, the Judge noted that the Authority made no finding on its factual accuracy, in particular whether the Police had a surplus of surgical mask. In the absence of such finding, the Authority’s conclusion that RTHK had failed to make reasonable efforts to ensure that it was factually accurate could not stand.[24]  As to Remark B, even according to 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 had 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 B was not in issue. The assessment of whether RTHK had made reasonable efforts to ensure that it was factually accurate was primarily a matter for the Authority, which the court should not intervene unless the assessment was Wednesbury unreasonable. And he did not consider that it was.[25]

30.  The Judge therefore concluded that the Authority’s finding of breach of §1A by RTHK in respect of Remark B stood but not Remark A.[26]

B2.4  On §17(d) of Chapter 9

31.  The Judge considered it significant that the Authority accepted that:[27]

(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.

32.  The Judge accepted that the obligation to present a broad range of views in respect of the criticisms of the Police’s effort in fighting COVID-19 was not the same as giving the Police an opportunity to respond to those criticisms. However, 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 but 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. Thus, 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 but failed to take 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. The failure to take those matters into account was Wednesbury unreasonable, as was the decision that RTHK acted in breach of §17(d), which could not stand.[28]

B2.5  On §2(b) of Chapter 3

33.  After looking at the purpose and context of §2(b),[29] the Judge held that on a proper construction, the words “social status” 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, thereby rejecting the applicants’ argument that they should be understood in the human rights/anti-discrimination context.[30]  Even if they should be so understood, the Judge went on to hold, the Strasbourg jurisprudence suggests that a person’s “occupation” may be regarded as a “status” of that person.[31]

34.  The Judge further rejected the applicants’ argument 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. §2(b) did not prohibit public criticism, even strongly expressed, of police officers (or other public officials), provided that it was not done in such a way as was 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 Headliner as 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 could not be said that it was inherent in the nature of a satire targeted against public officials that it must be done in a manner which was likely to encourage hatred against or fear of, or denigrate or insult, them.[32]

35.  The Judge also rejected the applicants’ argument that the criticism was targeted at the Police’s conduct rather than their status. The portrayal of the character in the Police Comedy Sketch could be taken to be an expression of the public’s dissatisfaction with the Police’s professionalism in the execution of their duties. However, the Judge pointed out that such portrayal had no apparent link to any work of the Police or the public’s dissatisfaction with their professionalism, but seemed to be targeting police officers as a group simply on account of their status. It was reasonably open to the Authority to make the finding on §2(b) against RTHK as it did.[33]

B2.6  Constitutional challenge

36.  The Judge held that the applicants did not have standing to mount the constitutional challenge for the following reasons:[34]

(1)  It was 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 was alleged to have been restricted or infringed, which was the Final Decision made by the Authority against RTHK, not any individual person involved in the production of the Episode, still less the applicants.

(2)  In the Form 86, the applicants had not clearly identified the person or party whose constitutional right to freedom of expression was alleged to have been restricted or infringed by the Final Decision. However, at §115, it was alleged that the Final Decision resulted in an unjustifiable restriction on Headliner’s right to uninhibited free speech and that the Authority failed to justify the 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. However, Headliner, as a television programme, had 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 had been restricted or infringed by the Final Decision was still inapt and wrong, because RTHK, as a department of the HKSAR Government, is not a legal person, and cannot have, or enjoy, any legal right as such. And RTHK could not be equated with its staff generally, or those involved in the production of the Episode specifically.

(3)  As for the Government itself, BL 27 and BOR 16 could have no relevant application, because they are only concerned with the rights of Hong Kong residents and with the protection of rights of persons other than the Government or any person acting on behalf of the Government or a public authority. Anyway, it could not sensibly be argued that any right to freedom of speech of the HKSAR Government had been restricted or infringed by the Final Decision.

37.  Further, the Judge rejected the applicants’ attempt to “refine” the ground of challenge to contend that the Final Decision unlawfully interfered with their freedom of expression:[35]

(1)  It was not permissible for them to seek to change the nature of their pleaded case by “refining” the grounds of review in the course of submissions.

(2)  It was difficult to see how the right to freedom of expression of the applicants as two trade unions had been restricted or infringed by the Final Decision which concerned the Episode, a television programme produced by RTHK. Although, as a matter of principle, a trade union may, like a natural person, enjoy the right to freedom of expression, this was not a case where any speech, or expression, of either applicant had been curtailed or interfered with. No “personal” right of either applicant had been restricted or infringed in the present case.

(3)  The highest that might be said was 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. However, if such challenge was 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. There was no reason why the applicants should be permitted to enforce the rights of the producers of RTHK on their behalf by bringing these proceedings, particularly when they did not claim to represent any particular persons involved in the production of the Episode who were dissatisfied with the Final Decision and wished to take action to challenge it.

B3.  Conclusions

38.  Although the Judge partially allowed the applicants’ judicial review in relation to §§1A, 17(b) and 17(d) of Chapter 9, he did not remit the matter to the Authority for fresh consideration because it would not serve any useful or practical purpose when there was no suggestion that Headliner, since suspended, would be revived.

C.  Main issues

39.  Both the Authority and the applicants appealed, challenging the respective adverse findings made by the Judge against them, except that the Authority did not appeal against those in relation to §17(b) of Chapter 9 of the Code. Arising from their appeals are the following main issues:

(1)  Did the Authority correctly classify the Episode as a PVP within the meaning of §17 of Chapter 9 of the Code? (Issue 1)

(2)  If yes, in relation to both Remarks A and B:

(a)  Did the Authority correctly find that RTHK had acted in breach of §1A of Chapter 9 of the Code? (Issue 2)

(b)  Did the Authority correctly find that RTHK had acted in breach of §17(d) of Chapter 9 of the Code? (Issue 3)

(3)  Did the Authority correctly find that RTHK had acted in breach of §2(b) of Chapter 3 of the Code by including in the Police Comedy Sketch material which is denigrating or insulting to the Police on the basis of social status? (Issue 4)

(4)  Can the applicants mount the constitutional challenge? (Issue 5)

D.  The concept of “satire” for present purposes

40.  The applicants’ case whether before the Judge or this Court, stripped to its core, can be simply put as this. In light of its unique satirical characteristics, Headliner was fundamentally different from a PVP. It follows that it was wrong to classify Headliner and for that matter the Episode as a PVP for the purpose of the Code, rendering §§1A and 17 of Chapter 9 inapplicable. In any event, even if the Episode could be classified as a PVP, the Authority and the Judge failed to have proper regard to its satirical nature in applying those provisions when they made the adverse findings against RTHK. Since the contention that Headliner and the Episode were satire is central to the applicants’ case, it is imperative to ascertain the concept of satire as a genre of television programme for present purposes.

41.  Neither the Code nor the Charter defines satire as they simply do not contain any such provision. In the Producers’ Guidelines, satire is referred to at §4.13 in Part 4 dealing with issues on programme production without any definition.[36]  Both RTHK in making representations to the Authority and the applicants in the Form 86 relied on the Strasbourg jurisprudence for the description of satire: see respectively §§7, 22 to 29 of the Initial Representations, §15 of the Further Representations, which referred to §7 of the Initial Representations; and §§29 to 32 of Form 86.[37] On the evidence, it would appear that the Authority had accepted such description, which was adopted by the Judge[38] and by counsel before us as well. That being the common ground between the parties and how the arguments were advanced before the court, I would also consult the Strasbourg jurisprudence for the exercise at hand.

42.  According to the Strasbourg jurisprudence, satire is a form of artistic expression and social commentary which, by its inherent features of exaggeration and distortion of reality, naturally aim to provoke and agitate: see Ziembinski v Poland (No 2), App No 1799/07, 5 October 2016, §45; citing Vereinigung Bildender Künstler v Austria, No 8354/01, §33, 25 January 2007; Alves da Silva v Portugal, No 41665/07, §27, 20 October 2009, and Eon v France, No 26118/10, §60, 14 March 2013. When approaching an impugned satirical statement, the European Court of Human Rights has consistently applied its case law which draws a distinction between facts and value judgments contained in it. For example, in Haupt v Austria, App No 55537/10, 1 June 2017, a journalist published a satirical article on a politician who complained that the right to respect for his reputation under article 8 of the European Convention on Human Rights had been infringed. In balancing his right and the right of the journalist to freedom of expression, also a guaranteed right under the Convention, the European Court of Human Rights took into account a number of criteria identified in the authorities, including the form and contents of the publication: [31]. The Court went on to observe:[39]

“32. As to the form and contents of a publication the Court reiterates that a careful distinction needs also to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive.

33. The Court reiterates further that satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with an artist’s or social commentator’s right to such expression must be examined with particular care, even though the use of this form of expression does not rule out any possibility of restriction under paragraph 2 of Article 10 of the Convention.

…

38. As regards the content of the publication, … it constituted a political criticism of the applicant’s position as a politician. In this respect the Court reiterates that even though the truth of a value judgment is not susceptible of proof, a value judgment without any factual basis to support it may be excessive. Having regard to the detailed findings by the [domestic court], the Court is satisfied that there was a sufficient factual basis.”

43.  Two pertinent points arise from the above judicial remarks which helpfully elucidate the concept of satire for present purposes:

(1)  A satire involves the artist’s or social commentator’s right to express his value judgments by way of satirical expression of exaggeration and distortion of reality to provoke and agitate. It is the right to freedom of expression of the artist or social commentator that is being engaged.

(2)  A satirical statement may contain both facts and value judgments. A clear distinction must be made between the two of them. The existence of facts can be established objectively. In contrast, the truth of value judgments is inherently not susceptible of proof. However, whether there exists a sufficient factual basis may be relevant in determining if the impugned statement is excessive. Moreover, value judgments in the satirical statement necessarily represent the maker’s personal views.

44.  With that concept of satire in mind, I turn to Issue 1.

E.  Issue 1

45.  To recap, §17 of Chapter 9 defines PVPs as “programmes in which the person providing the service (which is RTHK in the present context) and/or the programme hosts and/or, sometimes, individual contributors put forward their own views.”  Applying the Strasbourg jurisprudence, a satire contains value judgments of the individual who makes the satirical statement or expression, which necessarily represent his personal views. As such, a satire falls within the scope of the genre of PVPs in §17. Put differently, when construed with reference to the Strasbourg jurisprudence, the term “PVPs” in §17 covers a satire.

46.  In relation to Headliner, its content, as analysed by reference to the concept of satire, consisted of two major components:

(1)  Presentation of the social event or topic in question, in the form of the genuine news clip if there was one, which formed the factual basis of the commentary through dramatization, distortion and exaggeration. This was strictly factual and could be established objectively.

(2)  Value judgments on the social event or topic by way of artistic expression or social commentary involving dramatization, etc. As value judgments, they necessarily represented the personal views of their maker who, depending on the circumstances, might be the script writer, the programme host or the producer. Although Headliner featured comic sketches in which fictional characters appeared, the value judgments did not cease to be the personal views of the maker simply because they were expressed through the mouth of the fictional characters.

47.  The above analysis in respect of content applies equally to the Episode. It contained partly factual presentation of the social issues and partly value judgments of the maker of the satirical remarks or expressions on such issues. It was thus a PVP within the meaning of §17. On the evidence, the identity of the maker was unclear. But the value judgments remained the personal views of the unidentified maker. For completeness, it is neither RTHK’s case in their representations to the Authority nor the applicants’ case in these proceedings that the Episode was not a PVP because the maker of the satirical remarks or expressions was unidentified.

48.  For the above reasons, I agree with the Judge’s analysis and his conclusion that the Authority was correct in its classification that the Episode was a PVP within the meaning of §17.

49.  The contrary arguments raised by Mr Jeffrey Tam, for the applicants,[40] can be briefly disposed of.  He took three main points.

(1)  While accepting that Headliner was a satirical programme which was fundamentally different from a usual PVP, and that classification depended on substance, the Judge erred in placing undue emphasis on RTHK’s classification of Headliner as a PVP since December 2001. Although a particular episode of Headliner in the past might qualify as a PVP, it did not lead to, nor would it be permissible, to classify a latter episode of the same programme as a PVP simply because it professed to be a PVP in the past. Much would depend on the substance. However, this complaint does not assist the applicants because the Judge did approach the question of classification as a matter of substance.

(2)  Headliner was not the type of programme expected to come under the PVP regulatory framework. Classification was a result of lack of choice. However, as submitted by Mr Abraham Chan SC, for the Authority, this complaint was not pleaded in the Form 86. In any event, there is no evidence to substantiate it. On the contrary, the evidence clearly showed that RTHK did not adopt a blanket classification to all episodes of the Headliner as PVPs. RTHK had in fact classified some episodes as PVPs and some as non-PVPs. In so doing, RTHK must have made the classification with reference to the substance of each episode and had no difficulty in doing so. Such conscious classification does not indicate any lack of choice, as contended by counsel.

(3)  The Judge had failed to give adequate consideration to the unique features of a satirical programme, which is not designed to present truth and depict reality, but to entertain through exaggeration and dramatization. However, as demonstrated above, when the true nature and contents of Headliner and the Episode as satire are properly analyzed, the satirical remarks or expressions contained value judgments, which were the personal views of the maker. They fell within the rubric of PVPs.

F.  Issue 2

50.  §1A of Chapter 9 is one of the provisions of the Code for regulating programme content. It requires a broadcaster to “make reasonable efforts to ensure that the factual contents of [PVPs][41] are accurate”. In terms of analysis, two questions arise in determining if there was a breach by RTHK in respect of Remarks A and B. The first and prior question is: as a matter of construction, what did the duty that §1A imposed on RTHK entail? After ascertaining the scope of the duty and how RTHK should comply with it, the next question is: was the Authority correct in finding that there was a breach by RTHK for either Remark? The Judge came directly to the second question without dealing with the first. With respect, he had erred.

F1.  Contextual considerations

51.  For the construction of §1A, a number of contextual considerations are of immediate relevance.

52.  First, pursuant to section 3(8) of the BO, the Authority issued and revised the Code after consulting broadcasters including RTHK and the general public. This ensures that the Code reflects prevailing social norms and standards.[42]  Provisions such as §1A ensure that the programme content of broadcast complies with codified standards which reflect social norms in the Hong Kong context.[43]

53.  Second, the regulation on programme content varies according to the characteristics, pervasiveness and degree of influence of the television programme services: see §3 of Chapter 1 (Preamble). Domestic free television programme services, including those of RTHK, are recognized as the most pervasive of all. They are therefore subject to the most stringent content regulation as compared to other categories of television programme services: see §4 of Chapter 1.[44]

54.  The content control exercised by the Authority as regulator is underpinned by the interplay of several pertinent considerations:[45]

(1)  Freedom of expression. As required by section 4(4) of the CAO, the Authority must act in a manner consistent with the provisions of the HKBOR as it appears to be relevant in the circumstances, which include the freedom of expression guaranteed in BOR 16(2).

(2)  Public interest. Free-to-air broadcasting in Hong Kong involves the use of radio spectrum, a valuable public resource, by broadcasters for free. Regulation is thus required to safeguard the public interest.

(3)  Social duty of the broadcasters. Because of the pervasiveness and influence of television broadcasting, broadcasters play a unique social role of providing infotainment free of charge to the public and hence should shoulder commensurate responsibilities towards society at large.

55.  Third, the social duty imposed on broadcasters reflects BOR 16(3), which stipulates that the exercise of the rights provided in BOR 16(2), including the right to freedom of expression, carries with it special duties and responsibilities. Put differently, such concomitant special duties and responsibilities are inherent in the exercise of the right to freedom of expression. Imposition of special duties and responsibilities on broadcasters does not constitute any infringement of their right to freedom of expression.

56.  Fourth, the primary duty rests on broadcasters to ensure compliance with the Code, including §1A: see §9 of Chapter 1, which provides:

“The editorial responsibility lies with the licensees themselves. The Code sets out the factors which should be taken into account when making editorial judgment. It is the responsibility of the licensees to ensure that any programmes delivered on their licensed services will comply with the Code. Judgment will always be called for by the licensees.”

Further, broadcasters are expected to exercise their own editorial judgment and draw up their own guidelines to ensure their programmes comply with the Code: see §§9 to 11 of Chapter 1.[46]

57.  Fifth, the Authority, as regulator, does not preview or pre-censor any programmes: §9 of Chapter 1.

58.  Finally, complaints about broadcast are handled by the Broadcast Complaints Committee appointed by the Authority under section 10 of the BMPO. It comprises members of the Authority and other co-opted members from different backgrounds, such as social services, education and academia, thus representing a cross-section of society. Since the Code seeks to reflect the prevailing social norms and standards, that Committee with its composition is best placed to provide an objective assessment of the complaints having regard to public expectations.[47]

59.  As observed by Au J (as he then was) in Cheung Tak Wing v Communications Authority [2018] 5 HKLRD 515, at [121] – [122] the regulatory regime exercised by the Authority in relation to television programme content is post-broadcast and complaint driven: see section 11 of the BMPO. In fact, as seen, §9 of Chapter 1 explicitly stipulates that there is no pre-censorship of broadcast material by the Authority before broadcast. So in handling a complaint in connection with programme content, the Authority carries out a post-broadcast examination to see if the broadcaster has complied with the applicable provisions of the Code. In considering complaints concerning broadcast standards, the Authority is guided by the factors discussed at [54] above and the requirement that complaints must be handled fairly in accordance with the relevant complaint handling procedures.[48]

60.  Specifically, in relation to complaints against RTHK, the Charter further provides:

“25. [The Authority] may classify a complaint as trivial, frivolous, unjustified, partially justified or justified provided that the two last mentioned classifications may be made only –

(a) by [the Authority] itself; and

(b) after the procedures in paragraphs 26 and 27 below have been followed.

26. Where there is prima facie evidence to support a complaint, except one which is classified as trivial or frivolous, it will be referred to the Complaints Committee appointed under section 10 of the Broadcasting Authority Ordinance (Chapter 391) (the CC). The CC, upon receipt of a complaint referred to it, will –

(a) give RTHK or its representative a reasonable opportunity to make representations both orally and in writing;

(b) consider any representations made, whether orally or in writing, by or on behalf of the complainant and RTHK;

(c) consider any evidence received by it, whether tendered on behalf of the complainant or otherwise, which it considers relevant to the complaint; and

(d) make recommendations concerning the complaint to [the Authority].

27. [The Authority] will consider the CC’s recommendations and arrive at provisional findings about the complaints. Further representations, orally and/or in writing, by or on behalf of RTHK should be invited on [the Authority’s] provisional findings.

28. [The Authority] will decide on .the classification of the complaint (namely, whether it is unjustified, partially justified or justified), and may impose appropriate sanctions on RTHK including an order to issue a public apology and/or to make appropriate corrections.”

61.  Construed with the above considerations in mind, (1) the duty imposed by §1A on broadcasters; and (2) the Authority’s approach to complaints about breach of such duty, may be set out as follows.

F2.  Duty imposed on broadcasters

62.  §1A covers a wide range of programmes, including news, current affairs programmes, financial programmes, PVPs, documentaries, etc., with the commonality that they all contain, refer to or are based on facts. Evidently, the factual content will significantly impact on their integrity, credibility or reliability. It is therefore of paramount importance that the factual content is accurate. While §1A does not require absolute accuracy, it imposes the duty on broadcasters to carry out verification to ensure accuracy, thus subjecting the programme content to control which is commensurate with the specific nature and characteristics of those programmes.

63.  As the language of §1A makes it clear, the duty to verify only applies to the factual content since, by definition, facts are known to be true, to have happened or exist and are capable of being confirmed by evidence or information. It does not cover other matters including, relevantly for present purposes, personal views the truth of which is not susceptible of proof.

64.  The duty is to make reasonable efforts to ensure accuracy of the factual content. As already pointed out, it does not require absolute accuracy. Broadcasters must exercise their own independent editorial judgment to determine how to carry out the verification to satisfy §1A. Whether the efforts made are reasonable or not is dependent on the actual circumstances such as the nature or subject matter of the factual content. For example, the more serious a factual allegation is made, the more solid the factual basis has to be. The broadcaster may well need to weigh more carefully the extent of reliability of the information or take more steps to verify its accuracy.

65.  To make it meaningful, the verification must be carried out before broadcast so as to achieve the purpose of avoiding dissemination of inaccurate factual content in the broadcast. As submitted by Mr Abraham Chan SC, for the Authority,[49] the duty focuses on the integrity of the production and communicative process.

66.  The duty of verification imposed by §1A on broadcasters is inherent in and concomitant with the exercise of their right to freedom of expression under BOR 16. It serves the public interest involved in the use of radio spectrum by them for free. It is also part of the social responsibilities placed on them in playing their unique role.

67.  Mr Chan seeks to rely on the Strasbourg jurisprudence relating to journalists in support of the Authority’s case. In that context, the Strasbourg case law emphasises that by reason of the duties and responsibilities inherent in the exercise of the freedom of expression, the protection to the press in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism, which has to be determined at the time of the publication, rather than with the benefit of hindsight: see Bladet Tromso v Norway (2000) 29 EHRR 125, [65]-[66]; Pedersen v Denmark (2006) 42 EHRR 24, [78]; an Alithia Publishing v Cyprus, App No 17550/03, [65]-[67]. The same applies to works with a fictional element if they refer or allude to real individuals: see Lindon v France (2008) 46 EHRR 35, [51]-[55].

68.  I agree that support may be derived from the Strasbourg case law by analogy in three aspects in the construction exercise: 

(1)  It reinforces the proposition that the duty to verify is inherent in the exercise of freedom of expression.

(2)  It echoes the proposition that verification has to be undertaken at the time of broadcast and not with the benefit of hindsight. It follows that reliance by a broadcaster to post-broadcast materials to justify its pre-broadcast verification is quite misplaced.

(3)  It shows that the duty to verify the factual content equally applies to a satire alluding to real individuals by way of fiction or fictional characters if it also involves factual allegations: see Lindon v France.

F3.  Approach to complaints by the Authority

69.  In approaching complaints of breach of §1A, since the duty imposed only concerns factual content, the Authority first needs to identify what is the factual content involved. In particular, for a PVP, the Authority must draw a clear distinction between facts and personal views. Next, the Authority has to examine closely the efforts made by the broadcaster to verify the accuracy of the factual content pre-broadcast to determine if they were reasonable in all the circumstances. Put simply, the dispositive question of breach is the reasonableness or otherwise of the efforts made. The Authority will take a holistic view in determining if the complaint is established. As I understand his submissions, Mr Chan agreed that this is the correct general approach.

70.  Turning to RTHK, according to the complaint mechanism in the Charter, the Authority has to be satisfied that there is prima facie evidence to support the complaint that RTHK had failed to comply with §1A. The burden rests with the complainant to do so. The Authority will then invite representations by RTHK and after consideration, determine the classification of the complaint. Applying the above general approach to Remarks A and B, the Authority has to differentiate between the facts involved and the personal views of the unidentified maker represented by dramatization, exaggeration, extortion, etc; and then consider if RTHK had made reasonable efforts to ensure the accuracy of the facts.

71.  The Judge took the view that on a proper construction of §1A, a prior finding that the relevant factual content was in fact not accurate is a pre-requisite to a finding of breach; and that for that matter, the burden is on the complainant or the Authority to prove the falsity or inaccuracy of the relevant factual content. I respectfully disagree. Such a construction is not borne out by the clear language used in §1A. More importantly, as submitted by Mr Chan, such a construction would allow broadcasters to escape a finding of non-compliance even if it had made no reasonable efforts to ensure the accuracy of the relevant factual content at all when the circumstances clearly called for verification. That would defeat the manifest purpose of §1A. Lastly, the Judge’s view that any finding of breach of §1A in respect of factual content that was in fact true would be necessarily inconsistent with the exercise of the right to freedom of expression, cannot be supported. For the correct question to ask is whether requiring broadcasters to make reasonable efforts to verify factual content pre-broadcast is inconsistent with the exercise of their right to freedom of expression. As explained, the answer is no.

F4.  Remark A

72.  For the above reasons, the Judge had proceeded on a wrong footing when he concluded that in the absence of a finding by the Authority on its factual accuracy, its finding that RTHK had failed to make reasonable efforts to ensure factual accuracy of Remark A could not stand. It leaves me with the task of examining if the Authority had approached the complaint and arrived at its finding correctly.

73.  On the evidence, despite Mr Chan’s contrary submissions, I have doubt if the Authority had applied the correct approach as set out above. For it would appear that both RTHK and the Authority had not identified the relevant factual content in Remark A that might have triggered the duty under §1A. Both RTHK and the Authority focused primarily on the question if there was sufficient factual basis for Remark A, which is more pertinent to the inquiry under §17(b) of Chapter 9.

74.  In the Initial Representations, at [77.3], RTHK stated that: “While the remarks may be provocative, critical or even partial, they are honestly held opinions and commentaries that have a sufficient factual basis.”  In the Further Representations, RTHK insisted that the Authority must have found that Remark A was objectively false before finding a breach of §1A: [44]-[45]. It then made two further points:

(1)  To the extent that the requirement for complete factual accuracy applies to an absurdist sketch comedy show at all (which is denied), Remark A had a sufficient factual basis and thus complied with the requirement for accuracy. In particular, the remark that the Government allocation of PPE to Police may 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: [46].

(2)  In February 2020, when the COVID-19 outbreak was at an early stage, medical professionals and hospital unions repeatedly raised concerns over the serious shortage in PPE and this was widely reported in the media. The primary intention behind the remark was to reflect those concerns and sentiments for the shortages suffered by healthcare professionals, in the context of the issue of allocation of such resources as between them and other public bodies such as the Police. They are legitimate and valid concerns and could have been properly expressed as such in an actual PVP: [47]. The contrast in the perceived PPE supply had caught public attention. The segment alluded to such public concerns and presented them in a satirical manner and tone. For example, the term “大把” is by nature a vague one and was used to create a dramatic contrast to the deficiency faced by medical professionals. As has been repeatedly emphasized, the exaggeration is part and parcel of the artistic expression of satire. It does not seek to assert the truth of the statements. A reasonable viewer would be able to discern the satirical presentation from the underlying facts that substantiate the Remark: [49].

75.  Point (1) was an attempt to show that Remark A had a sufficient factual basis. It could be said that it might have raised another factual allegation, namely, by reasonable inference from the facts known at the time, the Government’s allocation of PPE to the Police might have been disproportionate in scale and need as compared to healthcare professionals (“Allegation 1”). As to Point (2), it could also be said that on a closer analysis, it raised another factual allegation that there were since February 2020 public concerns and sentiments for the shortages suffered by healthcare professionals as compared to other public bodies such as the Police (“Allegation 2”). The term “大把” was an exaggeration based on Allegation 2. As such, the term “大把” was not factual.

76.  Thus analysed, it would appear to be RTHK’s case that the factual content in Remark A might have also included Allegation 1 and Allegation 2. I put RTHK’s case in such a way advisedly because RTHK had not explicitly identified Allegation 1 or Allegation 2 as factual content for the purpose of §1A.

77.  In the Final Decision, at [8], the Authority firstly rightly decided that RTHK could not rely on post-broadcast materials or materials that it had not positively said that it was actually aware of or relied on to justify the efforts of verification; and concluded that RTHK had failed to use reasonable efforts to ensure the accuracy of Remark A. It went on to point out that the crux of the matter was whether there was any proof that the Police had a surplus stock of surgical masks (“i.e. “大把有得剩”) and for the reasons that it gave at [8] and [9], found that that allegation had no sufficient factual basis. In particular, the Authority said at [9]:

“9. [The Authority] noted that RTHK had repeatedly argued that Remarks A and B were made based on the public concerns and sentiments on the relevant issues, which were widely covered in the media. In this regard, [the Authority] would like to point out that while PVPs provide room for opinions, such as the public concerns and sentiments alleged by RTHK, to be expressed, the ground rule is that facts must be respected and the opinions expressed in a PVP should not rest upon false evidence. This rule applies whether or not the PVP was presented in a satirical manner. Media reports citing opinions held by some people in the community in relation to the supply of PPE and the patrolling policy of the Police could not be taken at face value as the factual basis for Remarks A and B. Based on the analysis in paragraph 8 above, [the Authority] considered that RTHK failed to demonstrate that the remarks, precisely, “... 口罩…衙差大把有得剩” and “依家仲取消徒步巡邏，唔駛行咇”, rested upon true evidence and RTHK had not made reasonable efforts to ensure that the remarks were factually accurate.

78.  In making its findings against RTHK, the Authority must have regarded the term “大把”, as part of the term “大把有得剩”, as factual, without however giving reasons, although it was RTHK’s case that it was exaggeration based on facts. Moreover, the Authority had not dealt with Allegation 1 or Allegation 2 apparently because it had not identified them as potential factual allegation that might have triggered the duty under §1A.

79.  Further, in addressing RTHK’s case that Remarks A and B were based on public concerns and sentiments as reported in media reports, the Authority treated them as opinions. But it would appear to be RTHK’s case that, as a matter of fact, there were media reports reporting on such public concerns and sentiments; and Remarks A and B were expressing them in a satirical manner. The Authority had not explained why it did not regard the allegation that there were such media reports as factual.

80.  In my view, had the Authority applied the correct approach to §1A, it should have identified the factual allegation in Remark A that triggered the duty of verification on RTHK; invited RTHK to make representations; then made findings on them, including if the factual allegation identified was factual for the purpose of §1A and if so, whether RTHK had made reasonable efforts to ensure its accuracy before broadcast. It also behoves the Authority to state the reasons in support of its findings.

81.  Since the Authority’s failure to apply the correct approach is a fundamental error, its finding that RTHK had breached §1A in respect of Remark A cannot be salvaged by Mr Chan’s submissions, which I will not dwell on. Nor do I need to deal with Mr Tam’s submissions in support of the applicants’ case.

82.  For the above reasons, although I differ from the Judge on his reasons, I agree with his conclusion that the Authority’s finding that RTHK had breached §1A in respect of Remark A could not stand.

F5.  Remark B

83.  In respect of Remark B, the Judge’s conclusion, being tainted by his erroneous construction of §1A, cannot stand.

84.  The evidence shows that both RTHK and the Authority similarly focused primarily on the question if there was sufficient factual basis for Remark B. In the Further Representations, at [52], RTHK stated that it was actually properly grounded in fact. It then went on to say:

“53. As reported on 20 January 2020, the Assistant District Commander (Crime) of Yau Tsim District Tsang Chung-bun admitted that there was a serious problem of understaffing in the district and as a result, CID officers were mobilised to carry out beat patrol in plain clothes, 「唔係街上冇曬警察，而係我哋用咗其他形式針對罪行_. Tsang explained that under this arrangement of beat patrol, 「『行咇』便衣警員初時以私家車巡邏，其後改為『落地』巡邏」. In other words, there was at least a period of time in Yau Tsim District where foot patrol was replaced by car patrols.[50] It appears from the said report that the suspension of foot patrol was authorized by senior police officers and was intentionally implemented as a result of a serious problem of understaffing in the district. It was not an isolated incident but an operational arrangement or policy in Yau Tsim District. The remark “取消徒步巡邏”is therefore a statement of fact.

54. Furthermore, media reports cited in RTHK’s Letter showed that there were rising public concerns over the suspension or decreasing level of foot patrols by police. According to those reports, the Commissioner of Police was considering whether to replace beat patrolling duty with a “standby-mode”, indicating that there is a chance that the apparent reduction of foot patrols may become an official operational policy. The Programme simply expressed the public concerns over a generalised policy of suspension in a playful manner. No reasonable viewer would seriously think that the suspension of foot patrol would shield police officers from contracting airborne diseases such as COVID-19. Nor would they believe that the suspension of beat patrol helps to fight aging. Remark B is therefore well within the acceptable limits of satirical expression (even assuming any factual basis need to be shown in order to justify broadcasting a joke).”

85.  Two points arose from RTHK’s above representations. First, RTHK regarded the remark “取消徒步巡邏” as factual. Second, RTHK’s case was that, factually, there were rising public concerns over the suspension or decreasing level of foot patrols as reported in media. Remark B was an expression of such public concerns in a playful manner, which was a satirical expression. As such, the requirement of factual accuracy did not apply.

86.  In the Final Decision, at [8], the Authority identified the factual allegation involved in Remark B as there was “a full suspension of foot patrols” by the Police, thereby implicitly rejecting RTHK’s case to the contrary. The Authority did so by reading Remark B in the context in which it arose. The Authority next rejected RTHK’s reliance on some media reports on the suspension of foot patrols in a particular district during a certain period; and on the possible change in patrolling arrangements, to justify the accuracy of that factual allegation. As the decision-maker, the Authority was entitled to do so for both matters, and I do not see any ground to interfere.

87.  However, as seen, at [9] of the Final Decision, the Authority dealt with media reports on the public concerns and sentiments which RTHK said to be underpinning Remark B by treating such concerns and sentiments as opinions. However, the Authority had not addressed the second point raised in RTHK’s case as set out at [85] above. In my view, this is a fundamental error, rendering its finding that RTHK had breached §1A in respect of Remark B unsupportable. That being my conclusion, I need not deal with counsel’s submissions, which approached the matter quite differently.

G.  Issue 3

88.  §17(d) of Chapter 9 states:

“Licensees should be mindful of the need for a sufficiently broad range of views to be expressed in any series of [PVP].”

89.  The Judge quashed the Authority’s finding that RTHK had breached §17(d) because it had failed to take into account the fact that RTHK had twice invited the Police to present its views and provide clarifications by way of studio interview, which were not taken up. That failure was, as found by the Judge, irrational and Wednesbury unreasonable.

90.  Mr Chan first complained that this ground was not pleaded in the Form 86.

91.  In the Further Representations, RTHK relied on the invitations in answering 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 in breach of §17(c) of Chapter 9 of the Code.[51] It did not explicitly rely on it in respect to the complaint under §17(d). The same is true for the Form 86. The invitations were pleaded in connection with §17(c) but not §17(d): see [113(2)]. In rounding up the applicants’ case that the Final Decision, which presumably included its finding the RTHK breached §17(d), was irrational and Wednesbury unreasonable, there was a reference at [116] to the invitations. In short, there is some ambiguity in the pleading if the applicants relied on the invitations in connection with §17(d).

92.  Leaving pleading aside, the applicants did rely on the invitations in their submissions to the Judge on §17(d).[52] Apparently, Mr Chan had not taken the same objection on pleading then. In the circumstances, I consider that it is too late for him to do so now.

93.  Mr Chan next argued that an authority is not required to mention every factor in its reasons. One must consider the overall circumstances to determine if it did in fact ignore a factor. Here, the Authority did take into account the invitations when exonerating RTHK in respect of §17(c). There is no reason to think that the Authority then failed to consider the same fact in connection with §17(d). However, given their obvious relevance, one would expect the Authority to not only expressly refer to but actually deal with the invitations before finding a breach of §17(d). The only inference that can be drawn from such omission is that the Authority had failed to take them into account.

94.  Finally, Mr Chan submitted that it was within the Authority’s expert purview to form the view that it was incumbent on RTHK to take steps to portray a sufficiently broad range of views on its own initiatives even if the Police did not respond to the invitations. However, that argument misses the point that the invitations were a relevant factor that the Authority ought to have but failed to consider.

95.  In conclusion, I agree with the Judge’s finding on §17(d).

H.  Issue 4

96.  §2(b) of Chapter 3 applies to all categories of television broadcast. It stipulates:

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

…

(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;”

97.  The question is whether the portrayal by Wong in the Police Comedy Sketch as described at [8(2)] above was denigrating or insulting to the Police based on their social status. The Authority found that it was, which was confirmed by the Judge as a finding falling within its reasonable judgment, as the decision-maker, to make.

98.  The main point taken by Mr Tam is that both the Authority and the Judge erred in concluding that the Police Comedy Sketch targeted at the Police’s status rather than their conduct in the execution of their duties in the fight against COVID-19. I accept that when viewed in context, the Police Comedy Sketch did target the Police’s efforts in fighting the pandemic. But it went further than that. Wong’s portrayal disdained the Police and those joining the Police as worthless as trash. Such a mockery was quite independent from ridiculing the Police’s efforts in fighting against the pandemic. As such, it is in my view open to the Authority, as the decision-maker, to find that it was denigrating and insulting to the Police based on their social status.

99.  As to the other points taken by Mr Tam, they were repetitions of the submissions advanced before and roundly rejected by the Judge. I would like to add the following:

(1)  As pointed out by the Judge, the purpose of §2(b) of Chapter 3  is clearly to prohibit broadcast of offensive materials which are denigrating or insulting to the individuals or groups concerned. Mr Tam’s contention that it should only cover discriminatory materials understood in the human rights/anti-discriminatory context is unduly restrictive and not borne out by the language used. It would defeat the manifest purpose of §2(b).

(2)  Again, as pointed out by the Judge, the term “social status” should be given its natural and ordinary meaning. Being a police officer may be properly regarded as a social status for the purpose of §2(b). Mr Tam’s contrary construction is again unduly restrictive. Moreover, including the Police by virtue of their status in §2(b) does not shield them from criticisms. It only protects them from denigration or insult by offensive materials and no more.

(3)  Contrary to Mr Tam’s submissions, the prohibition imposed by §2(b) does not constitute any infringement of the freedom of expression. Instead, it is part of the special duties and responsibilities inherent in the exercise of freedom of expression. The same prohibition equally applies to satirical materials. I accept that given its specific nature and characteristics, satires should be afforded greater latitude in terms of content and expression so as to allow them to poke fun or even agitate by exaggeration and distortion of reality, etc. However, it is not a license to denigrate or insult by offensive materials. There is a line of decency that even satires cannot cross. Indeed, §4.13 of the Producers’ Guidelines requires artists, writers and entertainers when making, among others, satire, to bear in mind prevailing mood and views on decency.

I.  Issue 5

100.  Section 21K(3) of the High Court Ordinance[53] and Order 53, rule 3(7) of the Rules of the High Court[54] both mandate the court not to grant leave for judicial review “unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”  In Kwok Cheuk Kin v Director of Lands (No 2) (2021) 24 HKCFAR 349, the Court of Final Appeal at [61] affirmed that the statements by Chow J (as he then was) in Kwok Cheuk Kin v Commissioner of Police [2017] 6 HKC 93, [31]-[34]; and Lord Reed in AXA General Insurance v HM Advocate [2012] 1 AC 868, [170] represent the normal principles to be applied in Hong Kong. In short, whether an applicant has sufficient interest is a context-driven question. The court will adopt a holistic approach by taking into account a host of relevant considerations, including the merits of the application, the importance of vindicating the rule of law, the importance of the issue raised, the existence and absence of any other challengers who have a greater interest in the matter, and the nature of the breach of duty against which relief is sought.

101.  Here, there existed other parties with a far much greater interest in the matter than the applicants did but had not deemed fit to take up the constitutional challenge: see Kwok Cheuk Kin v President of Legislative Council [2021] 1 HKLRD 1247, per Lam VP (as he then was) at [37]. And there was no reason why the applicants should be allowed to enforce their rights instead. That alone is sufficient to dispose of the question of standing.

102.  It is the applicants’ contention that RTHK, as a public broadcaster, has its own right to freedom of expression, which was engaged by the Final Decision. Even assuming and without deciding that they were correct, that contention actually runs against them. For RTHK had decided to accept the Final Decision unreservedly. In any event, the applicants had not pleaded reliance on RTHK’s right.

103.  The applicants next asserted that their members’ right to freedom of expression was engaged. The 1^st applicant was at all material times an active trade union which represents RTHK’s programme staff, including producers, directors, journalists and members of the production teams of various programmes of RTHK. As to the 2^nd applicant, one of the Headliner hosts and 3 other staff members of Headliner are its members. It should, however, be noted that the applicants had not referred to or identified those members who were actually involved in the production of the Episode.

104.  Mr Chan was correct in submitting that this unpleaded case is not open to the applicants. More importantly, pleading aside, the assertions were not sufficient. For what the Final Decision engaged was the right of their members who were actually involved in the production of the Episode, who had chosen not to mount the constitutional challenge. As submitted by Mr Chan, there would have been real but unanswered questions as to their role played in determining the relevant content of the Episode; and why they chose not to apply for judicial review.

105.  The applicants asserted that their own right to freedom of expression had been infringed for reasons which the Judge had, rightly in my view, rejected. They also attempted to launch a systemic challenge against the Code, which must be dismissed as yet another unpleaded case. Mr Chan is also correct in pointing out that the applicants were not involved in any way in the production or broadcast of the Episode; and that nothing in the Final Decision prevents them from expressing their own views by other means in the future.

106.  For the above reasons and those given by the Judge with which I respectfully agree, he was correct in holding that the applicants did not have standing to mount the constitutional challenge.

J.  Conclusions

107.  For the above reasons, I would answer the Issues identified in Part C as follows:

(1)  Issue 1, yes.

(2)  Issue 2, no.

(3)  Issue 3, no.

(4)  Issue 4, yes.

(5)  Issue 5, no.

108.  Accordingly, I would dismiss the Authority’s appeal in CACV 579/2021. I would allow the applicants’ appeal in CACV 584/2021 to the limited extent that :

(1)  the Judge’s order that the Authority’s finding on §1A of Chapter 9 of the Code in respect of Remark B stands, be set aside;

(2)  there be a declaration that the Authority’s said finding cannot stand; and

(3)  there be an order of certiorari to remove into the High Court and quash the Authority’s said finding;

and dismiss the remainder of the applicants’ appeal.

109.  The Judge did not remit the matters to the Authority for fresh consideration because of lack of utility. I note that the applicants have not appealed against this part of the Judge’s order. In the circumstances, I consider that interest of justice has been served by the Court’s expositions of the law and principles raised in these appeals. I likewise would not make any order of remittance.

Hon Kwan VP:

110.  I have had the benefit of reading in draft the judgment of the Chief Judge of the High Court. I agree with his analysis and conclusions on Issues 1 to 3 and 5 and respectfully disagree with him on Issue 4. The focus of my judgment is on the interpretation and application of the relevant provisions of the Code. I gratefully adopt the background facts summarised in his judgment and the terms and expressions he used.

Issue 4

111.  To recap, Issue 4 is as follows:

112.  Did the Authority correctly find that RTHK had acted in breach of §2(b) of Chapter 3 of the Code by including in the Police Comedy Sketch material which is denigrating or insulting to the Police on the basis of social status?

113.  Chapter 3 of the Code is headed “General Programme Standards”. §2 of that chapter is found under the heading “General Principles for All Categories of Services”. The provision in §2(b) reads as follows:

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

(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;”. (Emphasis supplied)

114.  The material in the Policy Comedy Sketch found by the Authority to be denigrating or insulting to the Police on the basis of social status was the portrayal by the host “忠勇毅”[55] (played by the actor Wong He) who parodied a police officer, with his neck and hands wrapped with rubbish bags, emerging from a litter container, speaking while standing inside and later retracting to the same. This is how the Authority explained its decision in the Final Decision:

“13. … The [Authority] noted that the segment “驚方訊息”[56] began with Wong, who parodied a police officer, with the neck and hands wrapped with rubbish bags, and emerging from a litter container and ended with him retracting to the litter container after he appealed to viewers to join his profession, and this was portrayed repeatedly[57]. In reaching the Provisional Findings, the [Authority] considered that the repeated portrayal could be considered to be deliberate with the intention, obvious to general viewers, to insult and to convey the prejudice that police officers were a group of people who were seen as trash, were revulsive and spurned. Such characterisation suggested that only worthless people would join the Police, possibly ridiculing those serving in or aspiring to join the Police. It was unnecessary and showed that the denigration and insult was an attempt to persistently promote the underlying insult and prejudice and not inadvertent or incidental to a single plot or skit. It had nothing to do with any particular/specific conduct or the work of the Police or public concern on the way the Police exercised their authority. It was meant to denigrate the Police as a social group, and make gratuitous attack on that entire group. It was also unrelated to the point of criticism of public officials who wield power, and is unrelated to the question of freedom of expression. Simply put, a TV broadcaster could not shirk its responsibility in complying with the TV Programme Code on the ground of freedom of expression. Based on the above analysis, the [Authority] considered that the way Wong was portrayed in the opening and ending of the concerned segment in the programme had denigrated and insulted the Police on the basis of social status.”

115.  It is pertinent to note it was the way Wong was portrayed “in the opening and ending of the concerned segment” that the Authority found to be denigrating and insulting to the Police on the basis of social status.

116.  The judge dealt with this in §63 of the Judgment:

“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.”

117.  The judge was not saying that no distinction should be drawn between criticism that targets one’s status as opposed to one’s conduct. He was merely saying that the portrayal of Wong – in the opening and ending sequences of the segment concerned – had no apparent link to any work of the Police or the public’s dissatisfaction with their professionalism, and seems to be targeting police officers as a group simply on account of their status.

118.  In applying §2(b) of Chapter 3 of the Code, quite clearly a distinction should be drawn between criticism that targets one’s status as opposed to one’s conduct. On the plain wording of §2(b), only the former should fall within the provision. As Lord Neuberger of Abbotsbury said in a different context in R (RJM) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2009] 1 AC 311 at §45:

“… I consider that the concept of ‘personal characteristic’ (not surprisingly, like the concept of status) generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him.”

119.  If one merely focused on the opening and ending sequences of the Police Comedy Sketch, as the Authority and the judge had done, it is correct that the portrayal would have “no apparent link to any work of the Police or the public’s dissatisfaction with their professionalism”, and would seem “to be targeting police officers as a group simply on account of their status”. This approach is wrong in law. In considering the parts said to be denigrating or insulting to the Police and ignoring what was portrayed in between the opening and closing sequences is to do so without regard to the context, which includes the satirical nature of the Episode, and context is crucial to the proper interpretation of the material regarded as offensive.

120.  The relevant context was set out in some detail in the “Facts of the Case” in the Provisional Decision but not alluded to in the Final Decision, and may be stated as follows:

(1)  In the Police Comedy Sketch, the host Wong, who was named “忠勇毅” and appeared to dress in police uniform with the neck and hands wrapped with rubbish bags, emerged from a litter container on the rooftop of a building and remarked “喺庚子年，中國武漢新型冠狀病毒肺炎肆虐全世界嘅時候，第一次同大家見面，祝你搵到一份身體健康、隨心所欲嘅工作”.

(2)  Next, a footage was shown in which some ambulancemen in protective clothing were standing beside two ambulances parked near to a berthed cruise ship[58], while Wong was depicted (by computer effect) to be standing beside four police officers at a distance away from the two ambulances, making the remarks “喺面對已知嘅危險，我哋係有權同危險保持住半隻郵輪咁遠嘅距離，即係我而家用呢一種聲量對住救護車嗰邊講 ‘Hello’，佢哋係聽唔到嘅。Hello, Hello! (Wong’s voice became louder and louder).”

(3)  The next scene showed a footage of the evacuation of the residents of Hong Mei House in Cheung Hong Estate, Tsing Yi[59]. While remarking “至於面對嗰啲未知嘅危險，我哋任何一位同事都可以穿上呢一種可以抵抗生化武器襲擊嘅裝備。嗱，呢一套保護衣呢，喺武漢好多醫護人員可能摸都未摸過㗎”, Wong, who was wearing white protective clothing, a surgical mask, protective goggles and covering his head with a large distilled water bottle, took selfies and pretended to be driving.

(4)  Wong was then seen on the rooftop of the building again, making the remarks “加上消防員、民安隊駐守隔離營肩負起應變嘅任務；社工就會負責運送生活物品入去隔離營俾隔離人士。電話遙控監察強制檢疫人士嘅工作，又有學生義工代勞” with relevant footages[60]. It was followed by a skit in which Wong, dressing like a doctor with a name tag “醫學生”, made a phone call to an elderly man (also played by Wong) who appeared to be under compulsory quarantine but was walking on the street. When the doctor-like character became aware that the elderly man might not be at home, he told the elderly man “你快啲返屋企啦”.

(5)  After the above skit, Wong continued with the remarks “依家仲取消徒步巡邏，唔駛行咇[61]，將當值時暴露喺空氣之中嘅機會，減到近乎零呀! 除咗有效防疫之外，仲可以抗衰老添! 另外，最新優惠登場! 當值時使用政府車輛，作私人購物及速遞用途”[62], with the display of a photo of an online news report entitled “[車Cam影哂] 疑濫用警車交收「CSI」口罩 警方改口辯稱「自費購買」”.

(6)  Later on there was a depiction of Wong taking off his protective gear and weapons in a restaurant and remarked “落咗更，無哂頭盔、眼罩、防毒面具、護甲、伸縮警棍、胡椒噴霧、點三八、曲尺、雷鳴登、AR 15、水炮車保護，咁出街食飯，會唔會好唔安全㗎?” and “唔駛擔心，隔離房嘅熱心市民會保護你㗎嘛”.

(7)  Then several images of Wong appeared on screen (by computer effect) and remarked “仲唔快啲加入我哋” and “趕緊加入我們” (in Putonghua) with the caption “驚方招募” displayed on screen. Before getting back into the litter container, Wong remarked “請大家留意一下，喺過去幾個月，有幾組懷疑、可能或者係冒認我哋嘅人，用我哋慣用嘅手法、喺獲將受害人嘅信任之後，俾佢哋入屋、搜身，最終招致財物嘅損失 … 我們下集再見”.

121.  I accept that the Police was mocked and lampooned as worthless and unprofessional in the opening and closing sequences of the segment, and that this must be insulting and denigrating to them. However, it is clear that when the opening and closing sequences are considered in the context of the entire segment, the mockery was directed towards the work of the Police in the fight against COVID-19. The dramatization, in an exaggerated and over-the-top manner, covered incidents when the Police were well equipped with protective gear but did not appear to be doing much compared to medical staff and other government departments, who were not attired in full PPE or not as well equipped. There is apparently a link to the Police’s work and the public dissatisfaction with the Police’s work or professionalism in the execution of their duties in light of the excessive manner of protecting themselves against the pandemic.  

122.  I have taken note of the point made by the Authority that the portrayal in the opening and closing sequences of the Episode was repeated in five subsequent episodes, thus showing that the mean characterisation was deliberate and not inadvertent or incidental to a single plot or skit but an attempt to persistently promote the underlying insult and prejudice. The pertinent question is whether it can reasonably be inferred from the repeated portrayal that the insult and denigration of the Police was on the basis of social status and not on account of their conduct.

123.  As the five subsequent episodes of Headliners have not been adduced in evidence, the contents of what was portrayed in between the opening and closing sequences of the relevant segment in the subsequent episodes are not known to the court. It is unlikely that the Authority had taken into account the contents in between for the subsequent episodes, assuming that the Authority followed the same approach as for the Episode. It should also be borne in mind that the Police Comedy Sketch in the Episode was the first time that the character played by Wong was introduced. The repetition in subsequent episodes of the opening and closing sequences for this new segment could well be some kind of ‘jingle’ to bring to the mind of audiences this new character by his signature features, moves and striking image. In these circumstances, I do not think a reasonable inference can be drawn merely from the repetition that the insult and denigration of the Police was on the basis of social status.

124.  Viewed objectively and in the context of the whole segment, I do not agree that the material in the Policy Comedy Sketch found by the Authority to be denigrating or insulting to the Police must be on the basis of social status. The lampooning in the material was not targeting the Police on the basis of their status. For this reason, the Authority has misapplied §2(b) of Chapter 3 of the Code in finding that the material regarded as offensive was in breach of this provision. This finding cannot stand.

125.  In light of the above conclusion, I do not find it necessary to consider whether being a police officer can properly be regarded as a “social status” within §2(b) of Chapter 3 and express no view whether this term should be interpreted only to protect marginalised groups from discrimination.

126.  Since writing the above, I have had the benefit of reading in draft the judgment of Au JA. I have these observations regarding his judgment.

127.  RTHK in its representations to the Authority and the applicants in their submissions to the judge had contended that the context for the portrayal in the opening and ending of the concerned segment in the Episode was “the widespread public dissatisfaction with the police’s professionalism in the execution of its duties in recent months”[63], borne out by the HKPF Support Rating prepared by the Hong Kong Public Opinion Research Institute. Au JA is of the view that the general social dissatisfaction of the police’s alleged abuse of power and unlawful conduct of police officers in dealing with the social events and protests in the second half of 2019 provided the context of the portrayal. Thus understood, it was reasonably open to the Authority to conclude that the portrayal had “no apparent link” to the public’s dissatisfaction with the professionalism of the police in relation to their conduct in dealing with the social events and protests in 2019.

128.  I respectfully beg to differ. General social dissatisfaction of the police’s alleged abuse of power in dealing with the social events and protests in 2019 provided the underlying context for the portrayal. The proximate context was the work of the police in the fight against the pandemic. As stated in the Further Representations, “The lampooning arises out of the public mood towards the acts of the police”. The general social dissatisfaction provided the setting of the public mood, the acts of the police were the actions taken in the combat against the pandemic that were lampooned in the segment in the Episode. This seems to be the contention advanced before the Authority.

129.  I agree with Au JA in this particular instance it is inappropriate to remit the part of the Final Decision relating to contravention of §2(b) of Chapter 3 of the Code for reconsideration by the Authority. I would simply quash that part of the Final Decision.

Hon Au JA:

130.  I have the benefit of reading in draft the respective judgments of the Chief Judge and the Vice-President. I also agree with the Chief Judge’s judgment on Issues 1 to 3 and 5.

131.  Insofar as Issue 4 is concerned, I agree with the Vice‑President’s conclusion that the Authority’s finding that RTHK had acted in breach of paragraph 2(b) of Chapter 3 of the Code (“Para 2(b)”) should be quashed, but my reasons for coming to that conclusion are slightly different, which I will explain below. I will also gratefully adopt the background facts summarized in the learned Chief Judge and Vice‑President’s respective judgments and the terms and expressions used therein.

132.  My focus will be on whether the Authority had erred in public law sense in its finding (“the Finding”) at paragraph 13 of the Final Decision that the relevant Police Comedy Sketch material targeted the Police on the basis of their social status but not their conduct as contended for by RTHK and now by the applicants.

133.  I do not think there is any dispute between the parties in this appeal that even if Police as a group can be regarded as a “social status”, if the complained criticism is targeted at their conduct instead of simply on account of their status, that should not be regarded as in breach of Para 2(b).

134.  In this respect, in responding to the complaints and the Provisional Decision, RTHK had submitted to the Authority that, the relevant Policy Comedy Sketch material, in portraying a police officer by the host, with his neck and hands wrapped with rubbish bags, emerging from a litter container, speaking while standing inside and later retracting to the same (“the Portrayal”), targeted the conduct of the police in their execution of duties but not their social status. RTHK explained why this was so at paragraph 58 of the Further Representations[64] as follows (footnote omitted[65]):

“58. Second, even if holding the job of ‘police officer’ amounted to a protected ‘social status’, the depiction of Wong He has nothing to do with his social status. At the time the segment was introduced, there have been widespread public concerns over alleged incidents of abuse of power and unlawful conduct of police officers. The sentiment was so prevalent that they were reported by various international media and organisations. The satirical portrayal of Wong He reflects the widespread public dissatisfaction with the police’s professionalism in the execution of its duties in recent months. It is targeted at police officers’ alleged conducts instead of their social status. The lampooning arises out of the public mood towards the acts of the police, and does not advocate hatred on the ground of any ‘status’, still less any social status. As has been noted above, if it were open to the police or other authorities to stifle criticism or mockery on the ground that attacking the police constitutes prohibited discrimination, that would seriously restrict open discussion on matters of profound public interest. It would also curtail the role of the media in ensuring accountability of those who exercise public power.” (emphasis added)

135.  Thus, the premise upon which RTHK had advanced their response to the Authority in this respect is that the sketch was to reflect the general social dissatisfaction of the police’s alleged abuse of power and unlawful conduct of police officers in dealing with the social events and protests in the second half of 2019.

136.  In relation to this, disagreeing with RTHK’s submissions, the Authority at paragraph 13 of the Final Decision came to the conclusion that the relevant Policy Comedy Sketch material and the Portrayal targeted the police as a social group as it “had nothing to do with any particular/specific conduct or the work of the Police or public concern on the way the Police exercised their authority.”

137.  In this judicial review before the Judge, the applicants similarly challenged the Finding by contending that the Portrayal targeted only at the conduct of Police as this “could be taken as an expression of the public’s dissatisfaction with the Police’s professionalism in the execution of their duties” in dealing with the social events happened in 2019 as set out in the Form 86 at paragraphs 74 ‑ 76 and the 2^nd Affidavit of Hung Ka Wing Joseph filed in support of the judicial review. In particular, in addressing why the applicants said the Finding was wrong on the materials, the deponent deposed at paragraph 36[66] as follows:

“36. More importantly, the joke would not have worked if its audience did not already understand the context in which the joke was made, i.e. there is already strong public dissatisfaction with HKPF's professionalism in the execution of their duties. There is now produced and shown to me marked ‘HKWJ-26’ a copy of the Hong Kong Police Force Support Rating prepared by the Hong Kong Public Opinion Research Institute (‘PORI’). The most relevant entry should be the survey conducted by PORI in November 2019[67]. Rightly or wrongly, the HKPF's Support Rating plummeted in the latter half of 2019. It was in that context that the Headliner prepared the programme broadcasted on 14 February 2020. The joke worked because it resonated with its audience, not because it constituted deliberate and gratuitous denigration and insult of officers in the HKPF as a social group.” (emphasis added)

138.  This was also the basis upon which the applicants’ leading counsel advanced their case before the Judge. Thus, at paragraph 61 of the applicants’ skeleton submissions dated 24 May 2021, it was submitted thus:

“61. Fourth, the mere fact that Mr. Wong He (‘Wong’), one of the hosts for Headliner, had dressed himself with garbage bags and appeared out of a dustbin cannot lead to the sole imputation that the gesture was intended to ‘denigrate or insult’ police officers on the basis of their ‘social status’. Indeed, it would be wrong in principle for R to justify its conclusion in reliance on such a far-fetched imputation. If anything, As submit that Wong’s look in that given episode of Headliner could be taken, out of many imputations, as one which was intended to express public dissatisfaction with HKPF’s professionalism in the execution of their duties:

(1) HKPF occupies a prominent public position and possesses power and authority the exercise of which significantly impact the average citizen. In a democratic society like Hong Kong in which freedom of expression and of the press are cornerstone values, those in positions of power must expect to face, and tolerate, critique and satire;

(2) Humour is inherently subjective. Very few jokes will be very funny to everyone. What one person may find hilarious, another person may consider it not funny at all, or indeed even irritating or offensive. Within reasonable limits, that is part of the push and pull of free speech in a democratic society;

(3) The depiction has to be construed in this context. Words and symbols are open to different interpretations, and within the same interpretation, different degree of connotations. To equate litter container and rubbish bags as the same as denigrating the police force as a whole as being ‘trash’, ‘revulsive’, ‘spurned’ and ‘worthless’ [BE/88/611§(f)] is an exaggerated and unjustified reading and a failure to appreciate the context and nature of the programme. It also ignores that the Government has to be open to criticism, and not all criticisms are sweetly reasoned;

(4) More importantly, the joke would not have worked if its audience did not already understand the context in which the joke was made, i.e. there was strong public dissatisfaction with HKPF’s professionalism in the execution of their duties. According to the HKPF Support Rating prepared by the Hong Kong Public Opinion Research Institute [BE/96/642-643], support for the HKPF plummeted in the latter half of 2019. It was in that context that the Episode was prepared. The joke worked because it resonated with its audience;” (emphasis added)

See also [55(4)] of the Judgment.

139.  It is in the context of this contention that the Judge held at [63] of the Judgment that, “[h]owever, 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”. The Judge then further concluded at [64] of the Judgment that it was reasonably open to the Authority to make the finding that the Portrayal was considered to be denigrating or insulting police officers on the basis of their social status. The Judge emphasized that in the challenge, the question “is not whether this court could have made the same finding, but whether the Authority’s finding is Wednesbury unreasonable” and he did not consider that the high threshold of Wednesbury unreasonableness was crossed in the present case.

140.  In summary, the case which RTHK had advanced in its response to the Authority, and the applicants before the Judge, is consistent and has always been this: the Portrayal targeted the Police’s conduct as, when read properly in its context, the sketch was to reflect the general social dissatisfaction of the police’s alleged abuse of power and unlawful conduct of police officers in dealing with the social events in the second half of 2019.

141.  Once understood as such, I agree with the Judge that it was reasonably open to the Authority to conclude that the Portrayal “had no apparent link to” the public’s dissatisfaction with their professionalism in relation to their conduct in dealing with the social events and protests in 2019 as contended. This conclusion in my view is also correct when those materials and context identified by the learned Vice-President at [120] above are taken into account. In other words, the Authority’s decision cannot be said to be Wednesbury unreasonable or it cannot be demonstrated that the Authority had erred in principle as it had failed to take into account those materials and context.

142.  However, by way of paragraph 4(5) of the Notice of Appeal (“NOA”), the applicants in this appeal now seek to challenge the Judge’s above conclusion (and the Finding by the Authority) on the following basis:

“(5) Thirdly, even if a police officer does fall within the ambit of ‘social status’, the learned Judge erred in rejecting the clear difference between criticism that targets one's status as opposed to one's conduct. The overall point made by that part of the sketch is that the HKPF were well equipped with protective gears, yet not actually doing much regarding the pandemic. The appearance of Mr. Wong He in the Episode could be taken, out of many imputations as one which was intended to express public dissatisfaction with the work of the HKPF or the HKPF's professionalism in the execution of their duties in relation to the excessive approach adopted by the police in protecting themselves against the pandemic, and not to target police officers as a group simply on account of their status (c.f. Judgment §§63‑64).” (emphasis added)

143.  The gist of the complaint under this ground of appeal now is therefore that the Judge and the Authority are wrong in their conclusions as the sketch, properly considered in context, can reasonably be regarded as a criticism targeted at the police’s conduct in the execution of their duties in relation to “the excessive approach adopted by the police in over protecting themselves against the pandemic”. See also the applicants’ skeleton submission at paragraph 34 repeating effectively paragraph 4(5) of the NOA.

144.  However, this proposition that the sketch with the Portrayal, when read in context, was in relation to a criticism about “the excessive approach adopted by the police in over protecting themselves against the pandemic” is a new one raised only on appeal.

145.  In the premises, it would seem to me that it should not be open to the applicants in this appeal to raise and rely on this new basis, as this was not the case advanced before the Authority, nor was it the basis raised in the Form 86 and argued before the Judge. In particular, it must be noted that (a) there is no specific ground stated in the Form 86 that the Authority had erred in principle in failing to have regard to the contents between the opening and closing sequences in the Police Comedy Sketch, and (b) the applicants have not proffered any explanation as to why this new basis was only raised now.

146.  That said, I however note that although this is a new basis, the Authority has not raised any objection to the applicants relying on this in the appeal.

147.  In the circumstances, albeit with some reluctance, I would allow this new basis to be relied upon by the applicants in this appeal.

148.  At the same time, it must be noted that the Authority should be the primary decision-maker to determine whether this basis is made out after considering it in its proper context, together with the contents in between the opening and closing sequences of the subject Police Comedy Sketch as well as the other relevant segment in the five subsequent episodes (which as observed by the learned Vice-President at [123] are not in the evidence before this court). For obvious reasons, the Authority has not had the opportunity to do so. The usual course in such circumstances is for the court to remit this part of the Final Decision to the Authority for consideration under the new basis.

149.  On the other hand, I note that, as observed by the Chief Judge, the applicants have not in their NOA asked for any parts of the Final Decision to be remitted to the Authority for reconsideration if they succeed in this appeal. In particular, there is also no appeal against the Judge’s decision not to remit the other parts of the Final Decision (which are also quashed) back to the Authority for reconsideration.

150.  In the circumstances, in allowing this new basis to be relied upon by the applicants, I would also quash this part of the Final Decision for the reasons set out by the learned Vice-President at [118] ‑ [124] above.

Hon Poon CJHC:

K.  Dispositions

151.  In conclusion, we unanimously dismiss the Authority’s appeal in CACV 579/2021.

152.  In respect of the applicants’ appeal in CACV 584/2021:

(1)  it is unanimously allowed to the extent that:

(a)  the Judge’s order that the Authority’s finding on §1A of Chapter 9 of the Code in respect of Remark B stands, be set aside;

(b)  there be a declaration that the Authority’s said finding cannot stand; and

(c)  there be an order of certiorari to remove into the High Court and quash the Authority’s said finding;

(2)  it is allowed by majority to the extent that:

(a)  the Judge’s order that the Authority’s finding on §2(b) of Chapter 3 of the Code stands, be set aside;

(b)  there be a declaration that the Authority’s said finding cannot stand; and

(c)  there be an order of certiorari to remove into the High Court and quash the Authority’s said finding;

and the remainder of the applicants’ appeal is dismissed.

153.  On costs, we direct the parties to file written submissions (limited to 5 pages) within 14 days of the handing down of this judgment, with leave to file submissions in response to the other party’s submissions (limited to 3 pages) within 14 days. We will then dispose of it on paper.