KWOK CHEUK KIN v. CHIEF EXECUTIVE IN COUNCIL

HCAL 169 of 2013
& HCAL 7 of 2014

HCAL 169 of 2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 169 OF 2013

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D E C I S I O N

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1.  By way of these leave applications, each of the applicants respectively applies for leave to apply for judicial review to challenge the putative respondent’s decision (“the Decision”) not to grant a domestic free TV licence to Hong Kong Television Network (“HKTVN”)[1].

2.  The grounds of judicial review relied on by both applicants are effectively the same.  They are in gist that:

(1) The Decision is unconstitutional as it is an interference of the applicants’ freedom of expression to receive information[2], and the putative respondent’s power under the licensing regime under the Broadcasting Ordinance (Cap 562) to refuse an application for free domestic TV licence is not a restriction of that right as prescribed by law[3].

(2) The Decision is illegal as the putative respondent (“CEIC”) disregarded, misinterpreted or misapplied the Government’s published policy and/or it took into account irrelevant considerations.

(3) The Decision is irrational in light of all the circumstances of the HKTVN’s application; and

(4) The Decision is tainted by procedural impropriety as the CEIC has failed to give adequate reasons for the Decision.

3.  All these grounds except the constitutional challenge based on the applicant’s right to freedom of expression in receiving information are similar to HKTVN’s grounds of judicial review, where leave has already been granted to HKTVN.

4.  The CEIC opposes the present leave applications on the basis that the applicants do not have the necessary locus to apply for judicial review.  In other words, the CEIC says the applicants do not have sufficient interest in the matter raised in the intended judicial review as required under O 53 r 3(7) of the Rules of High Court (Cap 4A) and s 21K(3) of the High Court Ordinance (Cap 4).  The CEIC therefore submits that leave should not be granted.

5.  It is common ground that the test on how the court should approach the question of locus at the leave stage is as laid down in the case of IRC v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (“the Fleet Street Case”).

6.  The test is a two-staged process[4]:

(1) At the leave application (stage one), the test is designed to weed out hopeless or meddlesome applications only.  At this stage, except in obvious cases, an applicant’s locus is met if the court is satisfied that the applicant has shown a prima facie case of sufficient interest in the matter.  In relation to this, I would accept the CEIC’s submissions that, in light of the Court of Final Appeal’s judgment in Po Fun Chan v Winnie Cheung[5] in adopting the arguability test (instead of the potential arguability test) in deciding whether or not to grant leave, the court in determining whether an applicant has shown a prima facie case of sufficient interest may have to engage in a more in depth analysis of the applicant’s case instead of just “having a quick perusal of the papers” (as suggested by Lord Diplock in the Fleet Street Case at pp 643H-644A).

(2) If leave is granted, when the matter comes to be argued substantively (second stage), the question can then be further considered substantively on whether the applicant has established sufficient interest in the matter in light of the full arguments and evidence.

7.  Moreover, the question of sufficient interest cannot be considered in the abstract, or as an isolated point, it must be taken together with the relevant legal and factual context[6].

8.  Bearing in mind these principles, I now turn to the present debate.

9.  As the way the matter is argued[7], the focus of the arguments between the parties on locus is in relation to the ground of the purported interference of the applicants’ right to freely receive information.

10.  The principal contentions are as follows.

11.  The CEIC’s fundamental challenge is that, as a matter of law, the applicants’ right to receive information is not engaged at all in the present case.  Mr Yu SC (leading Ms Eva Sit) for the CEIC contends that the various authorities relied on by him show that the constitutional right to receive information is only engaged if the relevant information that a complainant says he has been prevented from receiving (and thus his right[8] is so infringed) is already in existence.

12.  Ms Audrey Eu SC (leading Mr Pun) for the applicants of course says otherwise.  She has relied on first principles and referred this court to various other authorities to support her submissions. She has also submitted that, on a proper reading, the authorities relied on by Mr Yu do not show that the right to receive information must be related to information already in existence.  Ms Eu further emphasises that the “matter” in the intended judicial review is whether the licensing system is properly a “restriction” of this right “as prescribed by the law”.  Viewed in such context, the applicants must at least have prima facie sufficient interest in “the matter” and thus entitled to bring the judicial review.

13.  Mr Yu fairly accepts that the point (ie, whether the right to receive information is only engaged in relation to information already in existence) is an arguable one in light of the various authorities referred to by both parties.  However, he submits that as this is a pure question of law (even though it may be a difficult one) and does not depend on any question of facts or evidence, the court should decide it conclusively (instead of only looking at whether there is a prima facie case) at this leave stage with reference to the question of locus.

14.  With respect to Mr Yu, I do not agree.

15.  First, even if one is to accept (purely for the sake of arguments) Mr Yu’s submissions that the right to receive information is only engaged when there is already in existence the relevant information, I do not think Mr Yu is correct to say that, in the present case, the question of whether the applicants’ right to receive information is engaged does not depend on the facts.  As pointed by Ms Eu, HKTVN has in fact already produced a number of TV drama series that it intends to broadcast before its licence application is refused.  The fact and the extent of such already in existence productions must therefore be evidence relevant to the question of whether the applicants’ right is engaged (even in Mr Yu’s own case on what the law should be).  This question thus should and could only be fully and properly dealt with at the substantive hearing with all the evidence and full arguments (with reference to the evidence) put before the court.

16.  I therefore find that the applicants have shown a prima facie case of sufficient interest to apply for judicial review on this basis.

17.  Second and alternatively, I in any event do not accept Mr Yu’s contention that, if the question of locus involves only a pure question of law, then no matter how difficult and complicated that question is, the court should decide it conclusively at the leave stage.  As emphasised by all the Law Lords in the Fleet Street Case, the leave stage is there only to weed out obviously hopeless and meddlesome cases and should not be turned into a protracted and lengthy hearing on arguments.  Thus, unless a pure question of law involving locus is an obvious or simple one, at the leave stage the court should only consider whether the question is arguable to show a prima facie case of sufficient interest.

18.  In the present case, although I have looked at this question of law in some depth in light of the parties’ arguments and the various authorities they rely on, it is clearly not a simple or obvious one.  The applicants’ contentions on what the law should be (in contrast to Mr Yu’s submission) are plainly arguable.

19.  In the premises, even if this question of locus involves purely a question of law, I would still find that the applicants have shown a prima facie case of sufficient interest in the matter and therefore locus in making the application.

20.  Mr Yu at the last day of the hearing further submits that HKTVN has now sought to amend its Form 86 to also include a challenge of the Decision on the ground that its right to freedom of expression to impart information has been infringed.  Leading Counsel therefore says the applicants cannot show sufficient interest in the present applications as there is now clearly a better-placed challenger (ie, HKTVN) than the applicants to pursue the question of interference of the right to freedom of expression.

21.  With respect, again, I am not persuaded.

22.  At the first day of the hearing, this court asks Mr Yu the hypothetical question[9] of whether he accepts that HKTVN’s right to impart information is engaged in relation to its complaint about the refusal to grant it a domestic free TV licence, and if so, whether correspondingly the applicants’ right to receive information must also be engaged.  In answer, Mr Yu says he would accept that HKTVN’s right to impart information is engaged but he does not accept that the applicants’ right to receive is thereby also so engaged as the two rights are not necessarily reciprocal to each other.

23.  In light of Mr Yu’s above own position that the two rights are not necessarily corresponding to each other, I cannot accept Mr Yu’s submission that HKTVN must be a clearly better-placed challenger than the applicants to pursue the ground of judicial review based on the right to receive information.

24.  For the above reasons, I accept that the applicants have shown prima facie standing to apply for judicial review in relation to the interference of their right to freedom of expression ground. Further, this ground and the other grounds set out in the Amended Form 86 are in my view reasonably arguable.  I would therefore grant leave to the applicants to apply for judicial review on all these grounds[10], save and except those challenges which are based on or by reference to alleged infringements and restriction of HKTVN’s own right.

25.  I will also give liberty to apply for further directions relating to the further conduct of these judicial review applications.

26.  I further make an order nisi that costs of this hearing be in the cause of the judicial review and that the applicants’ own costs be taxed in accordance with legal aid regulations.  I understand from Ms Eu that there would only be one set of costs on her side although the hearing relates to both leave applications.  This costs order nisi shall become absolute 28 days from today unless any of the parties applies to vary it by summons.

27.  Lastly, I must also thank counsel for their helpful assistance.

[1]   HKTVN has also applied for judicial review against the Decision where leave has already been granted.  The substantive hearing of HKTVN’s judicial review is now fixed at the end of August 2014.

[2]   The applicants rely on the right to freedom of expression (which includes the freedom to receive information) as provided in Article 16 of the Hong Kong Bill of Right incorporating Article 19 of the ICCPR, and Articles 27 and 39 of the Basic Law.

[3]   Thus, in addition to seeking to quash the Decision, the applicants in the intended judicial review also ask for a declaration to the effect that the CEIC’s power to refuse a licence application under the licensing regime of the Broadcasting Ordinance is not a restriction as prescribed by the law.

[4]   See p 642F-H of the Fleet Street Case per Lord Diplock; de Smith’s Judicial Review (7^th ed) at paragraph 2-017 and Wade and Forsyth Administrative Law (10^th ed), pp 590-591.

[5]   (2007) 10 HKCFAR 676 at paragraphs10-17 per Li CJ.

[6]   The Fleet Street Case at 630D-E and 631C-D, per Lord Wilberforce; 653B per Lord Scarman.

[7]   The applicants say that they must at least have locus to challenge the Decision under the constitutional ground, and if that is shown, the court should grant leave to the applicants to challenge on all the grounds, as long as they are on merits reasonably arguable.  See also footnote 10 below for the cases cited in support of this latter proposition.

[8]    It is common ground that this right is in any event subject to any limitations as prescribed by the law.

[9]   At that time, HKTVN has not included in its judicial review application (where leave has already been given) a ground that its right to impart information has been infringed.

[10] See footnote 7 above and R (on the application of Kides) v South Cambridgeshire DC [2003] 1 P & CR 19, at paragraph 134 per Parker LJ; de Smith’s Judicial review, supra, at paragraph 2-009; Auburn, Moffett and Sharland, Judicial Review: Principles and Procedure at paragraph 24.20.