CHO MAN KIT v. BROADCASTING AUTHORITY

HCAL 69/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 69 OF 2007

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Dates of Hearing : 18 and 19 February 2008

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J U D G M E N T

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Introduction

1. The applicant in this matter is gay, a fact known to him since puberty.  In 2006, the applicant appeared in a television programme called ‘Gay Lovers’.  It was a documentary-style programme which focused on the day-to-day lives of two gay couples, looking to the difficulties encountered in their lives, their fears and their aspirations.

2. The programme was produced by Radio Television Hong Kong (‘RTHK’), a department of Government.

3. After the broadcast of the programme, the Broadcasting Authority, the respondent in this matter, came to a determination that the content of the programme and the time of its broadcast had violated its code of practice.  That determination was published.

4. It is the applicant’s assertion that the determination of the Broadcasting Authority was contrary to law in that it placed an impermissible restraint on the freedom of expression of RTHK and the participants in the programme, that restraint being discriminatory in that it was based solely on the fact that the programme focused on the lives of people of a particular sexual orientation : homosexuals.

5. Included in other forms of relief to which I shall refer later, the applicant therefore seeks an order of certiorari to bring up and quash the determination of the Broadcasting Authority.

Freedom of expression

6. Freedom of speech, which includes freedom of expression; that is, the freedom to chose the manner in which a communication is made, is recognised by the Basic Law as a fundamental freedom.  In its 1986 judgment in Lingens v. Austria 8 E.H.R.R. 407, at 418, the European Court of Human Rights emphasised that freedom of speech —

“… constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment.  … it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.  Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.”

7. The right to freedom of speech, and the right to chose how best to express that right, is not however an unqualified right, one that can be exercised without restraint.  The right brings with it ‘special duties and responsibilities’ and may therefore be subject to restrictions.  However, art.16 of the Hong Kong Bill of Rights provides that such restrictions may not be such as to effectively destroy the right.  It provides that any restrictions —

“… shall only be such as are provided by law and are necessary —

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

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

8. In considering the extent of a restriction to freedom of speech, it is well settled that any such restriction must be narrowly interpreted : see HKSAR v. Ng Kung Siu and Another (1999) 2 HKCFAR 442, at 457.

9. Today, one of the most direct and effective channels of communication is by television broadcast.  The right to freedom of speech does not guarantee the right for anybody who wishes to make television broadcasts.  Those who are permitted to broadcast may have to comply with codes that set out appropriate standards of programme content.  Such codes, however, may not unlawfully restrict the right to freedom of speech and expression.

10. In the greater public interest, Hong Kong statute provides for a system of licensing to control broadcasting and further makes provision for ensuring that what is broadcast meets criteria designed to protect public morals and respect the rights of others.

11. The Broadcasting Authority (‘the Authority’) is established pursuant to s.3 of the Broadcasting Authority Ordinance, Cap.391.  Its functions and powers are set out in s.9 of the Ordinance and include the responsibility of securing ‘proper standards’ of television broadcasting not only in respect of technical performance but also in respect of programme content.

12. I understand the term ‘proper’ in this context to mean ‘apt’ or ‘suitable’.  The Authority, as I read it, is therefore under a statutory obligation to ensure that programmes that are broadcast meet suitable standards of taste and decency, standards that would be recognised as appropriate; that is, as suitable, by reasonable members of the Hong Kong community.

13. It is to be observed that the applicant does not challenge the constitutional validity of the statutory responsibility placed on the Authority under s.9 to ensure that the content of programmes meets ‘proper standards’.

14. Under the Broadcasting Ordinance, Cap.562, the Authority has the power to approve, issue and to enforce codes of practice in order to regulate the standard of programmes broadcast on television.

15. Codes of practice seek to ensure conformity with Hong Kong’s generally accepted standards of taste and decency.  They are therefore (of necessity) broad and somewhat imprecise in their language and demand a significantly subjective element of assessment.

16. All codes of practice, of course, to a greater or lesser degree, put a constraint on freedom of speech.  But it is to be further observed that the applicant does not challenge any of the provisions of the prevailing code of practice as being, of themselves, arbitrary or unreasonable.  The prevailing code is therefore accepted, for the purposes of this application, as a document which imposes constraints on freedom of expression that do not go further than the allowable restrictions contained in art.16 of the Hong Kong Bill of Rights.

17. In this regard, it should be noted that Hong Kong is not alone in regulating television broadcasting.  Television broadcasts come directly into the home and, as such, possess an immediate, almost intimate character.  In the United Kingdom, the Broadcasting Standards Commission, in its Code on Standards, has expressed the rationale in the following way :

“There is an implied contract between the viewer, the listener and the broadcaster about the terms of admission to the home.  The most frequent reason for viewers or listeners finding a particular item offensive is that it flouts their expectation of that contract – expectations about what sort of material should be broadcast at a certain time of day, on a particular channel and within a certain type of programme, or indeed whether it should be broadcast at all.”  [cited with approval by Lord Hoffmann in R (ProLife Alliance) v. BBC [2003] 2 WLR 1403, at 1410]

The prohibition against discrimination

18. A further fundamental freedom, recognised as such by the Basic Law is that all persons are equal before the law : art.25

19. Discrimination is the antithesis of equality.  As Lord Nicholls put it in his speech in Ghaidan v. Godin-Mendoza [2004] 2 AC 557, at 566, “it brings the law into disrepute.  It breeds resentment.  It fosters an inequality of outlook which is demeaning alike to those unfairly benefited and those unfairly prejudiced.”

20. The principle of equality before the law recognises that fundamental rights – such as freedom of speech – are to be enjoyed without any distinction by way of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” : art.1 of the Hong Kong Bill of Rights, Cap.383.

21. It is now recognised in our law that the prohibition against discrimination on the basis of sex refers not only to gender but also to sexual orientation : see, for example, Leung v. Secretary for Justice [2006] 4 HKLRD 211, per Ma CJHC at para.53.

22. ‘Discrimination’ occurs when there is a failure to treat all persons equally in circumstances where no reasonable distinction exists to justify that different treatment.

23. In L v. Austria (2003) 13 BHRC 594, para.44, the European Court of Human Rights defined ‘discrimination’ for the purposes of art.14 of the European Convention in the following manner :

“According to the court’s established case law, a difference in treatment is discriminatory … if it ‘has no objective and reasonable justification’, that is if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’.”

24. A restriction on freedom of speech, or a difference in treatment of persons who are otherwise entitled to equality of treatment, will be impermissible unless the restriction, or difference in treatment, is rationally connected to some legitimate purpose and the means used is no more than is necessary to accomplish that legitimate purpose.  The proportionality test, as it is called, strikes a proper balance between the interests of society on the one hand and the individual’s rights on the other : Leung Kwok Hung and Others v. HKSAR (2005) 8 HKCFAR 229, at 253.

A brief history of how the Authority’s determination came to be made

25. As I have said early, the programme ‘Gay Lovers’ was produced by RTHK.  The applicant agreed to appear on the programme, he said, because he wanted to show that the aspirations of he and his long-term partner were in essence no different from most heterosexual couples.

26. During the course of the programme – although it was by no means its raison d’etre – the applicant and two young women participants, who were in a long-lasting lesbian relationship, spoke of their hopes that one day the law in Hong Kong would be changed to recognise a civil union between gay couples.  Their stated aspirations were not entirely without foundation.  Recently, in a limited number of jurisdictions, the law has been changed to give legal recognition to same-sex relationships.  In the United Kingdom, for example, the Civil Partnership Act, which came into effect in late 2005, gives to same-sex couples rights and responsibilities similar to those that come with marriage.

27. When completed, the programme – about 25 minutes in length – was broadcast on television on two occasions.  At the commencement of each broadcast an advisory caption appeared, stating : ‘Please note that this programme involves homosexuality’.  The first broadcast was on 9 July 2006 on the Jade channel, the second was on 19 October 2006 on the Pearl channel.  On the first occasion the programme commenced at 7.35 in the evening, on the second occasion it commenced at 7.10 in the evening.

28. The broadcast of the programme attracted a number of complaints which were received by the Authority.

29. The Authority referred the matter to its Complaints Committee, a body established under s.10 of the Broadcasting Authority Ordinance.  The Complaints Committee was of the opinion that the programme had breached the prevailing code of practice on broadcasting standards and made recommendations to that effect which were adopted by the Authority.

30. The findings of the Complaints Committee (adopted by the Authority) were unequivocally based on the fact that the programme dealt with the subject of homosexuality, including same-sex marriage.

31. By way of sanction, RTHK, the producer of the programme, was ‘strongly advised’ to observe more closely the relevant provisions of the code of practice to prevent recurrence of similar lapses in future.  The details of the complaint and the findings in respect of it were published.

32. On behalf of the Authority, however, it is denied that its admonition of RTHK constituted an unjustified interference with rights to freedom of speech and expression or that it was based on considerations that were discriminatory.  It is argued that the determination, accurately construed, was based on two permissible findings; namely —

(i)  that, as the programme dealt with factual matters of some sensitivity, especially the issue of same-sex marriage, it failed to meet the requirement of impartiality, and,

(ii)  that the programme should, in any event, have been broadcast at a later hour when it was less likely that children without parental guidance would watch it.

33. The determination of the Broadcasting Authority engendered considerable controversy.  RTHK itself felt compelled to express its concern at the impact which the ruling may have on future editorial deliberations.

34. The Hong Kong Journalists Association expressed concern that the nature of the programme had been misunderstood.  It commented that the programme focused on the lives of homosexual people, intending to bring to light their concerns, not to advocate their views as such.  This, it was said, was a “common documentary technique, which would be destroyed if rigid adherence to impartiality was imposed.”

35. The Legislative Council’s Panel on Information, Technology and Broadcasting passed a motion urging the Broadcasting Authority to withdraw its ruling, stating the view that the ruling constituted discrimination based on the grounds of sexual orientation.

36. In response to the motion, in a press release dated 23 March 2007, the Broadcasting Authority said that, having made its ruling, it was now functus and therefore unable to revisit the ruling.

37. It was against this background that the applicant chose to bring proceedings for judicial review, challenging the lawfulness of the Broadcasting Authority’s determination.

38. The applicant’s challenge has been broken down into the following assertions :

(i)  That the ruling of the Authority constituted discrimination against persons solely on account of their sexual orientation; it discriminated with no reasonable and objective justification against persons who are homosexual and, in the result, was unlawful.

(ii)  That the ruling of the Authority unlawfully interfered with the constitutionally protected right of the applicant to freedom of speech and expression.

(iii)  That the ruling of the Authority was in any event a decision which no reasonable decision-maker could have reached and was therefore unreasonable in the public law sense.

(iv)  That, further or alternatively, the ruling of the Authority was based on a misinterpretation of the code of practice.

A preliminary issue : did the Authority act outside of its powers?

39. It is accepted that the Authority has no direct statutory power to determine whether a programme produced by Government does or does not infringe a code of practice approved and issued by it.  This is because Government is specifically exempted under the Broadcasting Authority Ordinance from any obligation to comply with the Authority’s codes of practice. 

40. Government, however, has entered into a memorandum of understanding with the Authority in terms of which it is agreed that, as with all other complaints, if there are complaints concerning a programme produced by RTHK, those complaints also may be determined by the Authority.

41. On behalf of the applicant, it is contended that such a memorandum of understanding is not capable of extending the Authority’s statutory powers and that, accordingly, in purporting to act under the memorandum, the Authority acted ultra vires.

42. The exemption contained in the Broadcasting Authority Ordinance no doubt recognises that there may be occasions when, in the greater public interest, it is necessary for Government; that is, RTHK, as a public broadcaster, to make broadcasts which do not comply with a relevant code of practice.  But that being said, RTHK is pledged to serve all audiences, including special interest groups, by providing “diversified radio, television and internet services that are distinctive and of high quality, in news and current affairs, arts, culture and education”. 

43. In respect of the great majority of programmes, therefore, it may be said that there is no reason why their content should not accord with, and be tested against, prevailing standards of taste and decency in the Hong Kong community.  Indeed, it may be said that the viewing public would expect Government, as a public broadcaster, to meet such standards unless there is good reason why not.

44. S.11(2) of the Broadcasting Authority Ordinance – section 11 dealing with the manner in which complaints from the public are to be referred to the Complaints Committee – directs only that the section shall not apply to ‘any script or material supplied for broadcasting by the Government’ and that complaints concerning such scripts or material are to be referred to the Government. 

45. Clearly, however, the Government of an open, democratic society such as Hong Kong should seek a system which permits consistent decision-making and makes for public confidence in the integrity and fairness of its conduct.  To that end, Government has accepted that the benchmark contained in the codes of practice issued by the Authority should constitute its own benchmark.  Put another way, it has chosen to accept criteria common to the industry as its own criteria.

46. In addition, Government has accepted that the body with the most experience in interpreting the codes of practice – namely the Authority’s own Complaints Committee – is the most suitable body to determine complaints alleging that programmes produced by it; that is, by RTHK, violate any prevailing code.

47. To this end, in 1999 Government entered into a revised memorandum of understanding with the Authority.

48. In terms of the memorandum, it was agreed on behalf of RTHK that, unless a prior exemption was obtained, its programmes would comply with the codes of practice approved and issued by the Authority.  It was further agreed that complaints that RTHK has breached a code of practice, unless considered to be trivial or frivolous, would be referred to the Authority’s Complaints Committee, that Committee having the power to determine whether any complaint against RTHK was, in part or whole, a justified complaint and to make recommendations accordingly to the Authority.  If the Authority adopted a recommendation that a complaint was justified, it was entitled to impose on RTHK ‘non-financial sanctions similar to those applicable to broadcasters’.  Significantly, para.8 made provision for publication of any complaint and its classification.

49. On behalf of the applicant, it is said that statutory bodies such as the Authority may not lawfully confer on themselves powers which they do not possess under statute by entering into agreements with third parties.  It is submitted that the Broadcasting Authority Ordinance – if not directly, at least in its intent and purpose – prohibits the Authority from referring any complaint concerning a programme produced by RTHK to the Complaints Committee.  It is, therefore, legally impermissible to attempt to override this prohibition by means of a memorandum of understanding.

50. In my judgment, however, s.11 of the Broadcasting Authority Ordinance does not contain a prohibition of the kind advocated.  It directs only that complaints concerning Government programmes must be referred to Government, leaving it open as to how the complaints are to be dealt with thereafter.  There is no statutory provision as to how Government itself is to deal with complaints passed to it by the Authority.  It is therefore entirely within the discretion of Government how it will deal with complaints concerning the content of programmes produced by it.

51. In my judgment, what the memorandum achieves is not an extension of the Authority’s statutory powers.  What the memorandum achieves is instead the creation of an independent administrative system – one based on consensus only – for dealing with complaints.  It is a system which is admittedly parallel to that contained in the Ordinance but it is, in a number of significant ways, different from it.  In this regard, for example —

(i)  It is open to RTHK to seek prior exemption from the Authority in respect of compliance with any code of practice.  The two Ordinances (the Broadcasting Authority and the Broadcasting Ordinances) make no such provision for licensees.

(ii)  The procedure in terms of which complaints are considered in the memorandum of understanding provides additional safeguards for RTHK which are not given to licensees in either of the two Ordinances.  In this regard, para.6 of the memorandum of understanding departs from the procedural steps outlined in s.11 of the Broadcasting Authority Ordinance in providing that :

“The Broadcasting Authority Secretariat shall inform RTHK, on a confidential basis, of the recommendations made by the Complaints Committee to the Broadcasting Authority concerning the complaint.  RTHK may, if it wishes, submit further representations, whether orally or in writing, to the Broadcasting Authority, before the Broadcasting Authority decides on the complaint.”

(iii)  Under the memorandum of understanding, the Authority has no power to impose a financial penalty on RTHK.

52. Our courts have recognised that public authorities are entitled to adopt policies or rules for their own guidance in exercising a statutory discretion conferred upon them.  Such policies or rules ensure that, without fettering discretion, consistent decisions are made which, applied reasonably, make for public confidence in the integrity and fairness of official conduct.  Equally, our courts have recognised that, when public authorities need to work in conjunction for the public good, an agreed outline of how they will do so – contained, for example, in memoranda of understanding – is permissible.

53. It is important, in my view, to underscore a point already made; namely, that Government itself is under no statutory constraint as to how it deals with complaints.  Nor is there any provision in the Broadcasting Authority Ordinance specifically prohibiting the Complaints Committee from in any way considering a complaint concerning the contents of a television programme produced by Government.  S.11 of the Broadcasting Authority Ordinance does not go that far. 

54. In this context, I do not see how it can be inconsistent with the provisions of the Ordinance for Government, in terms of an independent non-statutory administrative system —

(i)  to adopt standards common to the industry (i.e. the codes of practice), and

(ii)  to have those standards tested by a body it considers most suitable for the task (i.e. the Complaints Committee and the Authority).

55. In summary, I am satisfied that the findings made by the Authority in respect of the programme ‘Gay Lovers’ were made pursuant to the administrative scheme contained in the memorandum of understanding and not pursuant to any purported extension, direct or indirect, of its statutory powers.

The applicant’s standing

56. During the course of the hearing, the succinct submission was made by Teresa Cheng SC, leading counsel for the Authority, that the applicant had no standing nor sufficient interest in seeking any form of relief regarding the purpose and nature of the memorandum of understanding.

57. I have taken these submissions into account but, in my judgment, the applicant’s challenge going to the lawfulness of the Authority’s findings must, in the present case, incorporate the basis, statutory or otherwise, upon which the findings were made.

58. During the course of the hearing, it was suggested that the memorandum of understanding is a ‘private agreement’ relating solely to RTHK’s consensual submission to the Authority, a matter which does not concern the applicant.  I am, however, of the opinion that the memorandum of understanding – a document open to public inspection – does no more than set out the agreed manner in which Government, with the assistance of the Authority, will discharge its public responsibility of dealing with complaints concerning the production of its public broadcasts.

59. That being the case, the Authority also being a public body, it seems to me that, pursuant to an agreed understanding, what took place was, when considered in the round, simply, the discharge of a public function, one in respect of which the applicant had a real interest.

Viewing the programme

60. Before moving to consider the reasoning of the Authority in coming to its determination that RTHK had breached the prevailing code of practice, it should be mentioned that, during the course of the hearing, the programme itself was screened.  This was with the agreement of the parties.

61. I will shortly make certain observations concerning the contents of the programme.  I will do so, first, by way of statements of fact as to what was manifestly the nature of the programme and what was said and done by those portrayed in it.  I will do so, second, by way of expressing an opinion as to how I perceived certain aspects of the programme.

62. It is to be stressed, however, that I do so for the limited purpose only of having a better understanding of the nature of the subject matter of this judgment; that is, of the programme itself.  As I emphasised during the hearing, I do not sit as a tribunal determining the correctness of the Authority’s findings.  I sit only to enquire into the legality of the process by which it came to its findings.

63. In terms of the Broadcasting Authority Ordinance, the legislature has seen fit to give the responsibility of ascertaining what does, or does not, constitute ‘proper standards’ to the Authority, aided by a body of at least five persons; namely, the Complaints Committee.  The Committee is a body with expertise but does not seek to be an expert body.  It is clearly a body intended to reflect the reasonable views of the Hong Kong public.

64. The scheme created under the memorandum of understanding has the same aim; that is, to incorporate into its structure for the consistent and transparent determination of complaints the reasonable views of the Hong Kong public.

65. It is therefore for the Authority, as the primary decision-maker, to come to its determination for its own reasons, deciding for itself how best to weigh the various broad and often imprecise considerations that are contained in the prevailing code of practice.  In this regard, I would adopt what was said by Lord Hoffmann in his speech in R (Prolife Alliance) v. BBC, page 1422 :

“In this particular case, the decision to make all broadcasts subject to taste and decency requirements represents Parliament’s view that, as the Annan Committee put it, in paragraph 16.3, ‘public opinion cannot be totally disregarded in the pursuit of liberty’.  That seems to me an entirely proper decision for Parliament as representative of the people to take.”

66. But that being said, public opinion must be taken to be the opinion of reasonable members of the Hong Kong community, those who understand that in a democratic society a restriction of fundamental freedoms can never be justified by a consensus of opinion based on ‘prejudices, personal aversions and [dubious] rationalisations’.  In this regard, in Secretary for Justice v. Yau Yuk Lung and Another [2006] 4 HKLRD 196, at 202, our Court of Appeal cited with approval the following comments in respect of certain attitudes towards homosexuality by Professor R Dworken in his work, Taking Rights Seriously :

‘Even if it is true that most men think homosexuality an abominable vice and cannot tolerate its presence, it remains possible that this common opinion is a compound of prejudice (resting on the assumption that homosexuals are morally inferior creatures because they are effeminate), rationalisation (based on assumptions of fact so unsupported that they challenged the community’s own standards of rationality), and personal aversion (representing no conviction but merely blind hate rising from unacknowledged self-suspicion).  It remains possible that the ordinary man could produce no reasons for his view, but would simply parrot his neighbour who in turn parrots him, or that he would produce a reason which presupposes a general moral position he could not sincerely or consistently claim to hold.  If so, the principles of democracy we follow do not call for the enforcement of a consensus, for the belief that prejudices, personal aversions and rationalisations do not justify restricting another’s freedom, itself occupies a critical and fundamental position in our popular morality.’”

The Authority’s reasons

67. As I have said earlier, the Authority found that the broadcasting of ‘Gay Lovers’ had breached the prevailing code of practice on two bases; first, on the ground that, as a ‘factual programme’, it failed to meet the requirements of impartiality and, second, that it was unsuitable for broadcasting during ‘family viewing hours’.

68. Although, to an extent, the two findings are integral to each other they are nevertheless sufficiently independent to be dealt with in turn.

Failing to meet the requirement of impartiality

69. The prevailing code of practice provides that ‘news programmes’ and ‘factual programmes’ must be presented in a way that ensures the preservation of ‘due impartiality’ when their content deals with —

“…matters of public policy or controversial issues of public importance in Hong Kong.”

70. As to what constitutes ‘factual programmes’, the code of practice defines them as programmes which —

“… are based on material facts.  They can take the form of news, current affairs programmes, personal view programmes, documentaries and programmes adopting an investigative style of reporting.”

71. In short, somewhat surprisingly, there is a requirement that all programmes dealing with factual issues – effectively all non-fiction programmes – must preserve due impartiality if they deal with matters of ‘public policy’ or ‘controversial issues of public importance’.  I say that the requirement is somewhat surprising because, for example, not all matters of ‘public policy’ can, in any sensible way, allow for due impartiality if that term is to mean that ‘both sides of the story’ must always be put.  How are ‘both sides of the story’ to be put in an RTHK programme dealing with the fight against bird flu or child slavery?

72. In this very regard, RTHK’s Producers’ Guidelines makes the following observation which, in my view, must be entirely in accord with the dictates in our society of the protection of freedom of speech and freedom of expression :

“Due impartiality also does not require absolute neutrality on every issue of public concern or detachment from such fundamental principles as freedom, human rights, democracy, and the rule of law – principles which are essential to a just and open society.  We will be failing in our duty if in the attempt to upset no-one, to disturb no institution, we limit the comprehensiveness and open examination of issues and events.”

73. The concept of ‘impartiality’ is a broad concept.  In my judgment, a code of practice that requires all factual programmes dealing with matters of public policy or controversial public issues to be appropriately impartial may still comply with the constitutional requirement to uphold freedom of speech and expression if the term is given a broad and suitably equitable meaning.

74. The word ‘impartial’ encompasses, of course, the concept of being balanced, of not favouring one side more than another.  In certain circumstances, that may in a television programme demand the putting of both sides of the story.  But the word also means ‘unprejudiced, unbiased, fair’ : The Shorter Oxford Dictionary (6^th Ed).

75. Impartiality, therefore, may demand no more than that the subject matter is dealt with fairly; that no prejudice is shown – either for or against – matters that are portrayed.  Indeed, it may be said that such treatment is one of the hallmarks of documentary film-making.

76. In my judgment, in the broad language used, the prevailing code of practice recognises, or at least allows for, a presentation which is impartial simply because it is fair and not prejudiced either for or against the issues raised.  That, I believe, is provided for in the prevailing code of practice :

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

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

77. It will be seen that the word ‘due’ is given some importance, denoting what is appropriate in the circumstances.

78. Against this background, I come now to the actual reasoning of the Authority.  In a letter dated 22 January 2007, the Authority stated its reasons in the following manner :

“… the programme had presented the minority’s personal experiences and feelings in the form of a documentary.  The fact that only the merits of homosexual marriage were raised in the programme rendered the presentation one-sided.  The absence of different views on homosexual marriage had the effect of promoting the acceptance of homosexual marriage.  In this respect, the presentation was not impartial.  The Broadcasting Authority was of the view that, since RTHK had accepted that reflecting the views of homosexuals was sensitive and could incite controversy, it was all the more important that the programme should observe impartiality.”

79. It will be seen that central to the Authority’s reasoning is the issue of same-sex marriage and the finding that this particular issue was not dealt with in an impartial manner.  As the Authority said : “The absence of different views on homosexual marriage had the effect of promoting the acceptance of homosexual marriage.  In this respect, the presentation was not impartial.”

80. That reasoning can only be understood in one way; namely, that, no matter what the true nature of the programme, RTHK should have found some way of inserting the views of somebody that same-sex marriages were not a thing to be desired.

81. In this respect, let me say at the outset, and I say this as a finding of fact, that the programme was not about same-sex marriage.  It was not, in any way a ‘political’ programme attempting to advance any sort of public cause.  The issue of same-sex marriage was an incident in the programme; a material one, yes, but not in any way ‘promoted’ in the active and political sense that the word intends by either those in the programme or those who made it.

82. It is true that RTHK did not incorporate opposing points of view as to the issue of same-sex marriage.  But, I am satisfied that on any reasonable viewing, the programme manifestly was not designed as a vehicle to ‘advocate’ any particular point of view; that is, to argue for it and press home that argument.  The programme, more correctly, was a study of the human condition.  It was, as Mr Harris submitted, “moderate in tone and tasteful in presentation”.  There were no scenes of nudity or undue intimacy.

83. As a study of gay people involved in stable, long-term relationships, it naturally recorded matters that they considered important, such as the hope that one day their unions may receive some form of legal recognition.  But the issue, as I have said, was not ‘advocated’ by them.  People, by their natures, have aspirations.  Hunter-gatherers may express the hope that their lands will not be further encroached upon by farmers.  A daughter looking after her invalid mother at home may wish that the state would provide her with qualified assistance.  Such expressions, in any study of the human condition, are entirely organic to it and on any reasonable viewing are accepted as such.

84. I would add by way of a broad observation that invariably any portrayal of the human condition will reflect some sympathy with the subject.  Such sympathy, however, often no more really than an instinctive empathy, is not to be read as a form of active ‘promotion’ of any aspiration that arises in the course of the portrayal.

85. It is understandable, in my view, that RTHK itself – and others – should have been so concerned at the finding of the Authority, seeing it as a threat to well-established and entirely legitimate forms of documentary film-making; in short, as an impermissible restriction on the right to freedom of expression.

86. As I have said, I am satisfied that the programme did not in any way promote homosexual marriage and that the Authority, in so far as it believed it did, was plainly wrong.  RTHK did no more than faithfully record the fears, hopes, travails and aspirations of persons who happened to be gay.  It did so faithfully, in an unprejudiced manner.  In that sense, it is manifest, I think, that the presentation was ‘impartial’.

87. I am satisfied that the Authority came to its finding that the programme failed to be impartial and indeed ‘promoted’ a controversial issue for one reason and that is because the subject matter of the programme was homosexuality.  Would a similar decision have been reached as to impartiality if the programme had focused on hunter-gatherers or a daughter caring for her invalid mother at home and had spoken of the aspiration of those people?  The answer is plain enough.

88. In coming to its findings, the Authority, in respect of the suitability of the programme for viewing during family viewing hours, said the following :

“…homosexuality and the legalization of homosexual marriage were controversial issues which might be offensive and unsuitable for children to certain viewers in Hong Kong.”  [my emphasis]

89. This finding, in my judgment, demonstrates that the Authority – unwittingly no doubt – was prepared to come to a finding based on the belief by some viewers that homosexuality itself was ‘offensive’; in short, as I have spoken of earlier in para.66, it was prepared to justify a restriction on freedom of speech on a supposed consensus among certain people based on ‘prejudices, personal aversions and dubious rationalisations’.

90. The troubling issue, of course, is whether I have been drawn into a debate on the merits of the Authority’s finding.  During the course of the hearing I expressed this concern on a number of occasions.

91. But, while I have borne that concern in mind, I am satisfied that the Authority did not simply come to a different view on the merits.  I am satisfied that the Authority’s finding arose out of a misunderstanding of its own code of practice and that its failure has resulted in an impermissible restriction on the freedom of speech, a restriction founded materially on a discriminatory factor; namely, that homosexuality, as a form of sexual orientation, may be offensive to certain viewers.

92. In coming to my finding, I have borne in mind also that it is now settled law that any restriction on freedom of speech is to be narrowly interpreted.

The suitability of the programme for screening during family viewing hours

93. In its letter of 22 January 2007, the Authority spelt out its reasoning as to why, in its opinion, the programme was not suitable for broadcasting during ‘family viewing hours’ :

“Although there might not be anything frightening in the programme, the programme was unsuitable for broadcast within the Family Viewing Hours because children and young viewers watching the programme might have no knowledge of homosexuality and might be adversely affected by the partial contents of the programme if parental guidance was not provided.”

94. The code of practice defines ‘family viewing hours’ as being between 4 p.m. and 8.30 p.m.  The code directs that during this time nothing which is ‘unsuitable’ for children should be shown.  It is assumed, however, that after 8.30 p.m. parents ‘may reasonably be expected to share responsibility for what their children are permitted to watch’.

95. The code therefore takes into account that in Hong Kong, between the hours of 4 p.m. and 8.30 p.m. children may well be watching television without the benefit of parental guidance.

96. ‘Children’ are not themselves defined in the code.  However, it warns that ‘children covers a wide age range and that it is therefore necessary for a licensee —

“… to exercise judgement on the capacity of children in different age groups in coping with the depiction and treatment of material which may not be suitable for them.”  [my emphasis]

97. By way of general guidance in respect of all types of programmes, the code states that :

“As a matter of principle, programmes should always be scheduled with an awareness of the likely audience in mind.  Great care and sensitivity should be exercised to avoid shocking or offending the audience.”

98. In respect of children, violence is not the only reason why a programme may be considered unsuitable.  The code states :

“Other factors include bad language, innuendo, sex and nudity scenes of extreme distress, the deliberate use of horror for its own sake, morbid sound effects intended to anticipate or simulate death or injury, the use of the supernatural or superstition so as to arouse anxiety or fear, torture, cruelty to children or animals, any matter likely to lead to hysteria, nightmares or other undesirable emotional disturbances in children and the use of crude slang.”  [my emphasis]

99. In my judgment, whatever the deficiencies in law in its first finding, the Authority is on much firmer ground in coming to its determination that the programme was not suitable for broadcasting during family viewing hours, that decision resting essentially, as I see it, on the basis that young viewers without sufficient maturity to understand the programme may well be watching.

100. In this regard, it is plain, I think, that the protection of the sensibilities of young viewers is a permissible restriction on freedom of speech and expression.

101. It should also be said that the Authority, in terms of its own code, has the responsibility to ensure that all programmes, no matter what their content, are suitable for viewing by young viewers.

102. During the course of submissions, Mr Paul Harris SC, leading counsel for the applicant, said that the finding that the programme was unsuitable for watching by young viewers was inconsistent with the provision that school children be taught about homosexuality as part of the compulsory Hong Kong schools sex programme.  He went on to say that it was, in any event, unrealistic to suggest that modern children are so vunerable that they should not see the programme.  But these assertions, it seems to me, go to the merits of the Authority’s findings not to their lawfulness.  It is for the Authority to take into account such factors as sex education in our schools and the sophistication, or lack of it, of young viewers in Hong Kong.

103. The fact that the Authority may have been of the view that homosexuality may be offensive to certain viewers, does not in my view detract from a decision lawfully reached that the programme was not suitable for viewing by young persons.

104. It is apparent to me that the Authority’s essential reasoning was to the effect that issues of homosexuality and homosexual marriage were issues which might not be known to young viewers and that, to avoid any concern or misunderstanding which might have an adverse affect on young viewers, the programme should only have been shown at a time when they could be expected to have the benefit of parental guidance.

105. What must be remembered is that the code of practice issues a clear caveat in respect of ‘sex and nudity’; sex, that is, in all its forms, heterosexual as well as homosexual.  The reason is plain enough.  The understanding of sexual matters in a way that avoids confusion, concern, even prejudice, demands a certain maturity and ideally, so it may be said, the guidance of parents or teachers.

106. When I speak of ‘prejudice’, it seems to me that presentation to immature viewers who have no relevant knowledge of matters going to sex and sexual attraction – in all its permissible forms – may in some cases arouse emotions which are hostile, emotions even of confused revulsion, emotions which embed prejudice rather than remove it.

107. In this respect, it must be remembered that the code of practice accepts that children of widely varying ages may be watching television during family viewing hours.

108. For the reasons given, therefore, I have come to the conclusion that the Authority’s finding, whatever its merits, was a lawful finding, one that was open to a reasonable decision-maker.

Having published its findings, was the Authority able to reconsider them?

109. As I have said earlier in this judgment, when the Authority’s admonition of RTHK for its violation of the code of practice was published, it aroused controversy.  This included a motion passed by the Legislative Council’s Panel on Information, Technology and Broadcasting that the Authority’s findings constituted ‘discrimination on the ground of sexual orientation’ and should be withdrawn.  In answer, in a press release, the Authority said that, having come to its findings, it was now functus and was “wholly without power as a matter of law to rescind its decision”.

110. It is the applicant’s contention that this response by the Authority is itself wrong in law.  It is contended that, under s.46 of the Interpretation and General Clauses Ordinance, Cap.1, where authority is conferred by any Ordinance to make any order, notice or declaration, that authority includes the power to amend or withdraw it.

111. In response, it is argued on behalf of the Authority that the powers conferred by s.46 only come into effect if no contrary intention is shown in the relevant statute.  In this regard, s.26 of the Broadcasting Authority Ordinance sets out a procedure in terms of which a licensee aggrieved by a decision of the Authority may appeal by way of petition to the Chief Executive in Council.  In short, a contrary intention is shown in the Ordinance.

112. For the reasons given earlier, I am satisfied that the decision of the Authority was made pursuant to the scheme contained in the memorandum of understanding and was not made pursuant to any purported extension, direct or indirect of its statutory powers.  While that scheme is in many respects a reflection of the statutory scheme, it is different in a number of material respects and is, as I have found, an independent administrative scheme based on consensus only. 

113. The memorandum of understanding does not contain a provision enabling RTHK, if it is aggrieved by a final decision of the Authority, to appeal that decision.  The memorandum of understanding does provide that a provisional decision by the Authority will be communicated in confidence to RTHK which will then have an opportunity to respond.  But that, while it ensures a degree of procedural fairness, cannot constitute the equivalent of any appeal process. 

114. That being the case, the memorandum of understanding, in not providing for any form of appeal against (or review of) a final decision, no matter how informal the process, does not operate, in my opinion, to render a determination of the Authority a ‘final’ determination in the sense that it cannot be revisited. 

115. I am satisfied that the Authority does have the power to reconsider determinations made by it under the memorandum of understanding.  When it deems it appropriate to do so, is a matter for it, having regard to the cogency of any argument that it should, or should not, do so.

Conclusions

116. For the reasons given in this judgment, I make the following orders :

(i)  that there will be an order of certiorari to bring up and quash the determination of the Authority made pursuant to the memorandum of understanding;

(ii)  that there will be a declaratory order that the decision of the Authority that it had no power to revisit its determination and, if appropriate, to change it, was wrong in law;

(iii)  that there will be an order nisi awarding costs to the applicant, such costs to be made final in 14 days if no application is made for a different order before that date.