Cheung Tak Wing v Communications Authority
Court of First Instance
Constitutional and Administrative Law List No 60 of 2015
Thomas Au J
9 November 2018

Administrative law - Communications Authority - Director of Information Services Department - decisions directing TV and radio licensees to broadcast Government advertisements on electoral reform - whether unlawful - ban on broadcasting political advertisements by TV and radio licensees not applicable to "material supplied by Government" - whether exemption unconstitutional

Words and phrases - "announcements in the public interest"

Television (TV) and radio broadcasting services were respectively regulated under the Broadcasting Ordinance (Cap.562) (the BO) and the Telecommunications Ordinance (Cap.106). It was a standard condition of a TV or radio licence that the licensee shall broadcast materials, including "announcements in the public interest" (API), free of charge. Under r.12 of Sch.4 of the BO, a licensee shall not broadcast any advertisement of a "political nature", but under s.23(3), this prohibition did not apply to "material supplied by the Government" (the Exemption). Paragraph 28 of the Radio Code, published by the Communications Authority (R1), stated that "no advertisement of a political nature" shall be broadcast except with prior approval, but under para.5(b)(ii), the prohibition did not apply to API. Ahead of the selection of the Chief Executive (CE) in 2017, R1 and the Director of Information Services (R2) directed television and radio licensees to air Government advertisements, purportedly as API, promoting its electoral reform proposals (the Reform Proposals), including ones entitled "2017, Make it happen!" (the Impugned Announcements) from 22 April 2015 (the Decisions). X, a Hong Kong permanent resident and eligible voter, applied for judicial review of the Decisions, arguing that Rs had acted unlawfully. By the time of the hearing, the Legislative Council (LegCo) had rejected the motion presenting the Reform Proposals and broadcasting of the Impugned Announcements had ceased.

Held, dismissing the application, that:

  • Although X's application had become academic, the Court would still entertain it, given the challenges related to the legality and constitutionality of the current legislative scheme and Rs' duties and policies; the controversy over the broadcast of Government material might arise again; there might be another round of constitutional reforms, and advertisements, in future; and it concerned actual and not hypothetical facts (Chit Fai Motors v Commissioner for Transport [2004] 1 HKC 465 applied). (See para.59.)
  • The term "Announcements in the Public Interest" referred to announcements which satisfied one of three criteria, namely that they were: (a) in the public's interest to broadcast; or (b) related to such issues of public concern as health, safety, social welfare, legal obligations, availability of public resources and changes affecting traffic or other environmental factors; or (c) directly related to a government policy or operational objective (Criterion 3). (See paras.75, 78, 91.)
  • A Government policy embodied the general principles or objectives the Government had set to guide its administration of public affairs or its exercise of power in a specified area. There was no reason in principle to limit the meaning of government policy to only that which could be successfully implemented, whether or not with LegCo's endorsement (Leung Kwok Hung v President of the Legislative Council [2007] 1 HKLRD 387 considered). (See paras.97-101.)
  • The advancement of Hong Kong's constitutional development in the selection of the CE, together with the CE's constitutional duties and functions and the Government's role in amending the selection method constituted the relevant "government policy or operative objective". The Impugned Announcements in seeking to promote the Reform Proposals and the public's support were directly related to that policy and operational objectives. As such, they fell within the meaning of API under Criterion 3. (See para.102.)
  • There was no express statutory duty on R1 to vet whether materials supplied by the Government were API. Nor was there any implied pre-vetting duty for good policy and practical reasons. First, inter alia, the present regulatory regime was post-broadcast and complaints-driven. Second, a pre-censorship duty would risk stifling editorial independence and free expression and also impose an unworkable burden on R1 given the immense volume of materials broadcast daily. Third, R1 had a statutory duty to refer complaints concerning "material supplied for broadcasting by the Government and broadcast by a licensee" to the Government for handling. Fourth, and in any event, R1's role vis-à-vis Government supplied materials was only administrative and facilitative. This conclusion was supported by the relevant legislative history (T v Commissioner of Police (2014) 17 HKCFAR 593, R (Edison First Power Ltd) v Central Valuation Officer [2003] 4 All ER 209 applied). (See paras.109, 119-134.)
  • The Exemption was proportionally justified and not unconstitutional for breach of the right to equal treatment and freedom of expression. Given that the ban on political advertising on TV and radio was not an infringement of the right to freedom of expression, it was illogical that the Exemption could be a restriction and violation of that right (R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312, Animal Defenders International v United Kingdom (2013) 57 EHRR 21 applied). (See paras.140-143.)
  • X's right to equal treatment was not engaged since he was not seeking to air political advertisements but found himself banned from doing so. There was no basis to a constitutional challenge to the Exemption based on discrimination. (See paras.150-151.)
  • The Exemption did not constitute discrimination prohibited by art.25 of the Basic Law or art.22 of the Hong Kong Bills of Rights. The Government stood in a unique position relevantly different from Hong Kong residents so far as political advertising was concerned and this justified the differential treatment under the Exemption. The Government was non-partisan. TV and radio broadcasts were the most effective means of promoting and educating the public about its policies and legislative proposals and a facet of open and transparent government. Further, the prohibition did not prevent individuals and political parties from making use of other forms of media (Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 applied). (See paras.152-159.)

Application

This was an application for judicial review of the decisions of the first and second respondents to allow the government to broadcast television and radio advertisements relating to its electoral reform proposals for the selection of the Chief Executive. The facts are set out in the judgment.

Jurisdictions: 

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