95. It is thus Mr Wong’s own evidence that what he would have wanted to put additionally and differently in the original application had he known about the gradual and orderly approach, he had effectively managed to do so in substance by stating them in the written response, other than what he has set out at paragraph 10(b) of the affirmation. That is about the possibility of inviting more senior and experienced management and expert personnel to join its management team. However, this element is irrelevant for the purpose of determining if there is any procedural unfairness leading to the Decision, as the Decision was not based on any purported relative weakness in HKTVN’s management team.96. In the premises, I am not satisfied that there is any procedural unfairness in not allowing HKTVN to amend its application.[25]5.39.217.76# I' f& K3 g1 Y2 S% `1 b
C3.3 Failure to give reasons# c: ]! ^6 X/ L4 ]* M$ D2 H
97. I can deal with this ground shortly.
m5 F R# u6 V7 Y/ o$ b, l5.39.217.7698. Under this ground, HKTVN complains that the CEIC has failed to give adequate reasons for the Decision.tvb now,tvbnow,bttvb3 r0 } ~$ Z& L& H# D/ a1 l
99. Although accepting that the CEIC is generally not required to give reasons for his decision, HKTVN submits that common law principles on fairness in the present circumstances require that reasons be given for the Decision.[26]
v7 E( @" \2 o公仔箱論壇100. HKTVN says the following circumstances of the present case require the CEIC as a matter of fairness to give reasons for the Decision:公仔箱論壇% g o9 R* x9 F1 c( T* h8 w8 f
(1) The fundamental and important matters at stake to be determined by the Decision which involves not only the private commercial right of a company to obtain a FTV licence, but also an incursion into its freedom of expression, and the entitlement of the Hong Kong public as a whole to enjoy FTV programming from an additional FTV operator.
) u: d) V! W- h5.39.217.76(2) The fact that the CEIC decided to depart from the recommendation made by the Authority under section 9(2) of the BO which contains a clear, detailed and well‑articulated justification as to why all three FTV licences should be granted; and the fact that the former CE has expressly stated that it would only be in special cases where the CEIC would so depart. However, this is not a special case where it could be said the CEIC adopted the Authority’s recommendation or implicitly endorsed the reasoning of the Authority (in which case, the reasons would be implicit).
, B0 a+ {) g$ {) C(3) HKTVN’s licence application has been rejected apparently because it has been categorized as the weakest of the applicants, when this was not the finding of the Authority, and when the policy against which the application was made rendered any such point (even if correct) irrelevant.
0 J' F9 O8 s. b8 U) F公仔箱論壇(4) This is a case which involves a substantive legitimate expectation enjoyed by HKTVN, and since this was not given effect to, fairness requires an explanation as to why this was not done.
6 i4 l" X( S5 F) e1 b(5) The CEIC knew that HKTVN had invested heavily for the purposes of obtaining the FTV licence and that its decision to reject the application would have not only a highly damaging financial impact on HKTVN, but also on its staff who were made redundant.
8 P7 g( Z' a% n6 H5.39.217.76(6) The inordinate delay which had taken place in the decision‑making process and, in particular, the lack of any explanation as to why the so‑called “gradual and orderly approach” was formulated so late in the application process, and this “eleventh hour” approach cries out for an explanation.
# C, X ?2 Z1 q1 D v& \( w9 t; t5.39.217.76(7) The repeated insistence by the Government that it had not changed its own policy when, in fact, it acted contrary to it.公仔箱論壇9 o& N" Y5 u6 Y' e% J! q
101. There is some force in HKTVN’s above submissions. However, the CEIC has by now filed evidence by way of affidavit and the relevant ExCo minutes (see above) to explain how he had come to make the Decision. The ExCo minutes are contemporaneous records of the reasons underlying the Decision. There is no reason not to accept them.[27] Mr Coleman also has not (rightly so I think) asked this court to treat these reasons as post justification.
' X2 A$ @* i# b1 |. l- D102. In the circumstances, given that the evidence now filed in this judicial review enables HKTVN to lead a fully informed inquiry into the Decision, even if (without deciding that) the CEIC did have a duty to give reasons in the circumstances of the present case, this court will not in the exercise of discretion quash the Decision on the ground of inadequacy of reasons.[28] I will therefore also refuse this ground as a basis for judicial review.
6 _+ T7 W: |* ]- GC3.4. Flawed reliance on the Consultant’s reports
8 O" d7 W& S- q8 F1 k1 mTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。103. HKTVN submits that the CEIC’s reliance on the Consultant’s reports is flawed because:公仔箱論壇5 A% X0 B' y Q* \2 H
(1) The last of those reports was prepared in April 2011, which was before the very substantial disposal (“VSD”) of CTI (HKTVN’s predecessor)’s communications business which was effected on 31 March 2012. This would have further strengthened HKTVN’s financial capability and position, of which the Consultant could not have taken into account in its reports in assessing and evaluating HKTVN’s sustainability and relative competitiveness. However, the CEIC failed to take reasonable steps to equip himself with the necessary independent and expert information from the Consultant to enable him to properly assess the favourable impact of the VSD on HKTVN’s application.
# S" T4 b' A5 T& X2 o. M6 |- W# A2 ^( X(2) HKTVN as part of its written response to the CEDB on 4 June and 18 June 2013 referred to the independent analysis by PricewaterhouseCoppers (“PwC”) to suggest that the overall advertising market of the FTV market had been grossly underestimated by the Consultant in the reports. There is nothing to suggest that the CEIC took into account PwC’s independent analysis or anything showing that the CEIC even appreciated the difference in figures and their significance for HKTVN’s application.2 T% V3 E$ s$ n( l- W, z
(3) The Consultant has confirmed in evidence that the reports were prepared under its understanding of the Policy of no pre‑set limit, and it would have prepared the reports differently had it been informed that the relevant inquiry to be answered was which of the three applications were to be granted a FTV licence or the gradual and orderly approach.
$ M, j8 O/ e {104. HKTVN further says, if the CEIC could properly rely on the reports, then the Decision was inconsistent and illogical with the CEIC’s apparent main concern on sustainability, since HKTVN was ranked second in the reports in terms of overall competitiveness. It is contended that the CEIC’s treating of “programming strategy and capability” with the most important weight among the four criteria could not have rendered the Decision one consistent with the main concern on “sustainability” given this overall competitiveness ranking.tvb now,tvbnow,bttvb4 ~+ j- d, z1 \ X% [& |- J( g
105. I am unable to accept these contentions for the following reasons.公仔箱論壇* M' H7 J3 x1 ?& j
106. First, I accept Mr Yu’s submissions that although the reports could not take into account the VSD:5.39.217.765 X" C6 M1 r* O7 U6 u
(1) Both HKTVN and the Authority were invited to and did provide their comments on the VSD to the CEIC and such comments were available to the CEIC.tvb now,tvbnow,bttvb& ]5 a4 e. {6 {/ Y! [1 C
(2) The VSD would not have affected the Consultant’s assessment on the overall sustainability of the market.
2 s+ {7 A$ t; B* R' B R5.39.217.76(3) As for the HKTVN’s relative competitiveness, the CEIC did not rely on the Consultant’s overall ranking made in the report, but made his own assessment on the basis and for the reasons as I have summarised above.tvb now,tvbnow,bttvb6 |5 h5 s" F4 X
107. Second, HKTVN’s submissions on the growth of advertising revenues for the FTV market had been summarised and placed before the CEIC when he made the Decision. He was thus equipped with the relevant information, including contrasting information, in this respect in making the Decision. As rightly submitted by Mr Yu, the estimate on the overall advertising growth is not a matter of incontrovertible fact but a matter of prediction, and so even if the CEIC had preferred the Consultant’s view instead of HKTVN’s, that would still be within the range of reasonable choices open to the CEIC.
6 P; X, T: h3 U! W& j+ v8 Q4 h公仔箱論壇108. Finally, insofar as the complaint that the CEIC could not properly rely on the reports because (a) the Consultant would have prepared the reports differently if it had been informed of the departure from the Policy; and (b) there is an inconsistency between the claimed concern on sustainability and the overall ranking of HKTVN’s competiveness in the reports, I do not think it is now necessary or appropriate for me to decide on these grounds. This is so as I have concluded that the Decision was made in departure from the Policy and thus should be quashed and remitted back to the CEIC for reconsideration in light of the Policy. In the premises, the Consultant’s said observation becomes irrelevant, and the CEIC would in any event have to look at the matters again in the exercise of his discretion in the reconsideration.5.39.217.76. t& B9 n' t/ u* U4 [3 W+ |
109. I would also dismiss this ground for judicial review.
! ?! N5 F7 t, F. |, mtvb now,tvbnow,bttvbC4. Constitutional challenge groundtvb now,tvbnow,bttvb7 V, o- Y$ ~. I; w6 t* a; S, o+ m
110. Article 27 of the Basic Law guarantees that Hong Kong residents shall have, among others, freedom of speech, of the press, and of publication.tvb now,tvbnow,bttvb7 V! m) `* `# I3 o3 y
111. Article 39 of the Basic Law also provides that:
# ]+ z+ M! f2 V4 aTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。“The provisions of the [International Covenant on Civil and Political Rights (‘the ICCPR’)]… as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.
) L- m( [+ |# t) v1 oTVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”
. E, H+ l$ m3 j( a1 c112. Article 16 of the Bill of Rights (“BOR”), in incorporating Article 19 of the ICCPR, provides relevantly that:
) e9 T8 I3 P1 K- |; w& G& ktvb now,tvbnow,bttvb“… (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.5.39.217.76! j. v+ v6 ^+ D. w3 v7 D- D& r6 o
(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary —
9 \7 G" O1 _/ h/ f4 H5.39.217.76(a) for respect of the rights or reputations of others; or
8 W; g) w: Z$ g ?/ c- M# `# g(b) for the protection of national security or of public order (ordre public), or of public health or morals.”
% J8 @+ R7 E0 b) X113. Thus, under these provisions of the Basic Law and BOR, freedom of expression can only be restricted “as prescribed by law” or “as provided by law” and for the purposes set out at Article 19(3) of the ICCPR.tvb now,tvbnow,bttvb, M1 S6 e8 q Z0 t
114. The authorities show that the expressions “prescribed by law” used in Article 39(2) of the Basic Law and “provided by law” used in the BOR mandate the principle of legal certainty.[29] Moreover, for that purpose and in relation to restrictions on fundamental rights, it has been said that a law which confers discretionary power on public officials must give an adequate indication of the scope of that discretion,[30] and the law should be accessible to the persons concerned and formulated with sufficient precision to enable them to foresee to a degree that is reasonable in the circumstances the consequences which a given action may entail.[31]2 g% C" P/ e8 f- n8 Q, g
115. HKTVN contends that the Decision is unconstitutional because:5.39.217.76/ L* p! n. B5 F" X I- o
(1) The restriction imposed through the CEIC’s exercise of discretion under the statutory licensing system lacks the requisite legal certainty and thus is not one “as prescribed by law” or “provided by law”.
# x# T' S4 B# E/ j# Y. l6 ^公仔箱論壇(2) Further, the CEIC has failed to establish that the restriction on HKTVN’s freedom of expression falls within the scope of specific purposes permitted under Article 16(3) of the BOR.
6 k% Y( K7 N/ t% a) K8 \tvb now,tvbnow,bttvb(3) The restriction is in any event invalid as it did not satisfy the proportionality test for the lack of a legitimate purpose or it is disproportionate as the restriction went further than necessary to achieve the alleged objective of the sustainability of the FTV market.
$ I) o/ L: p4 S0 h/ k/ v& ]7 `2 Etvb now,tvbnow,bttvb116. I will look at these issues respectively.公仔箱論壇4 R# Y. y! C' C9 ~7 Y' f R$ t
C4.1 Is the restriction prescribed by law
0 f: m4 W( Z, W# i. W117. The CEIC (through Mr Yu) fairly accepts that the right to freedom of expression is engaged in this case as the publication through the means of airwave through FTV broadcasting is restricted by the need to apply for licence under the BO. Further, under the licensing system, whether a FTV licence would be granted or not is subject to the discretion conferred by the BO on the CEIC.
4 p, l0 o5 n5 w8 xtvb now,tvbnow,bttvb118. It is HKTVN’s contentions that there is no or insufficient publicly accessible guidance on the scope of the discretion that the CEIC can exercise under section 10 of the BO to determine whether to grant or refuse a FTV licence. In other words, there is no way for the public or an applicant, such as HKTVN, to properly foresee what criteria and consideration the CEIC would or may have in considering exercising that discretion. This is so as:公仔箱論壇0 V: i5 e+ L: ^& F3 f9 V
(1) The statutory provisions give the CEIC an absolute and wide discretion but do not set out, other than the Authority’s recommendation made pursuant to section 9(2), the criteria, factors or considerations which the CEIC is required or entitled to take into account in the exercise of that discretion.
: W, W( }5 ~8 f(2) Although the Guidance Note provides at paragraph 5.1 for the criteria for assessing a FTV licence application, it is also expressly stated that the CEIC is not bound to accept the Authority’s recommendations (made based on the evaluation of an application by, among others, reference to those criteria). Moreover, it also does not require the CEIC to take into account these factors in the exercise of his own discretion nor does it preclude the CEIC from taking into account other considerations not set out in the Guidance Note. It also does not set out the circumstances in which the CEIC may depart from the Authority’s recommendation.
" e; f$ C8 U9 O5.39.217.76(3) There are also no policy guidelines or other documents setting out the criteria, factors or considerations to be taken into account when the CEIC exercises his discretion under sections 8(1) and 10(1).
5 K" l: ~2 t! |- Htvb now,tvbnow,bttvb(4) In the premises, there is no way for persons concerned, including HKTVN, to reasonably foresee the manner in which the CEIC’s discretion could be exercised in a particular case. The exercise of that discretion is thus left unfettered and arbitrary.
; h' V' N. }$ E5.39.217.76119. Mr Coleman further submits that the CEIC’s position that he does not have to give reasons for the relevant decision (which is also emphasised in the Guidance Note) highlights the said arbitrariness of the exercise of discretion under section 10. In support, counsel essentially relies on the authorities of Meltex, supra, and Glas Nadezhda EOOD, supra.
3 t v6 _+ b9 o ?6 p/ `. `TVBNOW 含有熱門話題，最新最快電視，軟體，遊戲，電影，動漫及日常生活及興趣交流等資訊。120. With respect to Mr Coleman, I do not agree.
' w* Y' B @- E6 b4 S121. In considering whether a subject restriction is “prescribed by law”, the following principles as submitted by Mr Yu are also relevant:
* L# M {; {3 J% J* O(1) The law must be adequately accessible, ie, the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case.
; [1 \7 P1 l5 U" n$ v8 z! Dtvb now,tvbnow,bttvb(2) The “law” includes statute law and unwritten law (including common law),{C}{C}{C}{C}{C}{C}{C}[32]{C}{C}{C}{C}{C}{C}{C} and the court can look at relevant non‑statutory documents, directives and guidelines that are accessible to the parties or public in assessing whether the criterion of foreseeability is satisfied.[33]
+ I. a5 K4 d3 Utvb now,tvbnow,bttvb(3) It must be formulated with sufficient precision to enable the citizen to regulate his conduct — he must be able, if need be with appropriate advice, to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.[34]5.39.217.766 f& d. X+ K M4 F6 }
(4) However, sufficient precision is not to be equated with absolute certainty. It is recognized that given the need of the law to keep pace with changing circumstances, laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice and require clarification by the courts: see Sunday Times at paragraph 49; Mo Yuk Ping at paragraphs 61‑62. The fact that doctrine issues may remain and require to be resolved by the court in an appropriate case merely provides an illustration of the common law at work. The mere existence of debatable issues does not make the law uncertain: see Winnie Lo v HKSAR at paragraph 84. A law that confers a discretion is not necessarily in itself inconsistent with the requirement: see Goodwin v United Kingdom (1996) 22 EHRR 123, paragraph 31.
) z: g5 U0 ~- F' R- |4 a4 U5.39.217.76(5) Further, where the issue is the exercise of a discretionary power conferred by statute, the degree of precision required of the law will also be adjusted, depending on the particular subject matter of the discretion (Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229at paragraph 29, p 251I), the content of the instrument in question, the field it is designed to cover, and the number and status of those to whom it is addressed. The law needs only to be formulated with such sufficient precision to enable the individual, with appropriate advice when necessary, to regulate his conduct (Hasan v Bulgaria (2002) 34 EHHR 55 at paragraph 84).
g; \7 U! A% ]7 j! N: k/ u2 `公仔箱論壇(6) Ultimately, the question is answered by whether the law is able to enunciate some boundaries which create an area of risk. There will be conduct that fall along the boundaries of the area of risk for which no definite prediction or answer can be given in advance; but the identification of the area of risk will provide guidance to citizens and that suffices for the purpose of certainty: see Sunday Times at paragraph 52; R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606, paragraph 62.9 S4 V4 K9 Q- k6 ^/ x& w x" k
122. Moreover, in determining whether the said foreseeability of boundaries of risk can be achieved in the context of broadcasting, the court should also take into account the following considerations:
8 S' s( [* X; F$ w(1) The fact that broadcasting is a highly technical and complex area, and the applicants are expected to have the necessary degree of expertise, sophistication and ability to understand and seek to inform themselves fully of the requirements, if necessary with the help of advisers: see Groppera Radio AG v Switzerland (1990) 12 EHRR 321, paragraph 68;公仔箱論壇( r/ E7 e1 _+ L6 J: C
(2) As a result, even if the licensing criteria contain requirements which are not very clear and are subject to a subjective assessment (for example, such as “societal function”), that could still be regarded as sufficiently precise when viewed under that context: Glas Nadezhda EOOD, supra, at paragraphs 48‑49; and
. d& g* X/ g2 L& T( Y- k5.39.217.76(3) Given the pervasiveness and importance of television broadcast, public or societal interest is necessarily engaged and relevant, and such interest is by nature incapable of precise definition.
! y. H' u, K# E. Z- n+ w123. Bearing these principles in mind, I accept Mr Yu’s submissions that, in the present case, the “prescribed by law” requirement is satisfied by considering the provisions in the BO together with the Guidance Note. This is so as the scope of statutory discretion can reasonably be worked out with sufficient precision by reference to the following (which are all accessible to the relevant parties):tvb now,tvbnow,bttvb% z3 l% W' d9 x! l
(1) The objectives of the BO,[35] which are: (a) wider programming choice to cater for diversified tastes and interest in the community; (b) encouraging investment, innovation and technology transfer in the broadcasting industry; (c) ensuring fair and effective competition in the provision of services; (d) ensuring that broadcasting services provided are up to the expectations and do not offend the tastes and decency of the community; and (e) promoting the development of Hong Kong as a regional broadcasting and communications hub. They provide the boundaries to and limit the exercise of power under sections 8(1) and 10(1).
2 G" o% B& d9 _7 i& t$ h公仔箱論壇(2) The underlying context of the BO which is public interest. This is so as (a) the subject matter of FTV broadcast affects almost everyone in Hong Kong; (b) the CEIC (being the highest executive authority in Hong Kong) is positioned as the licensing authority; and (c) section 10(4) of the BO refers to public interest. Read in this context, public interest therefore provides further indicia and delimitation as to how the discretion is to be exercised, and is the governing consideration in the exercise.
, M! x& B& t1 L+ b$ t5.39.217.76(3) The various requirements set out under other statutory provisions in the BO (such as residence of company applicant and its directors, the requirement of “fit and proper person”) which would also provide guidance on the scope of the discretion.
+ g5 F5 R3 Q0 { c( u! M(4) The assessment criteria set out in the Guidance Note, which the CEIC should take into account as relevant considerations. In this regard:1 x. B, a& F+ @" l' A
(a) Although the Guidance Note does not bind the CEIC, the criteria set out therein are still relevant to the exercise of power, since those criteria are formulated by the Authority for the purpose of preparing its recommendation which the Authority is required to place before the CEIC and the CEIC is required to consider them.[36]
# Z6 @( _. n" t9 @4 b, Q' S- |tvb now,tvbnow,bttvb(b) That the Guidance Note is not statutory does not affect its ability to be counted towards the foreseeability requirement.1 ]6 M L/ ~9 f6 ?: [7 f3 R
(c) Similarly, the fact that the Guidance Note is non‑binding also does not undermine the relevance and role it plays towards setting the framework, with which a zone of risk can be identified. Although it is not binding, the Guidance Note criteria are still relevant considerations that the CEIC would have to take into account in making a decision under sections 8(1) and 10(1) in the absence of cogent reasons not to: cf R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148, paragraph 21.
" c5 X e' d1 s- e5 h124. The above materials therefore provide the basis upon which the court can interpret sections 8(1) and 10(1) and determine whether the exercise of power is within or outwith the scope conferred by the statute. By the same token, a lawyer conversant in the principles of statutory interpretation would also be able to so advise his clients.7 [0 s6 Q A8 t; b# F
125. Thus, on the basis of the above materials, a reasonably competent lawyer would have advised HKTVN that its FTV licence application must address all the requirements set out in the BO and the Guidance Note to meet the minimum requirements. Further, such lawyer would also have been able to advise HKTVN that even if HKTVN had satisfied all the statutory and Guidance Note requirements, the CEIC still has a discretion to decide whether to grant it the licence, but that discretion has to be exercised in accordance with the purposes of the BO and public interest. Of course, the lawyer will not be able to advise HKTVN that it is bound to succeed or fail in its application, but that is (as stated above) not the test for precision. All that is required is the ability to identify some area of risk, so that the applicant will be able to plan and adjust its conduct accordingly.5.39.217.76" g* B) j4 H/ L1 X' K7 W
126. Mr Coleman refers this court to Leung Kwok Hung, supra, at paragraphs 75‑78 to say that “public interest” is too vague as a concept to sufficiently guide the scope of a statutory discretion to make a relevant restriction achieving the necessary legal certainty. If Mr Coleman is saying that Leung Kwok Hung is authority to say as a matter of principle, “public interest” can never be a sufficient element as guidance to the exercise of discretion, I am unable to accept that. Whether sufficient legal certainty is achieved in relation to a subject statutory discretion must be determined in the context of the matter. In Leung Kwok Hung, the CFA was saying that the reliance on “public order” (order public) (which is in any event not the same in meaning as public interest) as a purpose by the Commissioner of Police to guide the exercise the relevant statutory discretion to restrict the right of peaceful assembly does not satisfy the constitutional requirement of “prescribed by law”. This is so as it (order public) being an abstract concept used at the constitutional level (taken from the ICCPR) is by itself alone inappropriate as a basis to gauge the actual exercise of discretion at the statutory level in the circumstances and context of that case.( o* Y6 y4 J5 A# N9 O7 E+ b
127. This is very different from what we are looking at above and in the present case. The element of “public interest” in the present context is to be looked at in the area of FTV market and prescribed by the related statutory objectives. Moreover, the exercise of the CEIC’s discretion is further defined by the other indicia and elements outlined in the Guidance Note and provided in the BO, and not just “public interest”. These taken together provide adequate indication as to the area of risks. |
發表於 2015-4-25 09:55 AM
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