本帖最後由 felicity2010 於 2015-4-25 03:21 PM 編輯
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3 |7 X) K3 g4 x41. Then, perhaps more pertinently, the Policy statement was made to the LegCo in the LegCo Brief on the 1998 Review of Television Policy at paragraphs 12 and 20 as follows:
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" N( q, P8 ~. h' m3 J/ ptvb now,tvbnow,bttvb“12. Questions were raised as to why the Government had not proposed to open up the free‑to‑air television market for competition. TA [the Telecommunications Authority] has confirmed that, because of spectrum constraint, a fifth UHF television channel with territory‑wide coverage transmitted by analogue technology is technically not feasible at the moment. However, transmission of free television service is not limited to using the UHF spectrum. General and direct‑to‑home satellites, for example, can be used to provide free television services. Under the new technology‑neutral licensing regime, there would be no limit on the number of domestic free licences to be issued. Applications for domestic free licences transmitted through other technically feasible means will be considered.; ?# d, R7 j7 r: Q8 ~
…
/ d& R `% g# {: J' HTVBNOW 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。20. Under the misguided belief that the Government does not intend to open up the free television market, a number of respondents have suggested that the charging of royalties on the terrestrial television licenses should continue. As explained in paragraph 12, there will be no limit on the number of domestic free television licences. Under the new regulatory regime, the free television market, like the pay television and other markets, will be opened up for competition. Thus, it is decided that the advertising and subscription royalties for all television and sound broadcasting licensees should be abolished as originally proposed. The abolition of royalties, together with the immediate application of full‑cost recovery licence fees, would take effect when the new regulatory regime has been put in place.” (emphasis added)
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42. Although statements to similar effect have been repeatedly made by the Government in various contexts and documents over the years, for the present construction purposes, I think it is most pertinent to look at the above two documents. This is so as it is common ground that the Policy was formulated and publicly made in 1998 and there has been no change to the Policy since then.
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# _2 e* n$ Q4 p$ \43. It is the CEIC’s contentions that the statements “no artificial limits should be set for the number of players in the field” (as stated in the press release), and “there would be no limit on the number of domestic free licences to be issued” (as stated in the LegCo Brief) meant and were intended to mean that “the previous ceiling which arose as a result of physical or technological constraints on longer existed”.[15]- `0 ~* h, T# }, G t) r5 o! p" S
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44. Mr Yu SC (leading Ms Eva Sit) for the CEIC submits that the CEIC’s construction of the Policy is correct when it is looked at in the following proper context:
- ~% x. c4 d* Z4 ~& ^: m(1) Before the 1998 review, it had been the case that transmission of FTV programmes was made through analogue technology through the Ultra High Frequency (“UHF”) spectrum. The technological constraints of analogue transmission by UHF spectrum made it impossible and impracticable for accommodating any new FTV licensees in addition to the two incumbent licensees which had been offering TV programmes through four TV channels.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。+ m' p- H' _3 Q, T" s$ g8 C
(2) It is therefore important to understand the statement of “no pre‑set limit” in this proper context. Prior to 1998, the two incumbent licensees, ie, TVB and ATV, each took up two UHF, one for each of the English and Chinese channels. The structural (spectrum) constraints were such that at the time it was physically not feasible to have a fifth UHF with territory‑wide coverage, and so no new FTV license could be granted.
" {- S, ^ Q) m( J, q/ D% k$ M5.39.217.76(3) However, with the advancement in technology, it became possible for television programme services to be transmitted by means other than using the UHF spectrum, thus making it possible for the market to be “opened up” to new entrants. For that reason, the decision was made in 1998 to open up the market, and the BO was enacted thereafter to facilitate this by introducing a “technology‑neutral” licensing regime.1 L; v. ~. X! _$ K( K& y3 Z
(4) All the statements made by or on behalf of the Government that there would be no “pre‑set” or “artificial” ceiling on the number of licenses to be granted have to be understood in this context; they are directed at, and stand in contradistinction to, the previous technology based regime whereunder physical or technological constraints existed which limited the number of licenses that could be granted.
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45. With respect, I am unable to accept the submissions.
* Q& b N, Z, F' T- S46. As borne out by the above quoted texts from the press release and LegCo Brief, the Policy was made in the context of, and to facilitate, the stated objectives of:9 B0 [9 g' m. P# b
(1) Opening up the market for free and fair competition.5.39.217.761 h4 Q# k {/ p+ Q, x1 v. _4 S
(2) Enabling all players to have the freedom to make business decisions and respond to market forces.
& g; ], y( r7 k+ M/ c/ |( ^7 r5.39.217.76(3) Broadening programme choice, encouraging innovation, and promoting Hong Kong as a regional broadcasting hub.公仔箱論壇4 o8 d# S T! p d+ ~
. _2 T n! I5 G5 N& f' |公仔箱論壇47. These underlying objectives of the Policy have been repeatedly emphasised by the Government over the years. In particular, the Government had explained these unchanged objectives as follows:6 l: v A& y# t5 g4 y4 ^
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(1) In the LegCo Paper dated 1 April 2000,[16] in introducing the Broadcasting Bill, and in explaining the general licensing policy under the heading of “Licensing Criteria for Television Programme Service Licences” at paragraph 3, it was stated that following the 1998 Review of Television Policy, the Administration announced the policy decision, among others, to “open up the television market. We believe a vibrant and thriving television market would attract investment, encourage innovation and, most important of all, widen viewers’ choice of programmes… It is stated in the Guidance Note that subject to physical or other constraints, there is no pre‑set limit on the number of licenses to be issued.”
' q/ }0 b$ f8 e. E3 y(2) On 6 January 2010, in the written answer to the Hon Ms Emily Lau’s question on the status of the processing of the FTV licence applications, the Administration stated that “t has long been the Government’s policy to promote the sustainable development of the local broadcasting industry and encourage investment and competition as well as the adoption of innovative technologies by the industry, thereby enhancing TV programming choices and quality, and strengthening HK’s position as regional broadcasting hub under a business‑friendly environment. Subject to geographical and/or transmission constraint, we welcome application under the existing licensing and regulatory regime from any party… The provisions under the BO are comprehensive and forward‑looking. We adopt a market‑driven approach, which is also technology neutral and without a pre‑set limit on the number of licences to be issued…”[17]
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6 ^% q0 t9 f& A1 X48. Looked against these objectives and the context underlying the Policy, I do not agree that the Policy was meant and intended to mean only the removal of a limit on the number of licences that can be granted imposed by reason of the previous technological constraint as contended by the CEIC.tvb now,tvbnow,bttvb1 {& b! [7 ^7 j" ?2 Y' z
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49. In my view, these underlying publicly stated objectives of positively opening up the TV market, promoting fair and active competition in the TV market generally, having a market‑driven approach in the licensing regime, broadening viewers’ choice of programmes, and promoting Hong Kong as a regional hub of television broadcasting, are more consistent with the Policy being one that there would be generally no pre‑set limit on the number of FTV licences that can be granted, unless a limit is necessitated by reason of technological or physical constraints. This is particularly so as:
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/ F# P3 h: a9 i: u, O(1) It is more consistent with the language used in stating the Policy:5.39.217.76( p2 a5 X, l9 ?$ u7 [. l W; c
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(a) For example and in particular, in the press release (as quoted at paragraph 40 above), the Administration stated expressly that so far as “market demands exist” and “the advance of technologies allows”, no artificial limits should be set for the number of players in the field. In other words, the no pre‑set limit policy was a response to and reflection of not only just the removal of previous technological constraints but also the market demands for more players in the FTV market. This is thus inconsistent with the CEIC’s contention that the Policy was only to remove a ceiling imposed previously by reason of technological constraints.
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(b) Further, the positive language used in stating the Policy that there being no pre‑set limit on the number of FTV licences that could be granted is on its face inconsistent with expressing an intention that it was only to remove the previous ceiling which existed because of technological constraint. This is more so as there was in any event not a previous stated policy that only two licences could be granted. It was only an objective hitherto fact that there could only be two licences because of the technological constraints. Ordinarily understood, if it were the intention and meaning of the Policy to state that the latest technology removed any constraints on the number of licences that could theoretically be granted, one would have expected the Administration to state it simply that way, instead of stating it in the reverse way of there being no limit of licences that could be granted, subject to any technological or physical constraints. It would also be unnecessary for the Administration to expressly underline the Policy by the objectives of facilitating and promoting a market‑driven, fair and free competition of the FTV market.
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1 S" k3 @; d. t: ktvb now,tvbnow,bttvb(2) In those publicly made statements setting out the Policy of no pre‑set limit, whenever a qualification was made, they only expressly referred to physical and technological constraints. If the Administration had also intended, under the Policy, to be in a position to impose a limit based on other reasons in appropriate circumstances, it would be unusual for her not to have expressly reserved that position when stating and re‑stating the Policy repeatedly over the years.
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7 X3 [% t) [( }, K1 W, dtvb now,tvbnow,bttvb50. Mr Yu however also contends that HKTVN’s construction of the meaning of the Policy cannot be correct as it would be inconsistent with the clear and wide statutory discretion given to the CEIC.
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51. It is submitted that the BO has expressly made clear that the CEIC has an unfettered discretion whether to grant a licence or not, and the CEIC needs only to consider the Authority’s recommendations but is not bound by them. On the other hand, HKTVN’s construction of the meaning of the Policy means effectively that as long as an applicant satisfies the requirements of the Guidance Note, it must be granted a FTV licence. Thus (Mr Yu further says), HKTVN’s said contended meaning of the Policy, if accepted, will be directly contrary to the statutory scheme, as it would fetter the CEIC’s statutory discretion. As such, the Policy could not have been a lawful policy, as it is trite that a policy is only lawful if it does not go beyond the terms and purposes of the relevant power or if it seeks to fetter the decision‑maker’s relevant discretion. See: De Smith, supra, paragraph 5‑080; EC Gransden v Secretary of State for the Environment (1987) 54 P & CR 86 at 93‑94, perWoolf J; Asburn et al, Judicial Review Principles and Procedure, paragraphs 21.05 and 21.32; Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corp [2009] HKLRD 620 at 630‑1.5.39.217.767 A, @* D1 k. k
3 }4 H& U# ^, j0 Y公仔箱論壇52. Similarly, Mr Yu submits that HKTVN’s said construction of the Policy is also directly contradictory to and inconsistent with the Guidance Note, which has expressly provided that, whilst there is no pre‑set ceiling on the number of licences to be issued,[18] mere compliance with the Guidance Note does not entitle the applicant to the grant of a licence and the final decision rests with the CEIC.[19]
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- X- H4 M5 t" X, j: ^) `, _tvb now,tvbnow,bttvb53. Again with respect, I am not persuaded by these submissions.
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54. These arguments are premised fundamentally on the submissions that HKTVN’s case is that the Policy of no pre‑set limit means as long as an applicant satisfies all the requirements under the Guidance Note, a licence has to be granted.
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8 ~ T5 N0 D; L+ ]; v) s/ z3 Qtvb now,tvbnow,bttvb55. However, I do not understand HKTVN’s case is as such. This is confirmed by Mr Coleman SC (leading Mr Jin Pao) for HKTVN, who submits at the hearing that HKTVN’s case is that under the Policy, there would not generally be a pre‑set limit on the number of licences that can be granted in assessing any applications for FTV licences. What it means is that an application (which say has met all the basic requirements as provided in the Guidance Note) cannot be rejected effectively on the ground and by the reason that there is already a fixed number of licences that would be granted. The CEIC, in considering the applications, is however still entitled in the exercise of his discretion to reject an application on other reasons, for example say qualitative reasons targeted at the subject application and wider public interest considerations. It is only that, given the Policy, the CEIC cannot reject an application effectively by reference to the reason that there is already a pre‑fixed number of licences that the Administration would grant.
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! R! Z) Q' s2 j) {! _$ u; N* @4 Y5.39.217.7656. I agree with Mr Coleman. It is not HKTVN’s case as expressly stated in the Form 86 that the Policy means an application must be granted as long as it satisfies all the requirements in the Guidance Note. I also do not find that to be a logical and inevitable consequence of the meaning that there cannot be a pre‑set limit on the number of licences that would be granted. As submitted by Mr Coleman, the Policy only means that an application would and should not be rejected on the basis of there being a decided or pre‑fixed number of licences that can be granted. It does not mean that it cannot be rejected on the basis of other justifiable reasons not based on there being a fixed number of licences that can be granted.
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8 w. R; f6 q3 s' v57. I will therefore also reject Mr Yu’s above contentions.
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58. I therefore conclude that, on a proper construction, the meaning of the Policy of no pre‑set limit is that, other than physical or technological constraints, the Administration would not effectively reject an application for FTV licence on the basis of or by reference to the reason that there is already a pre‑fixed number of licences that could be granted.
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59. Having concluded on the meaning of the Policy, I now turn to look at the next question as to whether the Decision was made in departure from that Policy.* O3 M! G" P) Y# s' I A
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7 a) T; J- D; U5.39.217.76C1.2 Whether the Decision made was in adherence to the Policytvb now,tvbnow,bttvb4 c- I4 F6 E5 P9 A4 ]0 Q
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60. Under this question, one has to consider whether the basis underlying the Decision to refuse HKTVN’s licence application is effectively that there was a pre‑fixed number of FTV licences that the Administration had decided to issue.5.39.217.760 h7 D$ Q2 U. r' m
$ V: n- q0 y- {- R2 e {2 t9 ^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。61. As mentioned above, after studying the Consultant’s reports, the Authority on 13 July 2012 submitted its recommendations to the CEIC recommending that AIP be given to grant FTV licence to all three applicants, including HKTVN. It is also the Authority’s view that all three applications had met the requirements set out in the Guidance Note.
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62. For the purpose of this judicial review, the CEIC has disclosed all the memoranda and minutes of those relevant ExCo meetings[20] leading to the Decision. The SCED has also filed an affidavit to explain the background and events leading to the Decision.5.39.217.768 h' T( k0 r# w, u3 x
) R# ^6 g- N/ B# o5.39.217.7663. After reading these minutes and evidence (which are not in any controversy), the bases upon which the CEIC decided to refuse HKTVN’s applicant can be summarised as follows:公仔箱論壇7 K, }: b& [& l1 V* g. j
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(1) The CE was of the view that the Administration should in the public interest adopt a gradual and orderly approach in considering the granting of FTV licences. This is so because the FTV market might not be able to support five licensees (as concluded by the Consultant in its reports). This would lead to cut‑throat competition among the licensees, which would in turn lead to deterioration of programmes quality. There would also be less divergence on programme types. One or more of the licensees might fail. The reputation of Hong Kong as a regional broadcasting hub would therefore be affected. These would not be in the best interest of the public. The CE was of the view that, although there was not sufficient competition in the current FTV market, a completely open market also would not be conducive to an optimal competition themselves and therefore a gradual and orderly approach was a right step in the current market in order to ensure quality.
/ a# v! a) H i7 m2 c b) p Wtvb now,tvbnow,bttvb(2) Further, the CE also reiterated his view that in considering the three applications for FTV licences, among the four criteria as assessed by the Consultant,[21] programming strategy and capability should be given the most important weight in assessing the competitiveness of the three applicants.
" y# ]* J0 Q4 l) n1 T1 btvb now,tvbnow,bttvb(3) After deliberations, the members then by majority[22] agreed that (a) the gradual and orderly approach should be adopted; and (b) Fantastic TV should be granted AIP if one licence was to be granted, and Fantastic TV and Entertainment TV should be given AIP if two licences were to be granted.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。$ }5 I; V# M- _- j+ ~$ U; ^
(4) It was then recorded that the ExCo advised and the CE ordered that (a) the gradual and orderly approach should be adopted in considering the FTV licence applications; and (b) Fantastic TV and Entertainment TV should be given AIP subject to the CEIC’s further review and final determination, while HKTVN’s application should be rejected.公仔箱論壇6 F1 R! O0 u- }- Z; @+ L2 y
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64. In my view, the above bases objectively looked at show that the Decision was made by the CEIC in substance by reference to the reason that there was a pre‑fixed a number of FTV licences that can be granted. This is so as:tvb now,tvbnow,bttvb( P3 y' A" K j2 w8 e. M% V
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(1) By adopting the gradual and orderly approach in considering the three applications (and given that the reasons in adopting it is to avoid too many players in the market which might in the CE’s view affect programme quality), the CEIC in effect and in substance decided that there should be a limit of no more than two licences that could be granted. This is further borne out by the fact that, under this approach, the CEIC then went on to consider and rank which of the three applicants should be given the AIP if either one or two AIP were to be granted.
L% ]! q$ ]/ I2 v- Q& {- G# M( l5.39.217.76(2) Inherent in having to rank the applicants, instead of assessing each of them individually on its own merits as to whether its application for licence should be granted, is that there would be a pre‑fixed limit on the number of licences that can be granted. |
發表於 2015-4-25 09:55 AM
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