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Following is a question by the Hon Frederick Fung and a written reply by the Secretary for Commerce and Economic Development, Mr Gregory So, in the Legislative Council today (May 20):
Question:
Hong Kong Television Network Limited (HKTVN) earlier applied for judicial review against the decision of the Chief Executive in Council (CEIC) not to grant it a domestic free television programme service licence (licence). The High Court ruled in favour of HKTVN on April 24 this year. The judgment stated that the adoption by the CEIC of a gradual and orderly approach in considering licence applications was not in adherence to the established policy under which there was no upper limit set on the number of licences to be issued, and was also contrary to HKTVN's legitimate expectation. As such, the Court ruled that the decision by the CEIC was invalid, and ordered that the relevant licence application be remitted back to the CEIC for reconsideration. In this connection, will the Government inform this Council:
(1) whether it had, before the Court handed down the verdict, formulated a contingency plan in the event of losing the lawsuit; if it had, whether the contingency plan was to expeditiously re-examine the relevant licence application, or to definitely file an appeal all the way to the Court of Final Appeal in any event; if it has not formulated such a contingency plan, of the reasons for that;
(2) as quite a number of members of the public have expressed grave concern about the decision of the CEIC not to grant a licence to HKTVN and the decision has aroused controversies in the community, whether the authorities have reviewed the process of and justifications for making the decision, so as to identify the deficiencies in that; if they have not, of the reasons for that;
(3) as the Chief Executive said after the High Court had handed down the aforesaid verdict that the relevant government department would obtain legal advice for consideration by the CEIC, so that there would be a "legal basis" for the CEIC to determine the next course of action, of the latest development in this respect; the respective weightings of the following factors when the CEIC determines the next course of action: the need to uphold the prestige of governance, demonstrating the CEIC's respect for the Court's verdict, earlier public reaction to the CEIC's decision of not accepting the application for a licence by HKTVN, and political considerations; and
(4) whether it will consider filing an application to the Court for a suspension of execution of the aforesaid verdict while awaiting an appeal hearing; if it will not, of the reasons for that; whether it will re-examine the relevant licence application while awaiting an appeal hearing, so as to show respect for the Court's verdict; if it will not do so, of the reasons for that?
Reply:
President,
The objective of the Government's broadcasting policy is to provide more programme choices for our audience, and encourage investments in our broadcasting industry with a view to enhancing fair and effective competition so as to strengthen Hong Kong's position as the broadcasting hub in the region. We have been adhering to the above policy in processing the grant and renewal of domestic free television programme service (free TV) licences.
The Chief Executive (CE) in Council processed the free TV licences applications and granted approvals-in-principle (AIPs) to the applications for free TV licences in 2013. The decision, which is in the public interest, was so made in accordance with the relevant legislation and having regard to relevant considerations. In considering the applications, the CE in Council has already taken into account considerations such as public interest and whether the local broadcasting market as a whole would be sustainable.
My reply to the four-part question is as follows:
(1) & (3) After considering legal advice, the CE in Council has decided to lodge an appeal against the judgment handed down earlier by the Court of First Instance of the High Court (CFI) on the judicial review case. The Notice of Appeal has been served on the solicitors of the Hong Kong Television Network Limited (HKTVN) on May 19 according to the rules of the Court. As the judicial review case is on appeal, the Government is not in a position to make any comments on the case at this stage.
(2) The mechanism for processing free TV licence applications has been effective. The Government makes decisions in accordance with the relevant legislation and established procedures, with due regard to the market condition at the time when the free TV licence applications are made, as well as all relevant factors.
In 2013, having considered all relevant factors, including the implications of issuing additional free TV licences for the overall development of domestic free TV industry, public interests and the applicants' representations, the CE in Council decided that a gradual and orderly approach be adopted in introducing competition and granted AIPs to two applications for free TV licences. We consider the decision a prudent and responsible one as it ensures a healthy and orderly development of the market and serves the public interest.
(4) Since HKTVN's first free TV licence application will be the issue to be addressed as the judicial review case goes on appeal, the Government will follow up with HKTVN on the arrangements for processing the application, including whether the order of CFI should stay in respect of this appeal case.
Ends/Wednesday, May 20, 2015
Issued at HKT 14:09
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