LCQ2: Domestic free television programme service licences
Following is a question by the Dr Hon Lam Tai-fai and a written reply by the Secretary for Commerce and Economic Development, Mr Gregory So, in the Legislative Council today (May 20):
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 and ordered that the relevant licence application be remitted back to the CEIC for reconsideration. The Chief Executive said in response to the incident that the CEIC, in handling all the licence applications, has acted in accordance with the law and considered the matter from the legal point of view, and that the relevant 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. On the other hand, as the Government has decided not to renew the licence of Asia Television Limited (ATV), members of the public will have fewer choices of free television programmes. In this connection, will the Government inform this Council:
(1) whether it will file an appeal; if it will, when it will do so; if not, of the reasons for that;
(2) of the time when the lawyer is due to provide legal advice to the CEIC, as required by the relevant department; whether it will announce the details of the legal advice and the next course of action; if it will, of the details; if not, the reasons for that;
(3) whether the CEIC had sought legal advice before deciding not to grant a licence to HKTVN; if it had, of the details (including the legal basis for not granting a licence to HKTVN); if not, the reasons for that;
(4) whether it will start afresh the process of vetting and approval of HKTVN's licence application; if it will, of the details, and when the relevant proposal will be submitted to the CEIC for discussion; if not, of the factors of consideration;
(5) whether it has assessed if the ruling against the Government in this lawsuit has affected the credibility of its governance, the public perception of the Government and the popularity of the officials concerned; if it has assessed, of the details; if not, the reasons for that;
(6) given that ATV's licence has not been renewed, whether it will start afresh the process of vetting and approval of HKTVN's licence application in the light of the latest situation; if it will, of the details; if not, the reasons for that;
(7) whether it will review the procedures for vetting and approval of licence applications and the relevant policy in the light of the aforesaid ruling; if it will, of the details; if not, the reasons for that;
(8) given that there are views that the granting of licence is a "black box operation", whether it will publish clear assessment criteria and guidelines again in this regard; if it will, of the details; if not, the reasons for that;
(9) whether it will re-examine the capacity of the television market and consider issuing more licences, so that the audiences will have more choices of free television programmes; if it will, of the details; if not, the reasons for that; and
(10) given that the Broadcasting Ordinance (Cap. 562) does not stipulate an upper limit on the number of licences to be granted by the authorities, of the circumstances under which the authorities will consider capping the number of licences?
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 ten-part question is as follows:
(1) & (2) 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. Based on legal professional privilege, the Government will not disclose the legal advice submitted by the counsel to the CE in Council.
(3) The Government will process each free TV licence application received in accordance with the relevant legislation and established procedures, and seek legal advice where necessary to ensure the applications are processed in accordance with the law. We have made explanations when we submitted relevant documents to the Legislative Council and attended the discussions. In the course of the proceedings of the judicial review case, the Government also stated to the court the legal grounds and relevant information in support of the CE in Council's decision at that time. The Government has nothing to add.
(4) to (6) 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.
Since the Court of Appeal has not yet heard and ruled on the appeal in respect of the judicial review case, the Government will not comment on the case.
(7) to (10) 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.
Ends/Wednesday, May 20, 2015