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TVB's judicial challenge over licences rejected

Judge says intermediate steps in government's decision-making process aren't up for review

PUBLISHED : Monday, 13 May, 2013, 7:00pm
UPDATED : Tuesday, 14 May, 2013, 5:27am
 

A court has dismissed TVB's application for a judicial review of a government agency's decision to recommend the granting of new free-to-air television licences, saying that it will not review intermediate steps of the administration's decision-making process.

Mr Justice Thomas Au Hing-cheung, in the Court of First Instance, wrote in his judgment that the court was not to entertain "challenges of intermediary or preparatory steps in the decision-making process".

The broadcaster earlier said in court filings that the Communications Authority made an "unlawful" recommendation in July, when it supported the granting of new licences, saying the judgment was replete with both factual and legal errors.

TVB asked the court to bar the Chief Executive in Council, made up of the chief executive and Executive Council, from giving licences to City Telecom-owned Hong Kong Television Network, i-Cable Communications subsidiary Fantastic Television, and HK Television Entertainment Co, a unit of PCCW. The three applications were made between December 2009 and March 2010.

Refusing TVB's leave application, Au wrote: "I do not accept that TVB has suffered any substantive adverse legal consequences or clear or irretrievable prejudice at this stage."

The judgment says the intended judicial review seeks to challenge a "future" decision of the Executive Council.

The authority carried out consultations with the public, TVB and another free-to-air broadcaster, ATV, in relation to the applications. But it says the judicial review application focuses on ultimate actions with substantive legal consequences and a decisive or determinative effect.

After learning of the ruling, TVB, in a statement, expressed deep regret over the High Court's decision and said it was seeking legal advice on filing an appeal.

But TV licence applicant Hong Kong Television Network (HKTV) welcomed the ruling, saying there was no more excuse for the government to delay issuing new terrestrial TV licences.

"Faced with strong determination of the public and the industry, as well as considering the long-term development of the local creative industry, the Chief Executive in Council should protect the overall interests of Hong Kong's community by accepting the Broadcasting Authority's [now Communications Authority] recommendation to issue three new licences," HKTV said in a statement.

After the ruling yesterday, shares in HKTV were trading up 16 per cent on the Nasdaq to US$7.15 at press time. In Hong Kong, i-Cable shares rose 6.4 per cent to HK$41.50 and TVB fell 1.1 per cent to HK$61.45.

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