Government may still face judicial review of TV decision, say experts

Legal expert thinks Exco should have referred matter back to the Communications Authority

PUBLISHED : Tuesday, 05 November, 2013, 11:32pm
UPDATED : Wednesday, 06 November, 2013, 4:36am

The government may still face a judicial challenge over its decision to reject Hong Kong Television Network's application for a free-to-air television licence despite its latest attempt to explain itself.

Legal experts from the University of Hong Kong said the latest government explanation exposed procedural decisionmaking flaws.

The scholars said the Chief Executive in Council had changed the policy by deciding to grant only two new licences.

There were still reasonable grounds for a judicial challenge, said Professor Albert Chen Hung-yee and lecturer Eric Cheung Tat-ming.

The government has cited confidentiality in refusing to say more about why Ricky Wong Wai-kay's HKTV lost out.

On October 15, the Chief Executive in Council made the controversial decision to approve in principle applications by PCCW's Hong Kong Television Entertainment Company and iCable's Fantastic Television.

Both Chen and Cheung said the council probably made a procedural mistake in not returning the issue to the Communications Authority after it decided to grant only two licences.

The authority had previously recommended to Exco that three licences be granted.

Chen said under the Broadcasting Ordinance, the Chief Executive in Council has to consider the authority's recommendation in deciding which applicant should get a licence.

Cheung said the council appeared to have ignored the crucial role of the authority's recommendation under the law.

"Reading the statement, it appears to me that the CE in Council had attached little weight to the recommendations made by the authority and focused on its own considerations," he said. "It appears to me that the CE in Council usurped the function of the authority ."

Chen said the authority's recommendation was crucial because it consisted of experts in the field.

Chen added that the government also failed to give a satisfactory explanation why applicants were not allowed to alter their proposals after the government adopted a "gradual and orderly" approach to the issue of licences.

"It said that it was to avoid making the process endless, but in fact it could have imposed a deadline to submit an altered proposal," he said.

Cheung also said: "The statement does not add much to what it said last month. The point of the government failing to give sufficient reasons remains valid."

Chen said it was not a legal rule that the contents of an Executive Council meeting must be kept confidential. Rather, it was only a practice of the council.

"When the court decides on whether the government needs to give reasons for its decision, the test is whether fairness requires that reasoning be provided," Chen said.

"The court cannot compel the government to give reasons but if the court thinks it is a case where the government should give reasons and it fails to do so, the court can quash the decision," he said.

HKTV has yet to file a judicial review.