Viewers can contest HKTV refusal
Two members of the public allowed to pursue judicial review of free-to-air licence rejection as it involves 'freedom of expression', judge rules
Two television viewers were yesterday given approval to pursue a judicial review against the government's refusal to grant a free-to-air licence to Hong Kong Television Network (HKTV) after a judge ruled the issue concerned their "right to freedom of expression".
Justice Thomas Au Hing-cheung, of the Court of First Instance, handed down the judgment and granted leave to Kwok Cheuk-kin and Freeman Lam Hon-fei to continue their application against the Chief Executive in Council's decision.
"I accept that the applicants have shown prima facie standing to apply for a judicial review in relation to the interference of their right to freedom of expression ground," the judge wrote.
The pair asked for a judicial review as they found the government failed to give a proper explanation to the public when they announced their refusal to grant a free-to-air licence to HKTV on October 25 last year.
They claimed the government's decision deprived them of their freedom to receive information.
But the government said the court should not allow the pair to continue their application as the decision did not touch on viewers' constitutional right to receive information. They argued such a right only applied to information that was already in existence.
The government claimed the decision only involved HKTV's right to impart information but not the viewers' right to receive information.
They said HKTV had already filed an application for judicial review and HKTV was a "better-placed challenger".
The judge rejected the government's arguments. He found that even if the government was right that the freedom of receiving information could only apply to information in existence, he adopted Kwok's and Lam's view that HKTV had produced a number of television programmes.
"The fact and the extent of such already-in-existence productions must therefore be evidence relevant to the question of whether the applicants' right is engaged," the judge wrote.
The judge also disagreed with the government's view that the right of imparting information and the right of receiving information did not necessarily correspond, and found that the pair's application should be argued in a full hearing.
The two viewers launched the application as they believed the government had taken into account irrelevant considerations while making the decision. They said the government was irrational in all circumstances while refusing HKTV's licence.
HKTV's judicial review will be heard on August 27.
The decision to deny Ricky Wong Wai-kay's HKTV the licence saw thousands take to the streets in protest and a week-long demonstration outside government offices in Tamar.