CHEUNG TAK WING v. COMMUNICATIONS AUTHORITY AND ANOTHER

bjbj HCAL 60/2015 [2018] HKCFI 2481 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 60 OF 2015 _______________ BETWEEN CHEUNG TAK WING Applicant and COMMUNICATIONS AUTHORITY 1st Respondent DIRECTOR OF INFORMATION 2nd Respondent SERVICES _______________ Before: Hon Au J in Court Date of Hearing: 7 November 2016 Date of Judgment: 9 November 2018 J U D G M E N T A. INTRODUCTION AUTONUMOUT This is the applicant s judicial review application to challenge the decisions ( the Decisions ) made respectively by the Communications Authority ( the Authority ) and the Director of Information Services Department ( the Director ). The Decisions relate to the broadcast through domestic free and paid TV and radio since 22 ls ( the Reform Proposals ) concerning how the method for selecting the Chief Executive in Hong Kong ( the CE ) be amended. At the time when the applicant applied for leave to challenge the Decisions, the motion ( the Motion ) which contained the Reform Proposals would very soon be tabled before the Legislative Council ( the LegCo ) for endorsement by its Members. The Motion (and thus the Reform Proposals) would only be passed if it was endorsed by two-thirds of all the Members of the LegCo. If it was so endorsed, under the constitutional mechanism, the Reform Proposals would further need to be consented to by the CE and then approved by the National People s Congress Standing Committee ( NPCSC ) before the corresponding amendments would be formally made to the Basic Law to become law. AUTONUMOUT As will be expanded further below, under the relevant legislative provisions and licensing conditions, the Government can require the relevant TV and radio licensees to broadcast free of charge materials supplied by the Government which are Announcements in the Public Interest ). Moreover, the Government is also exempted from a ban which prohibits any person to put in advertisements for broadcast which are political in nature. AUTONUMOUT The applicant in this challenge says effectively that the Impugned Announcements are not API. He further argues that, even if they are API, they are in any event political in nature, and the said exemption for the Government is unconstitutional being discriminatory e not API and the Authority and the Director acted unlawfully in making the Decisions. Further, the applicant asks for the relief of an injunction to effectively restrain the broadcast of the Impugned Announcements. AUTONUMOUT By way of a summons filed at the same time of the leave application, ver, the applicant still seeks the following reliefs: A declaration that the Impugned Announcements are not API and hence the Authority acted unlawfully by directing the TV licensees and Radio licensees to broadcast them. Further and alternatively: A declaration that section Announcements are political in nature and hence the Authority acted unlawfully by directing the TV licensees and the Radio licensees to broadcast them. A declaration that the Authority abdicated its duty and power by deciding (on a continuous basis) to direct the TV and Radio Licensees to broadcast materials purportedly as APIs in accordance with broadcast schedules supplied by the Director. A declaration that the Director acted unlawfully by supplying the Impugned Announcements which were not API or politic 562) ( the BO ) and the Telecommunications Ordinance (Cap 106) ( the TO ). Service providers can only lawfully provide domestic television and radio broadcast services with the respective relevant licences granted by the Chief Executive in Council ( the CEIC AUTONUMOUT Terms and conditions are imposed in these licences for the operation of the broadcasting services. AUTONUMOUT A relevant standard condition in all TV licences is as follows: 18.1 The Licensee shall include in its Service such: (a) publicity material in order to promote knowledge and understanding of the activities and the functions of the [Authority]; and (b) television programmes and other material in the public interest including but not limited to weather programmes and weather forecasts provided by the Government, as the [Authority] may provide or direct and at such time, within such period, on such channel, within or without such programme and in such language or dialect as the [Authority] may direct. 18.4 For the avoidance of doubt, the Licensee shall not, in the performance of this Condition, be: (i) responsible for the contents of the material included in the Service; and (ii) entitled to charge the [Authority] or the Government. (emphasis added) AUTONUMOUT A standard condition in all Radio licences includes: 28. Announcement in the public interest The Licensee shall broadcast in each of its Sound Broadcasting Service channels for periods not exceeding in total one minute in each clock-hour such announcements in the public interest as the [Authority] may determine. Publicity Material of the Broadcasting Authority The Licensee shall broadcast in each of its Sound Broadcasting Service channels such publicity material as the Broadcasting Authority may direct in order to promote knowledge and understanding of the activities and functions of that Authority. (emphasis added) AUTONUMOUT Hence, in substance, it is a standard condition of a TV or Radio licence that the licensee shall broadcast materials or announ terest. AUTONUMOUT It is common ground that, as a matter of fact and practice, only the Information Services Department ( the ISD ) or the Government supplied materials, or those supplied by the Authority as promotional materials for the Authority s work, would be classified by the Authority as API. AUTONUMOUT Hence, under paragraph ONUMOUT Given that the underlying complaint against the factual broadcast of the Impugned Announcements is no longer relevant by the time of the substantive hearing, I would only set out briefly the relevant background facts relating to its broadcast to put the matter in proper context. They are not in any real dispute and are as follows. AUTONUMOUT Article e CE after 2007 will involve the following five steps ( the 5-step process ): Step 1 The CE will make a report to the NPCSC as to whether there is a need to make an amendment. Step 2 The NPCSC will make a determination in light of the actual situation in Hong Kong and in accordance with BL45 and the principle of gradual and orderly progress. Step 3 The bill on the amendments to the method for selecting the CE shall be introduced by the Government into the LegCo to be endorsed by two-thirds majority of nnounced the setting up of the Task Force on Constitutional Development. The Task Force would be responsible for conducting the consultation exercise in respect of the methods for selecting the CE in 2017 and for forming the LegCo in 2016. AUTONUMOUT In July J e CE in 2017. It sets out the Reform Proposals put forward by the Government for the method of selecting the CE. It was the Government s view that the Reform Proposals conformed with the parameters prescribed under the 831 NPCSC Decision and at the same time reflected the views collected from the consultation exercises. As mentioned above, the Reform Proposals were appended to the Motion to be put before the LegCo for vote. AUTONUMOUT For the above purpose of the above consultation process and the pro ?e9e N ND} snfx 1u`O1u snfx snfx g9h g snfx ghy ghy _j N t happen!) (ie, the Impugned Announcements) were and continued to be broadcast until the Motion was put to the LegCo. AUTONUMOUT The visual element of the television broadcast of the Impugned Announcements consists of a series of shots showing Hong Kong residents of different age groups each looking into the camera to make short statements. The image then changes to shots of the three principal officials namely, the then Secretary for Justice ( the SJ ), the then Secretary for Constitutional and Mainland Affairs ( the SCMA ), and the then Chief Secretary ( the CS ) (collectively the Principal Officials ). The final visual image is a repeat of the slogan 2017 Make it happen! with a link to the 2017.gov.hk website. AUTONUMOUT The audio element starts with the sound of a tram, before a light score is overlaid with statements from the visual actors. The statements are: Having discussed for so long, we can finally get it. One person one vote to elect the Chief Executive, We really want to vote We can move forward, Of course we shouldn t stand still Hong Kong s future. We can have a say in Hong Kong s future. We really want to vote to elect the Chief Executive. Upon the introduction of the Principal Officials, they each make a statement. The SJ says: A regime of universal suffrage that complies with the Basic Law , the SCMA says Five million voters electing the Chief Executive for the first time , and the CS says For our future, cherish this opportunity, please support the universal suffrage proposal. AUTONUMOUT The radio broadcast consists of a man and a woman taking turns to speak. The message is largely the same as the audio element of the television broadcast with the exception that SJ and SCMA. Their messages in the video, are instead said by the unknown man and woman. The CS concludes with the same message that she conveyed in the television broadcast. AUTONUMOUT The applicant is a Hong Kong permanent resident and is eligible to vote. It is his position that he does Hence, by the time of the substantive hearing, there were no longer any live issues as to whether the Impugned Announcements should be continued to be broadcast and whether the decisions to require the broadcasters to broadcast them were lawful or not. D. THIS JUDICIAL REVIEW D1. Grounds of judicial review AUTONUMOUT ents, the Authority and the Director acted unlawfully, or alternatively the Authority has abdicated its duty. The principal arguments advanced under these Grounds can be very briefly summarised as these: The Authority has power under the relevant licence conditions to direct the TV and Radio licensees to broadcast materials which are API. See for example, Condition of imparting information which is in the public interest, and it should convey something of benefit to viewers and on which views could act for themselves. However, the Impugned Announcements do not fall within those categories, as it only advances a message to urge the public to support the Reform Proposals. They do not seek to set out the arguments or views in favour of as well as in opposition to the proposals. They are therefore not to inform and educate the public about facts or information which can be objectively proved to be in the public interest. Given the power provided under the relevant licence conditions to direct a broadcaster to so broadcast the API materials supplied by the Government, coupled with its statutory function and power to administer licence conditions, pplied directly by the Director for the Government in whatever schedule of broadcast the Director has asked those materials to be broadcast. Further alternatively, if the Authority had no statutory duty or power to examine the materials supplied by the Government as API were in fact in the public interest , then the Director herself acted unlawfully by supplying the Impugned Announcements to the broadcasters purported as API when they should not have been so regarded or classified. Ground are discriminatory on the ground of status (favouring the Government), which is in breach of BL25 and HKBOR22. These provisions therefore have no legal effect. In the premises, the Authority and the Director acted unlawfully (in light of the ban) by directing the broadcasters to broadcast the Impugned Announcements. AUTONUMOUT The Authority and the Director both contend that the judicial review should be dismissed on the basis that: The judicial review application has become academic, and hence the court should not entertain it. The grounds are without merit. In any event, even if the grounds have merits, given that the application was taken out of the statutory 3-month period, the court should exercise its discretion not to grant any of the reliefs sought. AUTONUMOUT I now turn to look at the arguments raised. D2. Should the court entertain this judicial review AUTONUMOUT Mr the applicant in this judicial review also seeks declaration as to the meaning of in the licensing conditions, whether the Authority has a statutory duty to vet the Government s supplied materials to see whether they are API, and whether the Exemption is constitutional. These issues are not only not academic but also very important. This is particularly so, as given the extant ongoing actual circumstances in Hong Kong, it is not unrealistic to say there may be events or circumstances that would arise in the future which may require the resolution of these issues. Hence, it is necessary, appropriate and important for the court to deal with them now. AUTONUMOUT In this respect, it is well recognised that the court can entertain a judicial review which has become academic following the principles laid down in Chit Fai Motors v Commissioner for Transport [2004] the time of the hearing. Whether the court does so or not requires one to examine the utility of the decision. In public law cases, the duties of public bodies fall to be exercised on a continuing basis not only in relation to the parties before the court but also perhaps to others in the future. Examples include, a discrete point of statutory construction which does not involve detailed consideration of the facts, where a large number of similar cases exist or will most likely need to be resolved in the nea Act. Secondly, it is an issue of importance to housing authorities and individual applicants who are homeless as the answer to that issue will determine how housing authorities should approach their duty under section 188 of the Act. Thirdly, the issue may not otherwise be determined unless it is resolved in a case such as the present. The issue relates to the interim duty to provide temporary accommodation pending a decision, following inquiries, on whether or not a duty is owed under the provisions of Part VII of the Act. The period of time during which that interim duty is owed is likely to be relatively short and in most, perhaps all, cases the question of enforcement of the duty would have ceased to be a live issue before the matter could be brought before a court by way of judicial review. There may not be a case where the issue has not become academic before the court considers it. Fourthly, in the present case, the issue arises against a background of actual rather than assumed or hypothetical facts. Even when considering questions of statutory interpretation, it is usually preferable to approach the matter on the basis of an actual factual situation. That better enables possible alternative interpretations of the statutory provision to be assessed. For all those reasons, there is a public interest in dealing with the principal issue and this case is an appropriate case for the court to rule on that issue. (emphasis added) AUTONUMOUT Bearing the above principles in mind, I agree with Mr rity and the Director going forward insofar as how they approach their duties. The controversy in relation to the broadcast of Government materials that may be argued to be political in nature may well arise again given the present circumstances in Hong Kong. The constitutional reform proposal did not gain the requisite amount of support by the LegCo in 2015. There may well be another round of constitutional reform the same or similar types of advertisements would recur. Any such advertisements under chal NUMOUT As summarized above, it is the applicant s principal contention that the objective meaning of refers to an announcement that is in the public interest to be made. The subject matter of the announcement must therefore concern something which can be objectively proven to be good or beneficial to the public, in the sense that the advertisement s purpose is to inform and educate the public by means of imparting information which is in the public interest, and it should convey something of bene rpose of the specific announcement not merely the topic or issue and which could be very loosely or broadly formulated must be scrutinized. AUTONUMOUT If one asks the question, is it in the public interest to issue this announcement (or is this announcement made in the public interest), one must naturally focus on what it is that the recipient is expected to do upon viewing it. At the end of the day all messages are intended at influencing conduct. AUTONUMOUT For example, in the case of a campaign that is thought by the Government to benefit the community (eg, clean Hong Kong, promotion of tourism), the recipients are expected to be educated about the merits of a certain cause and then act accordingly (eg, throw rubbish in the dustbin, be courteous to tourists). AUTONUMOUT By way other examples, the public might be: told of an imminent or current consultation and be urged to express their views and provided information and channels as to how to express their views (ie, by questionnaire, survey, email, website form) and provided with a deadline; informed about the civic duty to vote in elections, with a view to urging them to vote but without expressing any views on any candidate or groups of candidates; warned of phone scams, or failures to maintain dangerous slopes, and urged to be careful or face prosecution; informed about constitutional rights or a change of legislation, to enable the general public to exercise their rights and operate within the boundaries of law; provided with inform t influencing the public s conduct by providing relevant information. AUTONUMOUT There may be uncontroversial cases such as clean Hong Kong, or the need to be vigilant and guard against telephone scams. Those are self-evidently in the public interest. Hong Kong should be clean. The public should be vigilant against being misinformed. AUTONUMOUT There could be some messages that are more controversial. However, as long as the message is: (a) as API. In the latter case, the beneficial and public good nature of the message is borne out by the fact that it has received the blessing of the relevant organ responsible for determining the well-being of Hong Kong. AUTONUMOUT What is the requisite political clearance or approval (and from what organ) depends on context and the nature of the policy or objective, and how controversial the subject matter is. Often it could be a routine and uncontroversial matter within the remit of individual departments. Sometimes the policy is decided upon on a higher level but can be implemented without legislation. Sometimes legislation is needed or legislative approval through financial budgeting is required. AUTONUMOUT On the other hand, in rebuttal, Mr Board ( the BRB ) recommended to the Administration to the following effect: Licensees should not be obliged to broadcast Announcements of Public Interest which have a clear commercial motive (eg, tickets for Urban Council performances) or which are concerned with recruitment to Government departments. In future, only Announcements in the Public Interest (ie, APIs) (as opposed to Announcements of Public Interest) in the following sense should be produced with public funds, namely: that it is in the public ed at Annex A) and the Administration s comments on them, the Council advised and the Governor ordered: that Announcements in the Public interest (API) should be broadcasted without charge by the licensees; and that the authority to determine what material constitutes an API should be vested with the proposed Broadcasting Authority; 2. The background to and arguments supporting the above decisions are set out below. Some relatively minor recommendations of the BRB on advertising and programme quality are proposed to be dealt with by the proposed Broadcasting Authority to be established, and are summarised at Annex B. Announcements of public Interest (APIs) 20. Under section 25A(1) of the Television Ordinance, television licensees are obliged to broadcast APIs free of charge. At present television APIs account for about seven minutes per service per day. The BRB considered that excessive use was being made of the statutory requirement on TV licensees to broadcast APIs and that licensees should not be obliged to broadcast APIs which had a clear commercial motive (e.g. tickets for Urban Council performances) or which were concerned with recruitment to Government departments. The BRB recommended that: (a) the Government should pay for all APIs unless they were of an emergency nature or had a genuine public message such as announcements dealing with health, safety, social welfare and registration of persons; (b) any dispute over what constituted an API should be resolved by the Broadcasting Authority or failing that the Radio and Television Complaints Tribunal. 21. In parallel with the BRB, the Administration has reviewed the types of APIs made in the last two years and by applying stricter criteria has also come to a conclusion that there are a limited number of APIs which are marginal cases. At present, the full name of API is Announcement of Public Interest. It is considered that Government should require licensees to broadcast Announcements in the Public Interest free of charge. Indeed, it is the intention that in future only Announcements in the Public Interest should be produced with public funds. To qualify as an API under the new definition, one of the following criteria would have to be satisfied:- (a) that it is in the public s interest to broadcast the message on TV; (b) that the message relates to such issues of public concern as health, safety, social welfare, legal obligations, availability of public resources and changes affecting traffic or other environmental factors; or (c) that the message is directly related to a government policy or operational objective. 22. The BRB recommended that it should still be the responsibility of the Administration to select topics for the production of APIs, but in the event of any dispute with the commercial licensees, the matter should be referred to the Broadcasting Authority whose decision shall be final. The Government endorses, the recommendation. 30. The Governor-in-Council advised that a press statement should be issued announcing the acceptance of the a ake into account what the CEIC (formerly the Governor in Council), the very entity who imposes the condition, has intended the term to mean. AUTONUMOUT Importantly, the intended meaning of the term has been clearly set out in and supported by objective and publicly available documents (ie, the LegCo Brief, and the Good Practice Guide to Publicity Campaigns (2015 public service advertising to support what he says the term should mean in Hong Kong. He submits that these determinations have laid down the following guidelines which are relevant to the determination of what should mean: Public service advertising has a long history, placed by government departments imparting information and advice to the public about matters of health, road safety, fire prevention, or encouraging literacy. Political advertisements are not public service advertising. The primary determinant is that the advertisements purpose is to inform and educate the public by means of imparting information which is in the public interest. Other determinant factors include: the nature of the advertisements subject matter; the nature of the information or advice given; the manner in which information or advice is given; the timing and context of the advertisement s broadcast; the degree of any controversy that might be associated with the subject matter and/or contents of the advertisements; and whether the advertisement confers some benefit to viewers to enable themselves to act in a beneficial way and change their conduct. A distinction is to be drawn between the Government s wider policy (which may be of interest to the public) and whether the advertisement itself was of a public service nature (which is in the public interest). AUTONUMOUT The Ofcom determinations referred to are: Ofcom in the Mayor of London Tower of Hamlets (Ofcom Broadcast Bulletin, Issue Number ced. Their determinations are clearly distinguishable. AUTONUMOUT First, the term under determination is in relation to advertisement of public service nature , which is materially different from the term of . API by itself (without limiting to public service ) objectively encompasses a wider meaning. AUTONUMOUT Second, and importantly, these determinations concerned with the objective meaning of an advertisement of a public service nature provided under section e in seeking support for the passing of the Motion, which contained the Reform Proposals in relation to the election method for the CE, is directly related to that government policy and the operational objective under that policy. In the premises, the Impugned Announcements clearly fall within Criterion t matter becomes a policy. Leading counsel accepts that the Government is of course entitled to formulate a policy in the ways it regards as appropriate where the subject matter and the carrying out of that policy does not require the endorsement or passing of laws by the LegCo. For example, the Government is entitled to formulate a policy that it is good for the public to clean Hong Kong and to promote and implement it. AUTONUMOUT However, in the present context, Mr . The word policy therefore means the general principles or objectives the Government has set to guide its administration of public affairs or its exercise of power in an identified area or subject matter. AUTONUMOUT As I mentioned above, it is generally in the public interest for the government to have a relevant policy in place, and to have it published to the public. That would give better transparency and a reasonable degree of certainty to the public as to how the Government is to carry out its functions and duties in an identified area of public affairs. AUTONUMOUT Once understood as such, there can be no reason in principle to limit the meaning of government policy to only those that can be successfully implemented or carried out, whether or not they require the endorsement or blessing of the LegCo. As observed by Hartmann s functions include considering bills and enacting legislation relating to those policies. AUTONUMOUT Take for example that the Government decides as a matter of policy in its administration of public affairs to discourage the general public from smoking. Its implementation may also partly include the Government seeking to introduce relevant legislations to ban or restrict smoking in public areas or at workplaces. The success or failure of having the legislations passed by the LegCo cannot then render it not a Government policy. AUTONUMOUT As the meaning of policy shows, in the present circumstances, it must be open to the Government to form the policy that, as a matter of its administration principles and objectives, it would seek to reform the CE election method in the ways it regards to be in compliance with what is permitted by the constitutional provisions and practical reality. The Government may well be correct or wrong in its views as to what that reform proposal should be, and the LegCo may disapprove that at the end of day under the 5 step process (as in the present case). It however would not then make it not a Government policy, albeit it is one that eventually cannot be implemented to the end. AUTONUMOUT In the premises, I agree with Mr in the present case. The Impugned Announcements in seeking to promote the Reform Proposals and asking the public to support it is directly related to the above policy and operational objectives. They therefore fall within the meaning of API under Criterion In this respect, I have concluded above that the Impugned Announcements are API. Further, I think it is fair to say there is no real dispute that they can be regarded as political in nature. AUTONUMOUT In the premises, central to these challenges is the question of whether the Authority has a statutory duty to vet the materials supplied by the Government through the ISD. AUTONUMOUT The Authority is a statutory body created under the Communications Authority Ordinance (Cap The question of whether the Authority has a duty to vet the materials supplied by the Government as API is thus a question of statutory construction. AUTONUMOUT In this respect, it is common ground that there are no express provisions in the CAO imposing such a statutory duty. AUTONUMOUT Mr o the exercise of power under the TO, the Authority in making a determination, direction or decision under this Ordinance, shall only do so on reasonable ground and having regard to relevant considerations. AUTONUMOUT The object and purpose of the CAO read together with the BMPO and the TO can therefore be clearly seen: under one umbrella regulatory authority, the Authority had a duty to secure proper standards of broadcasts, and when making any determination or direction to broadcasters, shall only do sary if the materials are API (but not otherwise). In the premises, as a matter of necessary implication, a public authority who has the power to direct that something must be done, is under a duty to take reasonable steps to acquire the information reasonably required to enable him to make that decision: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, at 1065b per Authority is only to act as a rubber stamp or post-box without any duty to examine whether the materials supplied are indeed API, one asks rhetorically what is the purpose of imposing the Authority in between in the first place? AUTONUMOUT Notwithstanding Mr so when there exists a detailed and extensively provisioned statutory framework. The court will only imply a statutory duty or obligation when it is clearly necessary to do so AUTONUMOUT Hence, on implying statutory duties, the learned editors of Craies on Legislation (10th impliedly created a statutory duty the courts will consider, in part, whether the system established by the Act can properly work without the implied creation of the duty and in part whether the provisions of the Act have provided, in effect, a system for the enforcement of the duty that gives it sufficient meaning... (emphasis added) AUTONUMOUT Thus, as matter of general principle: Public bodies generally have no free-standing function but can only act according to statutory terms giving them power: R that the present regulatory regime under the relevant statutory provisions in relation to TV and radio broadcast content is post-broadcast and complaint driven. There is no pre-censorship of broadcast material by the Authority of any kind (whether Government supplied or not). AUTONUMOUT This approach has indeed been codified and publicised through the relevant Codes of Practice for TV and Radio issued under section Court for pre-broadcast prohibition orders against the most objectionable forms of content: materials likely to incite hatred against racial or other specified groups, result in a general breakdown of law and order, or gravely damage public health and morals. AUTONUMOUT Further, as rightly pointed out by Mr st content risks stifling editorial independence and free expression and limits a broadcaster s ability to respond quickly to current affairs. From the Authority s perspective, a pre-vetting duty would also impose an unworkable burden, since the volume of materials broadcast across TV and radio on any given day is immense. Even if one is looking at API materials alone, these usually exceed 150 in any given week. AUTONUMOUT All this accounts for, and in turn is reinforced by, the mechanism expressly pr show a legislative intent that: the Government will supply materials to licensees for broadcasting; complaints about such materials should be handled on a post broadcast basis (consistent with the approach to be adopted to all other broadcast materials); and the Authority has no role to play in the scrutiny of such materials, whether pre- or post broadcast. AUTONUMOUT Mr the issue at hand is whether the Authority has a pre-vetting duty as a matter of necessary implication. Assuming there is a properly functioning post-broadcast complaints mechanism (which the applicant does not dispute), there is no basis for claiming that the absence of a pre-vetting regime must be contrary to the statutory intention or otherwise unlawful. AUTONUMOUT Further and in any event, the Authority s proper role as regards Government supplied materials is administrative and facilitative. The s APIs and the role of the ISD 42. As the licence condition requiring Free TV, Pay TV and Radio Licensees to broadcast APIs supplied by the Government was imposed by the CEIC, the CA issues General Directions to each of the Free TV Licensees, Pay TV Licensees and Radio Licensees requiring them under the terms of their respective licences, to broadcast APIs in accordance with schedules provided by the ISD. The CA has delegated its powers to handle matters relating to the General Directions to OFCA, the CA s executive arm. Copies of the General Directions in relation to such messages issued by the CA to the following licensees are included in tab 6 of the exhibit marked FK-1 : Licensee Type of licence Date of direction Exhibit FK-1 Tab 6 Page No. Television Broadcasts Limited Free TV 03.10.2001 05.11.2007 Asia Television Limited Free TV 03.10.2001 05.11.2007 Hong Kong Cable Television Limited Pay TV 03.10.2001 03.02.2005 PCCW Media Limited Pay TV 25.02.2015 9-12 TVB Network Vision Limited Pay TV 31.10.2013 13-15 Hong Kong Commercial Broadcasting Company Limited Analogue Sound Broadcasting Licence 03.10.2001 Metro Broadcast Corporation Limited Analogue Sound Broadcasting Licence 03.10.2001 Metro Broadcast Corporation Limited Digital Sound Broadcasting Licence 13.07.2011 18-27 Digital Broadcasting Corporation Hong Kong Limited Digital Sound Broadcasting Licence 13.07.2011 28-37 Phoenix U Radio Limited Digital Sound Broadcasting Licence 13.07.2011 38-47 43. The ISD is responsible for preparing for each licensee a schedule for the broadcast of the Government s APIs for the following week (the Broadcasting Schedule ). Every week, the ISD sends a copy of the Broadcasting Schedule directly to each of the Free TV, Pay TV and Radio Licensees. A copy of the Broadcasting Schedule is also sent to OFCA. An example of a Broadcasting Schedule is at tab 7 of the exhibit marked FK-1 . As OFCA understands it, the ISD also arranges for the corresponding video, audio and scripts of the APIs, to be sent to each of the Free TV, Pay TV and Radio Licensees directly through the production companies. The ISD is not required to, nor does it provide the video, audio and scripts of the APIs to OFCA. 44. The ISD conducts sample checks on the broadcast of the material it has supplied to the licensees to ascertain whether they are complying with the Broadcasting Schedules. Each month the ISD sends its findings to OFCA. If the ISD has identified instances of non-compliance with the Broadcasting Schedule, OFCA will seek an explanation from the licensee in question. If the non-compliance is confirmed, OFCA will usually request the licensee to provide additional API broadcasting slots as compensatory measures. The ISD will decide whether it agrees to the compensatory arrangement. If the ISD is content with the arrangements, it will send a schedule of the compensatory broadcasts directly to the licensee with a copy to OFCA for its information. 45. Accordingly, the CA plays only a facilitative role by issuing General Directions to Free TV and Pay TV and Radio Licensees, requiring compliance with the licence conditions imposed by the CEIC, to implement the Government s policy requirement that licensees broadcast, without charge to the Government, material supplied by the Government including the Government APIs. A copy of an example of correspondence passing between the CA, a licensee and the ISD is at tab 8 of the exhibit marked FK-1 AUTONUMOUT Mr f a TV licence, show that one of the principal functions of the Authority in relation to the broadcast of API is to direct the broadcaster as to the time, period, channel, language and whether within or without such programme these materials should be broadcast. This is not an insignificant role and task, and is one which is commensurate with its role as a regulator. AUTONUMOUT In the premises, there is no basis for contending that the regulatory system under the BO, the TO and the BMPO cannot properly work absent such an implied duty. In other words, it is not necessary to imply such a pre-vetting duty on the Authority in order to make the regulatory system work. AUTONUMOUT Second, the legislative history shows that the Administration and legislature had consciously decided against a pre-vetting regime in this context: The now defunct Television Ordinance (Cap hvs4 wng\ hZ\# hf:V hvs4 hZ\# hHPg h{D h{D h}(} h{D h{D h{D h}(} h}(} h}(} h}(} h}(} h}(} h aS hx/& hs@} hs@} hs@} hs@} hs@} h+-: hwh^ hwh^ h+-: h+-: hwh^ h$&8 hwh^ hwh^ hT%k h$&8 h+-: hwh^ hwh^ hT%k h+-: hwh^ hwh^ h$&8 h$&8 h+-: h$&8 h$&8 h+-: hT%k hT%k hT%k h$&8 h+-: h+-: h$&8 h+-: h+-: h$&8 h$&8 h$&8 h$&8 h$&8 h$&8 hZ6T h$&8 h$&8 h$&8 hZ6T h$&8 h$&8 hZ6T h/]i h$&8 h$&8 hZ6T hpVw h0X. h0X. h0X. h0X. h0X. h0X. h0X. hZ6T h?)E h?)E h?)E hZ6T hZ6T hZ6T hZ6T hZ6T h?)E h?)E h?)E hZ6T hZ6T hO>/ hZ6T hZ6T hZ6T hZ6T hO>/ hZ6T hZ6T hO>/ hO>/ gd; hZ6T hZ6T 5 D S & hZ6T hZ6T h/=d hO>/ h}BG h}BG h}BG h/=d h/=d h/=d hwqC hM!$ hM!$ hM!$ hMe7 hMe7 h -\ h}BG hMe7 h -\ hShg hShg h -\ h -\ h -\ gde@ vncvcncXcncXcn hN,6 gde@ gd -\ gd -\ gdgJ gde@ {s{s{s xpepxXx h -\ h -\ h -\ h -\ h -\ hM!$ h -\ h -\ h -\ h -\ odXO &`#$ ovojdvo [Content_Types].xml _rels/.rels theme/theme/themeManager.xml K Y, sQ}# theme/theme/theme1.xml $O}) Xp90 +PHI| PP yu 9xu5 fs+W VF7H q=. 8}d- qyI@ j!Q_ jyV` |PZ+ T ""p < 4V O&x$ A8>v ;EUC n 8r *~P(5 .}x E /,EE\} theme/theme/_rels/themeManager.xml.rels 5 6?$Q K(M&$R(.1 [Content_Types].xmlPK _rels/.relsPK theme/theme/themeManager.xmlPK theme/theme/theme1.xmlPK theme/theme/_rels/themeManager.xml.relsPK <?xml version="1.0" encoding="UTF-8" standalone="yes"?> <a:clrMap xmlns:a="http://schemas.openxmlformats.org/drawingml/2006/main" bg1="lt1" tx1="dk1" bg2="lt2" tx2="dk2" accent1="accent1" accent2="accent2" accent3="accent3" accent4="accent4" accent5="accent5" accent6="accent6" hlink="hlink" folHlink="folHlink"/>V ['n K ZP~ a>}] ;v9t m\-~ ;v9t a>}] m\-~ 8\ a 8\ a CACV Jeannie MY MokSo ABC.dot Sai Yan Yip Microsoft Office Word Judiciary CACV Title <?xml version="1.0" encoding="UTF-8" standalone="no"?><b:Sources SelectedStyle="\APA.XSL" StyleName="APA" xmlns:b="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" xmlns="http://schemas.openxmlformats.org/officeDocument/2006/bibliography"></b:Sources> <?xml version="1.0" encoding="UTF-8" standalone="no"?> <ds:datastoreItem ds:itemID="{0788A103-7FAC-4409-B73E-811C09D9F5D2}" xmlns:ds="http://schemas.openxmlformats.org/officeDocument/2006/customXml"><ds:schemaRefs><ds:schemaRef ds:uri="http://schemas.openxmlformats.org/officeDocument/2006/bibliography"/></ds:schemaRefs></ds:datastoreItem> Microsoft Word 97-2003 Document MSWordDoc Word.Document.8