CHO MAN KIT v. BROADCASTING AUTHORITY

CHO MAN KIT v. BROADCASTING AUTHORITY

The court quashed the Authority's determination insofar as it found the RTHK programme breached impartiality because that finding rested on a misinterpretation of the code and was materially influenced by discriminatory reasoning targeting homosexuality; the court upheld that the Authority's conclusion that the programme was unsuitable for family viewing hours was lawfully open to it; the Authority acted pursuant to the memorandum of understanding (not ultra vires) and it was wrong to assert it was functus and incapable of revisiting its determinations.

Citation
CHO MAN KIT v. BROADCASTING AUTHORITY
Parties
Applicant: Cho Man Kit; Respondent: Broadcasting Authority
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 May 2008
Case Number
HCAL69/2007
Procedural Posture
Judicial Review (constitutional and Administrative Law) / Judgment on Judicial Review (final)
Outcome
Order of certiorari quashing the Authority's determination (in part); declaratory relief that the Authority was wrong to say it had no power to revisit its determination; order nisi for costs to applicant.
Legal Topics
Freedom of Expression, Discrimination Based on Sexual Orientation, Impartiality in Broadcasting, Family Viewing Hours, Ultra Vires, Judicial Review, Memorandum of Understanding
Source Language
EN
Constitutional Law Administrative Law Broadcasting Regulation Equality Law Human Rights Freedom of Expression Discrimination Based on Sexual Orientation Impartiality in Broadcasting +4 more

Case Brief

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Parties

Cho Man Kit

Applicant

Broadcasting Authority

Respondent

Procedural Posture

Judicial Review (constitutional and Administrative Law) / Judgment on Judicial Review (final)

Legal Issues

  1. 1 Whether the Broadcasting Authority acted ultra vires in determining complaints about an RTHK programme under a memorandum of understanding
  2. 2 Whether the Authority's determination was discriminatory on the basis of sexual orientation
  3. 3 Whether the determination unlawfully interfered with freedom of expression

Ratio Decidendi

The court quashed the Authority's determination insofar as it found the RTHK programme breached impartiality because that finding rested on a misinterpretation of the code and was materially influenced by discriminatory reasoning targeting homosexuality; the court upheld that the Authority's conclusion that the programme was unsuitable for family viewing hours was lawfully open to it; the Authority acted pursuant to the memorandum of understanding (not ultra vires) and it was wrong to assert it was functus and incapable of revisiting its determinations.

Court Disposition

Order of certiorari quashing the Authority's determination (in part); declaratory relief that the Authority was wrong to say it had no power to revisit its determination; order nisi for costs to applicant.

Orders

  • Order of certiorari to bring up and quash the determination of the Broadcasting Authority made pursuant to the memorandum of understanding
  • Declaratory order that the Broadcasting Authority's decision that it had no power to revisit its determination was wrong in law