RADIO TELEVISION HONG KONG PROGRAMME STAFF UNION AND ANOTHER v. COMMUNICATIONS AUTHORITY

bjbj CACV 579/2021 and CACV 584/2021 (Heard Together) [2025] HKCA 121 On appeal from [2021] HKCFI 3497 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NOS 579 AND 584 OF 2021 (ON APPEAL FROM HCAL NO 1685 OF 2020) BETWEEN RADIO TELEVISION HONG KONG PROGRAMME 1st Applicant STAFF UNION THE HONG KONG JOURNALISTS ASSOCIATION 2nd Applicant and COMMUNICATIONS AUTHORITY Respondent ________________ (Heard Together) Before: Hon Poon CJHC, Kwan VP and Au JA in Court Dates of Written Submissions: 30 October 2024, 13 & 22 November 2024 Date of Decision: 6 February 2025 DECISION The Court: In this decision, we adopt the same abbreviations used in the judgment that we handed down on 4 September 2024 ([2024] HKCA 845) ( Judgment ). By the Judgment, we unanimously dismissed the Authority s appeal in CACV 579/2021. In respect of the applicants appeal in CACV 584/2021: it was unanimously allowed to the extent that the Judge s order that the Authority s finding on 1A of Chapter 9 of the Code in respect of Remark B stands, be set aside; that there be a declaration that the Authority s said finding cannot stand; and that there be an order of certiorari to remove into the High Court and quash the Authority s said finding; it was allowed by a majority to the extent that the Judge s order that the Authority s finding on 2(b) of Chapter 3 of the Code stands, be set aside; that there be a declaration that the Authority s said finding cannot stand; and that there be an order of certiorari to remove into the High Court and quash the Authority s said finding. The Authority now applies for leave to appeal to the Court of Final Appeal in both CACV 579/2021 and CACV 584/2021 on three questions said to be of great general or public importance pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance. Having considered the parties written submissions, we are of the view that the present applications can be properly disposed of without an oral hearing. We now hand down our decision. The three questions raised by the Authority are: 1. Question 1: As regards the duty of verification that is both (1) an inherent and concomitant part of the exercise of freedom of expression under Article 16 of the Bill of Rights (CA Judgment 55); and (2) required under 1A of Chapter 9 of the Generic Code of Practice on Television Programme Standards ( Code ) (CA Judgment 62), what is the proper approach to assessing a broadcaster s compliance with that duty? In particular: (1) In the context of satirical or other programmes involving a combination of factual content and artistic expression and/or personal views, what is the proper approach in determining the relevant factual content as opposed to content involving opinions or value judgments that the broadcaster is required to verify, and which the Authority as regulator must assess? (2) In determining whether there has been a failure to properly verify factual matters in the context of mass broadcasting, does the regulatory assessment require or allow the Authority to consider a range of plausible interpretations by the public (or a substantial segment of the same) as to what if any factual propositions are being conveyed and/or implied in the programme material, without resting on a single objective view on what the material conveys or insinuates? (3) In the context of judicial review of the Authority s assessment under 1A of Chapter 9 of the Code, what is the proper margin of judgment due to the Authority as regards its methodology and substantive conclusions in determining what elements of a programme constitute factual content, and whether there has been a failure to properly verify such content? 2. Question 2: In relation to satirical shows and material, and bearing in mind (1) any constitutional rights to free expression that may be engaged, and (2) the Authority s statutory duties in safeguarding the public interest in ensuring that public broadcasting reflects a sufficiently broad range of views, what is the proper approach to assessing compliance with 17(d) of Chapter 9 of the Code? In particular: (1) Does the duty under 17(d) merely focus (as 17(c) clearly does) on matters of process in programme production such that the step of extending an invitation to appear on a programme may be relevant and potentially decisive as to whether 17(d) has been complied with or is the duty one of result such that the Authority is entitled to focus on the actual content of the material under scrutiny, and to determine whether that material, as broadcasted, actually expresses a sufficiently broad range of views? (2) In the context of judicial review of the Authority s assessment under 17(d) of Chapter 9 of the Code, what is the proper margin of judgment due to the Authority in its methodology and substantive conclusions in determining whether a licensee has discharged its duty of ensuring viewpoint diversity? 3. Question 3: (being a question that would arise depending on whether the reasoning of the majority (Kwan VP and Au JA) or the minority of the Court (Poon CJHC) on whether RTHK breached 2(b) of Chapter 3 of the Code would be upheld on appeal), what is the meaning of social status for the purpose of 2(b) of Chapter 3 of the Code? In particular: (1) Is 2(b) of Chapter 3 of the Code intended to have a broader object than preventing discrimination as understood in the anti-discrimination/human rights context? (2) Does the term social status have a broader meaning which includes the position, standing or relative importance accorded to a person or group in society, instead of being confined to personal characteristics that are immutable or changeable only at unacceptable costs to personal identity? (3) Can one s profession constitute a form of social status for the purpose of 2(b) of Chapter 3 of the Code (as Poon CJHC found)? In relation to Question 1, as we understand the submissions of Mr Abraham Chan SC, for the Authority, he does not take any issue with what we have decided to be (1) the duty imposed on a broadcaster in complying with 1A of Chapter 9 of the Code; and (2) the correct general approach that the Authority should adopt in determining a complaint of breach of the same provision: see [62] [70] of the Judgment. His submissions, in substance, focus on various matters that might arise under that general approach to be adopted by the Authority in assessing the factual contents of a program in the context of 1A. However, as we have pointed out in the Judgment, the Authority had in fact failed to apply that approach to both Remark A and Remark B in determining if RTHK had breached 1A: see [72] [82] and [84] [87] respectively. In other words, those matters referred to by Mr Chan simply did not arise in the present case. They are academic and so is Question 1. In relation to Question 2, Mr Chan submits that a question of interpretation arises as to whether 17(c) and 17(d) of Chapter 9 are separate and independent requirements which must be met by different means, or whether the invitations to the police by RTHK are sufficient to comply with both paragraphs. We held that the Authority erred because, inferentially, it had failed to take into account the invitations, which are plainly relevant, in determining that RTHK had breached 17(d) of Chapter 9: see [88] [94] of the Judgment. It is a factual question which has nothing to do with any interplay between 17(c) and 17(d) as a matter of interpretation. It follows that the proposed question of interpretation did not arise in the present case. In any event, our holding is case-specific. It cannot give rise to any question of great general or public importance. In relation to Question 3, our different views on the demarcation between social status and conduct in the context of 2(b) of Chapter 3 are necessarily fact-sensitive to the present case. They do not give rise to any question of great general or public importance. In conclusion, the Authority fails to meet the threshold for leave to appeal to the Court of Final Appeal. We accordingly dismiss both applications. Costs should follow the event. We therefore order the Authority to pay the applicants costs of the applications, summarily assessed at HK$180,000. (Jeremy Poon) (Susan Kwan) (Thomas Au) Chief Judge of the High Court Vice President Justice of Appeal Mr Jeffrey Tam and Mr Andrew Lau, instructed by Ho, Tse, Wai & Partners, for the 1st and 2nd Applicants (Appellants in CACV 584/2021; Respondents in CACV 579/2021) Mr Abraham Chan SC and Mr Joshua Chan, instructed by Eversheds Sutherland, for the Respondent (Appellant in CACV 579/2021; Respondent in CACV 584/2021) Cap 484. Leading Mr Joshua Chan. 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