Executive Council rejected media tycoon Ricky Wong Wai-kay’s application in 2013
EDDIE.LEE@SCMP.COM
UPDATED : Wednesday, 06 April, 2016, 3:37pm
HKTV’s application has failed again. Photo: Nora Tam
Media tycoon Ricky Wong Wai-kay’s bid to get a share of the free-to-air television market fell apart again on Wednesday, as the Court of Appeal quashed a lower court’s decision to have his licence application reconsidered.
The three-judge appellate court unanimously overturned a Court of First Instance ruling that the Executive Council had failed to follow the pro-competition 1998 reform – banning preset limits on the number of licensees – when it rejected the application by Wong’s Hong Kong Television Network.
In his latest ruling, Chief Judge of the High Court Mr Justice Andrew Cheung Kui-nung said the Broadcasting Ordinance “implicitly requires the Chief Executive in Council to take into account all relevant public interest considerations when exercising his discretion to grant or refuse an application for a domestic free television licence”.
Cheung said market sustainability was a highly relevant consideration.
“There is a world of difference between a pro-competition policy and a policy that turns a blind eye to cutthroat or vicious competitions,” the judge said.
“The closure of a domestic free television station in Hong Kong is a matter of some significance affecting directly or indirectly many people if not the entire viewing public,” said Cheung, noting that the recent closure of 59-year-old Asia Televisionhad caused “some ripples” in society.
The decision is another setback for HKTV chairman Ricky Wong Wai-kay. Photo: Felix Wong
He said the Executive Council had not departed from the government’s general policy statements.
“I can see no mutual inconsistency between a policy of no preset or artificial limit on the number of licences to be granted and granting such licences in a gradual and orderly manner over a period of time,” said Cheung.
“Vicious competition in the domestic free television market is not a matter to be taken lightly,” he said.
Cheung said the Court of First Instance had adopted an “unduly narrow approach” to the reading of the broad policy statements involved in the case.
In 2013, the council rejected HKTV’s licence application, contending that the local TV market could not support more than two newcomers. Only iCable’s Fantastic TV and PCCW’s HK Television Entertainment Company, also now known as Viu TV, were granted a licence in the bid.
Cheung added that the Executive Council is not required by law to heed the recommendations of the Communications Authority, which had advised that all three applications be approved.
“What the Chief Executive in Council was entitled to do – including referring the matter back to the [Communications Authority] ... for further consideration and advice – and what he was, as a matter of law, required to do, are two different matters,” Cheung ruled.
HKTV won in a judicial review of the council’s decision last year at the Court of First Instance. The council therefore filed the latest appeal.
Cheung awarded costs of the appeal to the Executive Council.
Speaking at a special Finance Committee meeting on the government’s budget for broadcasting and creative industries at the Legislative Council, Secretary for Commerce and Economic Development Greg So Kam-leung said he welcomed the court’s decision.
“[We] will study the judgment and continue to implement established broadcasting policies, in order to bring quality programming for the public to choose from,” he said.
Additional reporting by Owen Fung
http://m.scmp.com/news/hong-kong/politics/article/1933981/court-appeal-quashes-lower-courts-ruling-hktvs-licence
