Court of Appeal quashes lower court’s ruling that HKTV’s licence application be reconsidered
Appeal judges reject lower court’s decision that Exco should reconsider application
Media tycoon Ricky Wong Wai-kay’s long-running battle to secure a share of the free-to-air television market suffered another setback yesterday 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.
HKTV said it was disappointed by the decision and was considering an appeal at the city’s top court.
In the latest ruling, chief High Court judge 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”.
The judge said market sustainability was a highly relevant consideration.
“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,” he said.
He concluded that Exco 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,” Cheung said.
“Vicious competition in the domestic free television market is not a matter to be taken lightly.”
The judge 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, Exco 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, now known as
ViuTV, were granted licences.
Cheung added that Exco was 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 [Authority] ... for further consideration and advice – and what he was, as a matter of law, required to do, are two different matters,” Cheung ruled.
