BREAKING NEWS: Hong Kong court orders Exco to reconsider HKTV licence denial

I wanted to share this right away because I couldn't contain my excitement!  Congrats to HKTV for winning the judicial review!!

Now let's see if they actually get a license...

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BREAKING NEWS: Hong Kong court orders Exco to reconsider HKTV licence denial

Source: SCMP

A High Court judge on Friday ordered the Executive Council to reconsider its decision to deny a the free-to-air TV licence to Hong Kong Television Network (HKTV) in October 2013 after ruling that the government had failed to follow the policy that stipulates there should be no limit on the number of broadcasting licences issued.

Mr Justice Thomas Au Hing-cheung allowed the judicial review launched by HKTV and claimed the government’s decision failed to take into account the legitimate expectation to the television station with regard to any changes in policy.

He quashed the government’s decision and remitted it back to the Chief Executive in Council (CEIC) for reconsideration.

“The CEIC should have regard and take into account the policy as constructed in this judgment and HKTV’s legitimate expectation,” Au wrote in the judgment.

Au said the government had effectively decided that “there should be a limit of no more than two licences that could be granted”.

He found the government considered and ranked which of the three applicants should be granted a licence.

“The decision is therefore in my view made not in adherence to the policy,” the judge wrote.

The judge also found that if the government wanted to change the policy, it could only do so lawfully by taking into account the legitimate expectation of the parties involved, and to publicly justify its course of action.

“The government had failed to do so in making the decision … and in any event [it] had not given any reasons for why [it] decided to change the policy” the judge wrote.

He found HKTV had a legitimate expectation that its licence application would not be rejected simply because there was a pre-set number of licences to be granted.

HKTV shares closed at 4pm on Friday 10 HK cents higher, or 3.32 per cent, at HK$3.11 before the court news broke.

HKTV chairman Ricky Wong Wai-kay was jubilant over the ruling, saying he had popped open three bottles of champagne to celebrate.

He told reporters outside the station's office that not only did the judgment make HKTV staff happy; Hongkongers were also happy “because it shows Hong Kong has genuine rule of law”.

Wong called on the Chief Executive in Council to issue a free TV license to HKTV, so that Hong Kong people could enjoy high-quality free TV programmes.

"The most important thing now is that the court has handed down the judgment and the Chief Executive in Council should, according to law and the judgment, reconsider its decision and reach a conclusion that will make most Hong Kong people happy,” he said. 

The government announced on October 15, 2013 that it would award licences to channels run by established players PCCW and iCable, but not HKTV.

HKTV argued that the decision was unfair, citing the government’s 1998 policy that says the broadcast market would be open to fair competition with no limit on the number of licences available.

The station argued that the Chief Executive in Council had failed to seek the views and recommendation of the Communications Authority and failed to provide adequate reasons for the decision to refuse HKTV a licence.

The company said it was deprived of the chance to amend its application and had no opportunity to address in substantive terms the new approach of the government.

HKTV’s lawyer also claimed Secretary for Commerce and Economic Development Greg So Kam-leung had said that the Broadcasting Authority – since renamed the Communications Authority – would recommend approving all three bids in March 2013.

But two months later, Chief Executive Leung Chun-ying raised concerns about market competition at an Executive Council meeting, and the body eventually decided to only award two licences.

The government had argued that it had the discretion to decide which broadcasting operators should receive a licence and there was no unfairness in refusing HKTV’s application.

It claimed the Broadcasting Ordinance granted statutory powers to the Chief Executive in Council to make the final decision on the licensing issue. It said it had to consider the public interest and that it was reasonable for the body to adopt a “gradual and orderly approach” to issuing licences.

The court heard previously that the HKTV boss was the first to apply for a free-television licence, on December 31, 2009. That was followed by iCable Communications and PCCW subsidiary HK Television Entertainment the following year.