15 comments on “HKTV failed to obtain a free to air TV licence. Is there any mistake made by the government during the decision making process? Can judicial review be a resort to the problem?

  1. Thank you for bringing up the topic of issuing the free air TV license which is highly controversial in Hong Kong.
    It is obviously that the Chief Executive is granted the right to make final decision according to the Broadcasting Ordinance. As stated in the Broadcasting Ordinance, the Chief Executive has the authority to issue the license to whom he thinks suitable after hearing the recommendation from the Authority.
    Personally, the Broadcasting Ordinance is needed to be amended. As the power and the authority of the Chief Executive have not been bound under the Broadcasting Ordinance, he can make his own decision without considering the professional report. Thus, it is the time we should reconsider to what extent the Chief Executive can override the decision of the think-tank or the authority and to what extent the information should be kept in secret.
    Moreover, with the guidance provided to the applicants of the free air TV license, the government should have no doubt to follow the guidance strictly when considering the applications. Although the government is allowed not to publicize the reason of not issuing the license in order to protect the prudential information, it is good for improving the reputation of the government if an explanation is given to the public.

  2. Although Hong Kong Television Network (HKTV) was given the mobile TV licence in the end and is able to launch broadcasting services on July 1, 2014, it does not mean we can leave the matter of granting free-to-air TV license aside.
    The government did give an explanation on its decision to turn down HKTV’s free-to-air licence but it is insufficient and ridiculous. Lack of financial support from a parent company was a major reason for the rejection of HKTV’s application for a free-to-air broadcast licence. Hong Kong is a believer of free market. If you survive, you can stay. If not, you will quit. How could the government say no to the prospect of HKTV when it is not even in service yet?
    In my opinion, the purpose of issuing more free-to-air TV licenses is to promote cultural and creative industries in Hong Kong. If having enough financial support is more important than having the passion and innovative ideas to contribute to the television industry, it is pathetic to an international city like Hong Kong. Unfortunately, this is exactly the situation we are facing now. Til now Asia Television Limited (ATV) can survive only because it has more than enough financial support behind. Without doubt this so-called “parent company” has loads of money to burn. No one is watching ATV but still it is operating. What is the government thinking? In recent years it seems the government is treating us like idiots, giving us meaningless and shallow explanations and expecting us to accept and compromise. I am sure there is not a single member in the Executive Council can give a valid reason why HKTV, which has done a lots of preparation work and invested billions of dollars in the past few years, would lose an entrance ticket to a fight while ATV can stay in the fight for years without doing anything.
    What is the point of the Communication Authority if after all what it said would just be treated as a recommendation to the Chief Executive? I think the relevant ordinance should be amended so that more power can be given to the authority to make decisions. But what’s more important is that if the government does not change its attitude to press freedom, a core value in Hong Kong, don’t expect to gain support from Hong Kong people anymore. It is meaningless to support a SAR government who works for the country rather than the city.

  3. Thank you for your post about the controversial issue on TV licensing.

    Macroscopically, I think everyone agrees with the idea that the Hong Kong government (or China) is trying to narrow down the scope of freedom of speech and enforce stricter control to the public media. Awkwardly, the government has a ridiculous “reason” to reject Ricky Wong’s application according to below news. It said the current TV market is not able to accommodate 5 television licence holders and extremely likely that one will fail– obviously ATV, with left-winger attitude in their “repeated” programmes. This contradicts to the principle of Hong Kong market– Survival the fitness. Ricky Wong claims to be a purely, political neutral businessman, tends to take the position of right-winger, is the main reason for his failure in my opinion. Regardless of his well preparation and huge financial and strong crew foundation for the application.

    Positive non-intervention has been the ideology held by HK government to its free market but is seems actually going to be a “past tense”. Not only on economy, but also political issue, freedom of speech and public media management. Not only the Broadcast Ordinance has to be review, but also the confidential agreement of the Executive Council. What are those committee members talking about actually?!

    Reference:
    http://www.scmp.com/news/hong-kong/article/1347762/tv-industry-still-divided-over-hktvs-licence-rejection

  4. Thank you for sharing this controversial issue to us.

    In my opinion, this issue shows the unfair of the application procedure of television license. Whether the license issue or not only depends on the decision of Chief Executive- Mr. Leung Chun Ying. Moreover, the whole procedure is lack of transparency. There are no official standards provided to the general public to show what the criteria of getting the television license are. On top of that, the government does not have the responsibility to explain to the public or the company why they are rejected. This can actually lead to a situation that the chief executive can make whatever decision he want without considering the opinions of the public or taking political reasons into considerations. Therefore, it is an injustice procedure.

    Moreover, I think the government does not have to worry about whether HKTV will go bankrupt or not. Like the government said, it is a business decision for HKTV to start producing TV programmes before they receive the license. Then, the government can just give them the licenses. If the company does not perform well, it goes bankrupt. It is also the responsibility of the company. The government does not need to worry that HKTV may go bankruptcy after they give HKTV the license.

    References:
    Free-To-Air TV License: Conspiracy, Scandal, Justice and More (Part 3)
    http://therealnewshk.wordpress.com/2013/10/18/free-to-air-tv-license-conspiracy-scandal-justice-and-more-part-3/
    TV licence row heads for court showdown as CY Leung refuses to budge
    http://www.scmp.com/news/hong-kong/article/1337341/tv-licence-row-heads-court-showdown-cy-leung-refuses-budge?page=all

  5. Thank you for your posting bringing up such a controversial topic worth discussion. The HKTV incident has risen up citizen’s concern on the way how the Hong Kong government grants licenses to potential media corporates. Without an explanation from the government on the reason behind the decision failing HKTV in the license competition, most of the citizens find the result not convincing at all. However as you have mentioned in your paragraphs, the court would only view the incident in a judicial review to prove if the decision made is valid or not, but it could not play the role to grant a license to HKTV or to overturn the result. In this, a question comes to my mind is that could our court do more on this other than just viewing on the judicial side?

    In Hong Kong, according to the Department of Justice from HKSAR government, legality and equality before the law are the two fundamental facets of the rule of law, with the courts’ independence of the executive. The rule of law is defined as a system of rules which restrict discretionary power. To judge whether the decision made by the government is valid or not in terms of judicial view is functioning on its legality basis. Nevertheless, it is obvious that the court could not function on its equality basis in this incident. I believe that based on the rule of law in Hong Kong, the court has the responsibility or the right to ensure or prove that the granting process is fair and equal to all companies. Facing the consideration process said to be classified, the court told nothing about requesting the government to publicize the evaluation documents. To ensure the equality and fairness of the valuation process, I think the court should own the right to request government to hand in the documents to prove the fairness in it. If our court remains to take only the role functioning on legality basis, the government and the whole legal system would not be able to convince Hong Kong citizens anymore.

  6. Thank you for bringing up this controversial issue in the blog. I agree with your opinions that the government still cannot provide a valid reason for which they rejected to grant a license to Hong Kong Television Network Limited.

    As you stated in your post above, Chief Executive just ignored the recommendations from the Communication Authority and also the preference of Hong Kong citizens. Hong Kong citizens did a lot for supporting HKTV. For instance, more than four hundred and ninety thousand people clicked “like” for the Facebook page of requesting government to grant a license to HKTA. Besides, some Hong Kong people had demonstration against the decision of the government.

    In my opinions, watching television is an everyday and irreplaceable activity for citizens to relax after working for whole day. Therefore, government should represent the citizens to make a decision rather than ignoring all opinions from citizens. In other words, it is citizens’ freedom to choose the TV programme that is the most suitable for them. From this issue, I think the government is narrowing the freedom of Hong Kong citizens, one of the core values of Hong Kong.

    Reference:
    http://inews.mingpao.com/htm/INews/20140220/ma41745m.htm

    https://www.facebook.com/supporthktv

  7. Thank you for bringing up such a controversial topic!

    Indeed, it is quite ridiculous for the failure of HKTV to obtain a TV licence, provided that it has met all the criteria listed by the government for broadcasting companies.This decision has led to discontent of some citizens in which protest has been taken place and Facebook page has also been set up for people to support HKTV. This is mainly due to the lack of transparency of the procedures. No one, (except the council members may be), knows the reason of HKTV being rejected, and this in fact harms the credibility of the government as some people may be unsatisfied and think that why those council members represent them.

    To improve the situation, the government should provide a clearer guidance of the Ordinance as well as the criteria to the public, as it is believed that watching TV is an indispensable part of daily activities for most of the HK citizens. I understand that the council may have to follow the confidential rules, but I believe that the proposer of the licence, here, Mr Ricky Wong, has the right to know the reason for being rejected, so he can correct the mistakes and apply for the licence again. On top of this, longer consultation period from the public is undoubtedly needed as watching TV is highly related to the public.

    I sincerely hope that the decision is not a method for the government to narrow the freedom of speech, (because HKTV may have some programmes on relatively controversial topics). Recently, there are so many negative incidents from the media industry, I hope that the government can treasure the core values of Hong Kong – the freedom of speech and press.

  8. Thanks for your detailed analysis on the issue of granting licence to HKTV.

    I agree with your point of view that our chief executive ignored the preference of majority of hk citizens and this is a irresponsible behaviour.

    Watching television is a major and important entertainment of hk citizens and the licensing of TV can have a great impact on hk citizens’ lives. Therefore the opinions of majority of hk people should definitely be taken into account of licensing of tv channel.

    In conclusion, i think government should give public a concrete , clear and justifiable reason for rejecting the licensing to HKTV.

    References:
    Free-To-Air TV License: Conspiracy, Scandal, Justice and More (Part 3)
    http://therealnewshk.wordpress.com/2013/10/18/free-to-air-tv-license-conspiracy-scandal-justice-and-more-part-3/

  9. Dear Peter,

    Thank you for your sharing of this controversial news. I feel ashamed that the judicial review cannot help justify the issue and make it fairer. Supposedly, Hong Kong prides itself on being a rule-based society that attract investors from all over the world; however, it cannot show the importance and the use of law in this case, resulting in failure to uphold the principle and damage of investor confidence.

    Moreover, all the factors support HKTV obtaining the free to air TV licence. The free market strategy letting the three TV companies to compete and at the same time can improve the quality of TV programs. On the other hand, Some reports have also said the chief secretary, financial secretary, secretary for justice and certain Executive Council members supported the issuance of three licenses instead of two, as opposed to the Chief Executive (CE) Leung Chun-ying. Without an acceptable reason from the CE, the public believed there must be some reasons behind which is related to the China government so as to prevent further freedom of speech in Hong Kong.

    In my opinion, the government should provide a reasonable rationale on the shocking decision, otherwise, it is not fair to the public, to every staff in HKTV and to the law. The government needs to come up with a sensible solution in order to quell the storm, restore public order and maintain investor trust.

    References:
    Clear picture on HKTV license dispute, China Daily
    http://www.chinadaily.com.cn/hkedition/2013-10/31/content_17070283.htm

  10. Thank you for the blog post!

    I want to address my viewpoints about the confidentiality system of the Executive Council. According to Mrs. Carrie Lam, the Chief Secretary for Administration, the purpose of implementing confidentiality system in the Executive Council is “ensuring that ExCo members can speak freely and honestly without any pressure when giving advice to the CE. It also enables the CE to listen to different views when assessing the pros and cons of policies.”

    Nevertheless, explaining reasons of the decisions, which always affect the public interest, made by the Executive Council does not violate the confidentiality system. It is because the reasons disclosed reflect the opinion of the entire Executive Council, but not the one of a particular ExCo member. The Exco members can still give their advice to the Chief Executive freely with disclosing the reasons to the public.

    “Right to know” is one of the essential elements of maintaining a high transparency in Government. I hope the government protects the “right to know” of Hong Kong people and does not cover-up anything related to public interest with the confidentiality system in the Executive Council.

    Reference:
    LCQ19: Confidentiality system of the Executive Council
    http://www.info.gov.hk/gia/general/201311/27/P201311270647.htm

  11. Thank you for bringing out this topic, which was once a very hit one several months ago. It is a good and easy to understand example of which the limitations of judicial review is illustrated. While the majority of the public has little knowledge in the rights and wrongs of the government and the scope of the judicial sector, it is good to discuss whether the government has done a legitimate decision and recall the limitations of judicial review, based on this particular issue.

    On the other hand, there are some points that I would like to bring out for the blog post to be even better and comprehensive. For readers that are not very familiar with this issue, it might be better if you can explain, while HKTV has followed the guidance and met the criteria listed by the government for broadcasting companies, whether the other two have achieved these as well, and whether the other two have done better jobs or not. Also, you may want to explain a bit on the point “it is because the Chief Executive was not obliged to seek the consent of the regulator before making a decision on behalf of Exco” and why it is an unaccountable move. It might be a bit confusing while it seems important in the flow of your post.

    Last but not least, though difficult, it would be lovely if there are any recommendations and suggestions by the experts on improving the license granting system and the judicial system, or how to empower the communication authority to help government makes legitimate and sustainable decisions, if possible. This would make your blog post even better!

  12. Thank you for your blog post. This has been a very controversial issue recently.

    As stated by your blog post, judicial review may not be a mean to get the license. However, if HKTV won this case, this could clearly destroy Chief executive’s reputation.

    I think your post proved another phenomenon that when the government does not have “governmental authority, no matter what they do, it will be facing many negative voices. I believe that some of the issues or decision made by the council meeting should not be released to the public since some of the issues are commercial. However, the government without governmental authority will be questioned a lot.

    We are so disappointed about the Chief Executive’s reaction after so much criticism on this issue. The harder he tried to confine this issue, the more speculations. People start to relate this issue to more political side to Mainland China, which worsen the relationship between the Hong Kong people and the Mainland China. Also, this may lead to more anti-government action afterwards. This may be the result of low governmental authority.

  13. Thanks for this great blog post that reminds me the campaign to press the government to fully explain on the failure of HKTV to obtain a license does not over.

    Ricky Wong Wai Kay originally submitted the application in 2009 and it was generally believed that the application would probably success as HKTV is the most ambition and famous among its competitors. And actually the Communication Authority did propose in 2011 that three licenses should be issued. However, the government suddenly reject the to grant the license to HKTV last year. I believe that this implies there was a change of the game rules after the new government had
    formed. In my opinion, if there was a change of criteria, all the bidders should be well informed and time should be given to them to make changes. Suddenly change the licensing policy to rule out a candidate whom the government not favors, would only set a bad example to investor with large scale investment from overseas.

    Moreover, since the reject of granting license to the HKTV is largely different from the expectation of the general public, the ruling power of the government is likely to be declined if the criteria is not published.

    Reference:
    HKTV loses license bid despite hype
    http://www.chinadailyasia.com/news/2013-10/16/content_15092921.html

  14. Thank you for posting.

    I agree that government is owing people a explanation that why is HKTV failed to obtain the air TV license. In my opinion, the result is completely a political consideration, not in terms of the competitivenesses and the quality of the programs of 3 applicants.

    First of all, in the incidence, Hong Kong Government did not make decision based on the consultant’s report. A lot of information leaked out from the executive council saying that in terms of quality of the programs, competitivenesses, HKTV came first out of the 3 companies. Secondary, Ng Pui-Ying, the consultant in charged of the free TV license, said that the result was really not reasonable, before her resignation. All of these shows that according to the consultant’s report, HKTV should be approved for the license. Obviously, government intended to not give the license to HKTV. However, the reason behind is still unknown. It may due to political reason. Wong Wai-Kay, the founder of HKTV is famous of doing brave things. Government may think that it will be a threat to them if they give the license to HKTV as HKTV may expose bad news of government.

  15. Hi Peter,

    Thanks for your post on HKTV issue. You have provided much information on it. I would like to have more elaboration. This issue has stirred up much discussion. It is mainly because of the lack of transparency and consistency of the government.

    Firstly, the government used confidentiality of Council meeting as an excuse for not telling the public the reason not giving HKTV a license. Public poll results actually showed that most of the citizens supported granting licenses to HKTV. The government neglected the voice of its citizens. If the government treasures public opinion or it has strong reasons not giving HKTV a license, it should inform the public the reasons. As it has very low transparency, the public became dissatisfied and many people went on protest. Secondly, the government promised to grant three licenses at first but did not do so at last. These factors made the public suspect that it is due to political reasons.

    I think that the government should put public interest on higher priority. The public had fed up with the limited TV programs offered by TVB and ATV and they hope to have more choices. Among the three applicants, HKTV has the most support but it failed. The government really owes the public an explanation. If it does not do so, it will lose its credibility and support of the public.

    Reference:
    1. The Epoch Times. (2013). LegCo Refuses to Investigate HKTV License Denial. Retrieved from http://www.theepochtimes.com/n3/359982-legco-refuses-to-investigate-hktv-license-denial/

    2. China Daily Asia. (2013). HKTV loses license bid despite hype. Retrieved from http://www.chinadailyasia.com/news/2013-10/16/content_15092921.html

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