CACV 579/2021 and CACV 584/2021 (Heard Together)

[2024] HKCA 845

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)

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(Heard Together)

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J U D G M E N T

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Hon Poon CJHC:

1. In these appeals, [1] it falls upon this Court to determine the application of §§1A and 17 of Chapter 9 and §2(b) of Chapter 3 of Generic Code of Practice on Television Programme Standards (“the Code”), issued by the Communications Authority (“the Authority”), to an episode of Headliner produced by RTHK and aired on 14 February 2020 (“the Episode”). The background facts may be summarised as follows. [2]

A. Background facts

A1. The Authority

2. The Authority is an independent statutory body established on 1 April 2012 under the Communications Authority Ordinance (“CAO”). [3] Taking over all statutory functions and responsibilities of the former Broadcasting Authority and Telecommunications Authority, its role is to regulate the broadcasting and telecommunications industries in Hong Kong in accordance with the Broadcasting Ordinance (“BO”), [4] the Telecommunications Ordinance, [5] the CAO and the Broadcasting (Miscellaneous Provisions) Ordinance (“BMPO”). [6] It consists of eminent members of the public from diverse background representing a cross-section of society. [7]

3. Pursuant to sections 4(1) and (1A) of the CAO, the Authority has all the functions conferred on it by or under the BMPO and all functions conferred on the Telecommunications Authority by or under the BO. Section 9(1) of the BMPO empowers the Authority to secure proper standards of television broadcasting with regard to, among other things, programme content. To that end, section 19(1) of the BMPO enables the Authority to issue codes of practice relating to standards of programmes broadcast by a licensee. Similarly, section 3(1) of the BO confers on the Authority the power to approve and issue codes of practice for the purpose of providing practical guidance for licensees in respect of any requirements under the BO imposed on licensees or in respect of licence conditions. Pursuant to section 3(8) of the BO, [8] the codes of practice on broadcasting standards have been developed over the years after consultation with stakeholders in the industry including RTHK. The Authority has established the Broadcast Codes of Practice Committee to assist in the performance of its functions relating to codes of practice. The Authority first i