Hong Kong Administrative Law — Court of Appeal dismisses the Communications Authority’s appeal against RTHK’s satirical programme “Headliner”
In RTHK Programme Staff Union & Anor v Communications Authority [2024] HKCA 845, the Court of Appeal (“CA”) overruled the findings of the Communication Authority (“Authority”) against the longest running satirical show in Hong Kong, Headliner, which was produced by the public broadcaster Radio Television Hong Kong (“RTHK”). Jeffrey Tam and Andrew Lau represented the successful applicants, i.e. RTHK Programme Staff Union (“Union”) and The Hong Kong Journalists Association (“HKJA”).
Background
The case involves an episode (“Episode”) of Headliner, which aired on 14 February 2020. The Episode included two satirical comedy sketches:-
(1) “無品芝麻官”, wherein a doctor (played by one of the programme hosts) debated with another character about medical staff who had taken industrial action. Amongst other things, the doctor remarked that the medical staff took industrial action because they lacked personal protective equipment (“PPE”), to which the other character responded: “醫生呀, 你唔夠口罩就早啲出聲吖嘛, 衙差就大把有得剩” (translated as “Doctor, you should voice out your concern early if you do not have enough face masks, as there is a lot of surplus stock for constables”) (“Remark A”).
(2) “驚方訊息”, wherein the host “忠勇毅”, played by the actor Wong He (“Wong”), who was dressed in police uniform and with his hands and neck wrapped in rubbish bags, emerged from a rubbish bin on the rooftop of a building and remarked, amongst other things: “依家仲取消徒步巡邏, 唔使行咇, 將當值時暴露喺空氣中嘅機會, 減到近乎零呀!” (translated as “Beat patrols have now been abolished, thus reducing the chance of exposure to open air to nearly zero while on duty”) (“Remark B”) and “趕緊加入我們” (translated as “Urgently join us”) (uttered in Putonghua), and then retracted back into the rubbish bin (“Police Comedy Sketch”).
The Episode attracted criticisms and complaints by the Police and a total of 3,304 complaints by the public.
On 19 May 2020, the Authority issued its final decision (“Final Decision”) concluding that RTHK had breached various provisions of the Generic Code of Practice on Television Programme Standards (“Code”). As a sanction of the breaches, the Authority warned RTHK to observe more closely those provisions of the Code.
On 19 June 2020, RTHK suspended the production of Headliner with no indication that it would be revived in the future.
Proceedings Below
In the Court of First Instance, the Union and HKJA (represented by Jeffrey Tam and Andrew Lau, led by Johannes Chan SC (Hon)) challenged the Final Decision on three broad grounds: (1) misrepresentation or misapplication of the provisions of the Code; (2) unconstitutional interference against their fundamental right to freedom of expression; and (3) Wednesbury unreasonableness.
Chow JA (then sitting as an additional CFI Judge) partially quashed the Authority’s Final Decision, and relevantly held as follows:-
(1) The Authority was correct in law to treat the Episode as a personal view programme (“PVP”), thus bringing the Episode within the scope of the Code.
(2) The Authority’s finding that RTHK breached §17(b) of Chapter 9 of the Code involved an error of principle. §17(b) provides for the requirement that “facts must be respected and the opinion expressed, however partial, should not rest upon false evidence”.
(3) The Authority’s finding of breach of §1A of Chapter 9 of the Code by RTHK in respect of Remark B stood but not Remark A. §1A stipulates that “licensees shall make reasonable efforts to ensure the factual contents of…[PVPs]…are accurate.”
(4) The Authority’s finding of breach of §17(d) of Chapter 9 of the Code could not stand. §17(d) states “licensees should be mindful of the need for a sufficiently broad range of views to be expressed in any series of [PVPs].”
(5) It was reasonably open to the Authority to make a finding on §2(b) of Chapter 3 of the Code. Under §2(b), a licensee should not include in its programmes, including PVPs, “any material which is…considered to be denigrating or insulting to any person(s) or group(s) on the basis of…social status.”
(6) The applicants did not have standing to mount a constitutional challenge.
Thereafter, the parties lodged their respective appeals against the Judge’s findings.
The Present Appeal
Five issues were dealt with by the CA:-
(1) Did the Authority correctly classify the Episode as a PVP within the meaning of §17 of Chapter 9 of the Code? (Issue 1)
(2) If yes, in relation to both Remarks A and B:-
(a) Did the Authority correctly find that RTHK had acted in breach of §1A of Chapter 9 of the Code? (Issue 2)
(b) Did the Authority correctly find that RTHK had acted in breach of §17(d) of Chapter 9 of the Code? (Issue 3)
(3) Did the Authority correctly find that RTHK had acted in breach of §2(b) of Chapter 3 of the Code by including in the Police Comedy Sketch material which is denigrating or insulting to the Police on the basis of social status? (Issue 4)
(4) Can the applicants mount the constitutional challenge? (Issue 5)
Issue 1
The CA unanimously held that the Judge was correct in classifying the Episode as a PVP within the meaning of §17 of Chapter 9 (§§48, 110 and 130):-
(1) §17 defines PVPs as “programmes in which the person providing the service (which is RTHK in the present context) and/or the programme hosts and/or, sometimes, individual contributors put forward their own views.” (§45)
(2) Applying Strasbourg jurisprudence, a satire contains value judgments of the individual who makes the satirical statement or expression, which necessarily represent his personal views. As such, a satire falls within the scope of the genre of PVPs in §17. Put differently, when construed with reference to the Strasbourg jurisprudence, the term “PVPs” in §17 covers a satire. (§45)
(3) Headliner contained partly factual presentation of social issues and partly value judgments of the maker of the satirical remarks or expressions on such issues. It was thus a PVP within the meaning of §17. (§§46 and 47)
Issue 2
The CA unanimously held that the Judge had erred in constructing §1A of Chapter 9, which requires a broadcaster to “make reasonable efforts to ensure that the factual contents of [PVPs] are accurate.” (§§ 50, 110 and 130).
Having considered a number of relevant contextual considerations (§§51-61), the CA set out (1) the duty imposed by §1A on broadcasters; and (2) the Authority’s approach to complaints about breach of such duty as follows:-
(1) While §1A does not require absolute accuracy, it imposes the duty on broadcasters to carry out verification to ensure accuracy, thus subjecting the programme content to control which is commensurate with the specific nature and characteristics of those programmes. The duty to verify only applies to the factual content. It does not cover other matters including personal views, the truth of which is not susceptible of proof. The duty is to make reasonable efforts to ensure accuracy of the factual content. Broadcasters must exercise their own independent editorial judgment to determine how to carry out the verification to satisfy §1A. Whether the efforts made are reasonable or not is dependent on the actual circumstances such as the nature or subject matter of the factual content, e.g. the more serious a factual allegation is made, the more solid factual basis has to be. To make it meaningful, the verification must be carried out before broadcast so as to achieve the purpose of avoiding dissemination of inaccurate factual content in the broadcast. This duty of verification imposed by §1A on broadcasters is inherent and concomitant with the exercise of their right to freedom of expression. (§§62-66)
(2) In approaching complaints of breach of §1A, since the duty imposed only concerns factual content, the Authority first needs to identify what is the factual content involved. For a PVP, the Authority must draw a clear distinction between facts and personal views. Next, the Authority has to examine the efforts made by the broadcaster to verify the accuracy of the factual content pre-broadcast to determine if they were reasonable in all the circumstances. Put simply, the dispositive question of breach is the reasonableness or otherwise of the efforts made. The Authority will take a holistic view in determining if the complaint is established. (§§69-71)
Applying the above to Remark A, the CA held that the Judge had proceeded on a wrong footing. Upon a review of the evidence, the CA found that the Authority had approached the complaint and arrived at its finding incorrectly (albeit agreeing with the Judge’s conclusion that the Authority’s finding that RTHK had breached §1A in respect of Remark A could not stand):-
(3) Remark A involved two factual allegations on the part of RTHK, i.e. (i) by reasonable inference from the facts known at the time, the Government’s allocation of PPE to the Police might have been disproportionate in scale and need as compared to healthcare professionals (“Allegation 1”); and (ii) there were since February 2020 public concerns and sentiments for the shortages suffered by health care professionals as compared to other public bodies such as the Police (“Allegation 2”). The term “大把” was an exaggeration based on Allegation 2. As such, the term “大把” was not factual. (§§74-75)
(4) In making its findings against RTHK, the Authority regarded the term “大把” as factual, without however giving reasons, although it was RTHK’s case that it was exaggeration based on facts. Moreover, the Authority had not dealt with Allegation 1 or Allegation 2 apparently because it had not identified them as potential factual allegation that might have triggered the duty under §1A. The Authority also had not explained why it did not regard the allegation that there were media reports reporting on such public concerns and sentiments as factual. (§§78 and 79)
(5) Had the Authority applied the correct approach to §1A, it should have identified the factual allegation in Remark A that triggered the duty of verification on RTHK; invited RTHK to make representations; then made findings on them, including if the factual allegation identified was factual for the purpose of §1A and if so, whether RTHK had made reasonable efforts to ensure its accuracy before broadcast. It also behoves the Authority to state the reasons in support of its findings. (§80)
Applying the correct approach to Remark B, the CA held that the Judge’s conclusion, being tainted by his erroneous construction of §1A, cannot stand either:-
(1) Remark B involved two factual assertions. First, RTHK regarded the remark “取消徒步巡邏” as factual. Second, RTHK’s case was that, factually, there were rising public concerns over the suspension or decreasing level of foot patrols as reported in media. Remark B was an expression of such public concerns in a playful manner, which was a satirical expression. As such, the requirement of factual accuracy did not apply. (§§84 and 85)
(2) Whilst the Authority had dealt with the first factual assertion (§86), it did not address the second point above. The Authority merely dealt with those media reports on the public concerns and sentiments which RTHK said to be underpinning Remark B by treating such concerns and sentiments as opinions. This is a fundamental error, rendering its finding that RTHK had breached §1A in respect of Remark B unsupportable. (§§86 and 87)
Issue 3
The Judge quashed the Authority’s finding that RTHK had breached §17(d) because it had failed to take into account the fact that RTHK had twice invited the Police to present its views and provide clarifications by way of studio interview, which were not taken up. That failure was, as found by the Judge, irrational and Wednesbury unreasonable. (§89) The CA unanimously agreed with the Judge’s finding on this point (§§95, 110 and 130).
Issue 4
The question here is whether the portrayal by Wong in the Police Comedy Sketch was denigrating or insulting to the Police based on their social status. The Authority found that it was, which was confirmed by the Judge as a finding falling within its reasonable judgment, as the decision-maker, to make.
Poon CJHC is of the view that the Police Comedy Sketch did target the Police’s efforts in fighting the pandemic. But it went further than that. Wong’s portrayal disdained the Police and those joining the Police as worthless as trash. Such a mockery was quite independent from ridiculing the Police’s efforts in fighting the pandemic. As such, it is in his view open to the Authority, as the decision-maker, to find that it was denigrating and insulting to the Police based on their social status. (§98)
Kwan VP disagrees:-
(1) It is pertinent to note that, according to the Authority’s Final Decision, the Authority “considered that the way Wong was portrayed in the opening and ending of the concerned segment in the programme had denigrated and insulted the Police on the basis of social status.” (§§114 and 115)
(2) In applying §2(b) of Chapter 3, quite clearly a distinction should be drawn between criticism that targets one’s status as opposed to one’s conduct. On the plain wording of §2(b), only the former should fall within the provision. (§118)
(3) If one merely focused on the opening and ending sequences of the Police Comedy Sketch, as the Authority and the Judge had done, it is correct that the portrayal would have “no apparent link to any work of the Police or the public’s dissatisfaction with their professionalism”, and would seem “to be targeting police officers as a group simply on account of their status”. This approach is wrong in law. In considering the parts said to be denigrating or insulting to the Police and ignoring what was portrayed in between the opening and closing sequences is to do so without regard to the context, which includes the satirical nature of the Episode, and context is crucial to the proper interpretation of the material regarded as offensive. (§119)
(4) When the opening and closing sequences are considered in the context of the entire segment, the mockery was directed towards the work of the Police in the fight against COVID-19. The dramatization, in an exaggerated and over-the-top manner, covered incidents when the Police were well equipped with protective gear but did not appear to be doing much compared to medical staff and other government departments, who were not attired in full PPE or not as well equipped. There is apparently a link to the Police’s work and the public dissatisfaction with the Police’s work or professionalism in the execution of their duties in light of the excessive manner of protecting themselves against the pandemic. (§§120 and 121)
(5) Thus, viewed objectively and in the context of the whole segment, the lampooning in the material was not targeting the Police on the basis of their status. For this reason, the Authority has misapplied §2(b) in finding that the material regarded as offensive was in breach of this provision. This finding cannot stand. (§124)
(6) In light of the above, it is unnecessary to consider whether being a police officer can properly be regarded as a “social status” within §2(b) of Chapter 3. (§125)
Au JA also disagrees. However, he does so on slightly different grounds:-
(1) Au JA observes that the case which RTHK had advanced in its response to the Authority, and the applicants before the Judge, is that the sketch was to reflect the general social dissatisfaction of the police’s abuse of power and unlawful conduct of police officers in dealing with the social events and protests in the second half of 2019. This was the same position of the applicants in the judicial review before the Judge. (§§130-140)
(2) On appeal, the applicants seek to challenge the Judge’s conclusion on a different basis, i.e. the sketch was in relation to a criticism about “the excessive approach adopted by the police in protecting themselves against the pandemic” (§§142-144)
(3) Although this is a new basis, the Authority has not raised any objection to the applicants relying on this. In the circumstances, Au JA allowed this new basis to be relied upon by the applicants in this appeal. (§§146-147)
(4) In allowing this new basis to be relied upon by the applicants, Au JA quashes this part of the Final Decision for the reasons set out by Kwan VP at §§118-124.
Issue 5
The CA unanimously agreed with the Judge that the applicants did not have standing to mount the constitutional challenge (§§106, 110 and 130).
Conclusion
For the above reasons, the CA unanimously dismissed the Authority’s appeal in CACV 579/2021, and partially allowed the applicant’s appeal in CACV 584/2021. As of today, all of the Authority’s findings regarding the Episode have been quashed by the CA and the CFI.
The case was widely reported in the press, including but not limited to SCMP, The Standard, Ming Pao, Sing Tao Daily, HK01, RTHK, TVB, i-CABLE and nowTV.
Jeffrey Tam and Andrew Lau, instructed by Messrs. Ho Tse Wai & Partners, acted for the applicants before the CA. They were led by Johannes Chan SC (Hon) in the CFI.
Jeffrey Tam
“Jeffrey Tam of Denis Chang’s Chambers has a broad public law practice that spans issues relating to broadcasting, elections, police powers, housing policy and the National Security Law”
“We handled a very high-profile case; he’s a rising star.”
Chambers and Partners Greater China Region Guide 2024, Administrative & Public Law — Juniors, Band 2
Jeffrey Tam, FHKIArb, attended St. Anne’s College at the University of Oxford for a Bachelor of Civil Law (BCL) on a scholarship after reading law at the City University of Hong Kong. He is also named as a “Leading Junior” for Administrative and Public Law in Legal 500 Asia-Pacific 2022-2024.
Visit Jeffrey’s profile for more details.
Andrew Lau
“Andrew is a very hardworking barrister with outstanding advocacy and drafting skills. As a former journalist, he is particularly good at presenting his arguments in a logical way, making his written and oral submissions convincing and easy to understand, and he is also well-known for being good at explaining the most difficult and complex legal principles and cases in the most straightforward and practical way so that the clients would be able to comprehend them easily.”
Legal 500 Asia-Pacific 2024: Administrative and Public Law – Rising Star
Andrew is a Charles Ching Scholar and a Patrick Yu Scholar. He has a broad civil and criminal practice. He is also a “Rising Star” for Regulatory, Investigations and Crime in Legal 500 Asia-Pacific 2024.
Visit Andrew’s profile for more details.
This article was first published on 9 September 2024.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.