Hong Kong Administrative Law — RTHK “Headliner” case: Court of Appeal refuses the Communications Authority’s application for leave to appeal to the apex court
In RTHK Programme Staff Union & Anor v Communications Authority [2025] HKCA 121, the Court of Appeal (“CA”) dismissed the application by the Communications Authority (“Authority”) for leave to appeal to the Court of Final Appeal (“CFA”), as regards the CA’s earlier judgment (“Judgment”, the commentary of which can be found here) that quashed the Authority’s findings against the longest running satirical show in Hong Kong, Headliner, produced by the public broadcaster Radio Television Hong Kong (“RTHK”).
Jeffrey Tam and Andrew Lau, instructed by Messrs. Ho Tse Wai & Partners, acted for the successful applicants in resisting the Authority’s application for leave to appeal to the CFA.
The Judgment
In the Judgment:-
(1) The CA unanimously held that the court below had erred in constructing §1A of Chapter 9 of the Generic Code of Practice on Television Programme Standards (“Code”), which requires a licensee/broadcaster to “make reasonable efforts to ensure the factual contents of…personal view programmes…are accurate”.
(2) The CA unanimously held that the court below was correct to quash the Authority’s finding that RTHK had breached §17(d) of the Code 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. §17(d) states “licensees should be mindful of the need for a sufficiently broad range of views to be expressed in any series of personal view programmes”.
(3) By a majority, the CA held that the court below had erred in holding that it was open to the Authority to find that RTHK had acted in breach of §2(b) of Chapter 3 of the Code by including content that was denigrating or insulting to the Police on the basis of social status. Under §2(b), a licensee should not include in its programmes “any material which is…considered to be denigrating or insulting to any person(s) or group(s) on the basis of…social status”.
The Application
The Authority applied for leave to appeal to the CFA by raising three questions that were said to be of great general or public importance. Those questions are:-
(1) As regards the duty of verification that is both (a) an inherent and concomitant part of the exercise of freedom of expression under Article 16 of the Bill of Rights; and (b) required under §1A of Chapter 9 of the Code, what is the proper approach to assessing a broadcaster’s compliance with that duty?
(2) In relation to satirical shows and material, and bearing in mind (a) any constitutional rights to free expression that may be engaged, and (b) the Authority’s statutory duties in safeguarding the public interest in ensuring that public broadcasting reflects a sufficiently broad range of views, what is the proper approach to assessing compliance with §17(d) of Chapter 9 of the Code?
(3) What is the meaning of “social status” for the purpose of §2(b) of Chapter 3 of the Code?
All three questions were rejected by the CA because they were academic and/or did not arise in the Judgment, and thus, they are not questions of great general or public importance. Accordingly, the Authority failed to meet the threshold for leave to appeal to the CFA, and the application was dismissed.
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”
“Jeffrey is a measured and thoughtful advocate.”
Chambers and Partners Greater China Region Guide 2025, 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 2022-2025.
Visit Jeffrey’s profile for more details.
Andrew Lau
“Andrew is a very competent barrister. He not only has great legal analytical skills, but also a very good sense of the forensic/factual side of litigation, which is important for any type of litigation.”
Legal 500 Asia-Pacific 2025: Administrative and Public Law – Leading Junior
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 2025.
Visit Andrew’s profile for more details.
This article was first published on 10 February 2025.
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.