Motion under the Legislative Council (Powers and Privileges) Ordinance (2013.11.07)

President, for the sake of interpreting this storm, it is most imperative to look at the root of the problem, which I believe is the Hong Kong Government’s approach of administration. I know that many people do not trust the Chief Executive, LEUNG Chun-ying, for various reasons, but we cannot deny that the new Government is committed to resolving, without fear of difficulties, the deep-rooted problems cumulated in Hong Kong over the years, including housing, poverty alleviation, and problems caused indirectly by conflicts between China and Hong Kong. However, it is a pity that many well-motivated policies end up being targets of criticisms, though many of them make perfect sense. We can simply not accuse the opposition of stirring up troubles on each and every occasion. Certainly, I believe it is more beneficial to Hong Kong if the opposition can make more constructive suggestions.

I believe both the Government’s failure to engage in careful and serious consideration and its approach of accounting for the incident are to blame for its administrative blunders. The new Government is still adhering to the old Government’s line to take, or the official line, which means that disclosures are very often made in a selective or restricted manner. However, the Government has forgotten the change of times and the fact that this approach can no longer meet the public’s request for the right to know and a high degree of transparency. Hence, it is doomed to failure. I hope it can conduct a comprehensive review or even change its approach of information disclosure in order to achieve effective administration.

Now I would like to turn to my views on this licence issue incident. First of all, Members must understand that it is a very complicated issue. If we cannot grasp the facts due to a lack of time or for various reasons, I believe it is impossible to fully understand the full story of the incident. Actually, it is unfair to pass judgment of right and wrong under such circumstances.

The day before yesterday, the Government issued another statement to further explain the decision on the issuance of licences. Although there is little new information disclosed, the Government still manages to explain in detail some of the considerations for issuing licences. However, I believe the community will absolutely not feel satisfied because the response is made by the Government in a hamstrung mannner. On the one hand, the rule of confidentiality must be observed and, on the other, confidential commercial information must not be leaked. As it is envisaged that a judicial review will be lodged sooner or later, the Government will definitely be advised by counsels not to say anything. Given so many constraints, it is actually difficult for the Government to explain such a complicated issue clearly.

I confess that I got my earlier impression of this incident from the press. After spending considerable time discussing with the Chief Executive and designated government officials, however, my views on the entire incident have changed. I believe it is actually very easy to make a wrong judgment if we cannot understand the incident in a calm and peaceful manner with no pre-established stance.

I believe the crux of the problem in this incident consists of these points:

First, the consultants consider that the gradual and orderly approach should be adopted in issuing licences, and the market can only allow one more new TV licence. Under a favourable market condition, only a maximum of two more new licences can be issued, but the market will be unable to sustain the operation of three new operators.

Second, the consultants recommend that the three applications be assessed according to four criteria. HKTVN is reportedly ranked second in terms of its overall performance.

Next, Members will definitely ask why the ranking of HKTVN would have fallen from second to third. According to media reports and my understanding, the Executive Council has to consider the applications in a holistic manner. Apart from the four consultant’s reports, 10 factors have to be considered as well. Members should note that the Government has made representations in this regard in the information released just now. In my opinion, these two points merit Members’ attention most: First, many rounds of representation documents and public interest are involved. To put it in a more vivid manner, in these representation documents, three applicants are seen criticizing each other and pointing out each other’s shortcomings. At the same time, they are given the opportunity to give a fresh explanation and refute the arguments of the other parties. It is imaginable that a large number of problems concerning the actual operation of the TV industry and possible problems must have been exposed in such representations spanning several months. Under the circumstances that the hidden stories were revealed by people in the industry, I believe the Executive Council was thus able to consider from a new perspective in addition to that of the consultant’s reports, and detect possible scenarios. Hence, it was able to consider the entire matter in a holistic manner.


Furthermore, the issue of public interest, including whether the new licences and operators can sustain their operation during the 12-year licence period, and whether sharp fluctuations will be caused in the market, are mentioned in the Government’s statement, too. These are crucial considerations. Should the successful licensee lack strong financial capability, it might face the worst-case scenario of incurring losses for 12 years in a row. Some people even describe the injection of enormous sums of money for a TV station to sustain its operation as “burning banknotes”. Should its income fall short of its expenditure for a long period of time, it might face “bankruptcy before the expiry of its licence”. This is absolutely possible. In fact, Hong Kong has seen the closure of a TV station before. Despite its production of quite a number of successful TV programmes, the income of CTV had continued to fall short of its expenditure. Consequently, it kept “burning banknotes” and eventually went bankrupt after several years of operation. It was a bitter lesson.

In fact, it is already very difficult for existing TV stations to sustain their operation because their advertising revenue cannot possibly see a drastic growth. Should competition between TV stations trigger a cut-throat price-cut battle, even leading to the closure of some TV stations eventually, not only will the entire TV industry be impacted, other media will also be affected in a negative manner. When the two successful operators submitted their applications in 2010, their parent companies had already made it clear that financial support would be given. Moreover, they had long experience in operating TV stations. In this regard, their chances of “early bankruptcy” are indeed comparatively low. Certainly, Members might ask these questions: Why is the Government so conservative? Such being the case, how can small operators have any chance? These are the issues the Government needs to consider, too.

I believe the original motion today can hardly be passed because the Executive Council obviously has a practical need to maintain the confidentiality system, which has been in operation for years. If there is really a need for revision, in-depth studies and discussions must be conducted, for changes to the rule cannot be proposed simply because of the licence issue incident. As regards the issue of confidential commercial information, it is all the more unreasonable to destroy Hong Kong’s trademark as a financial hub because of these circumstances or this incident.

Mr Dennis KWOK has proposed not to request documents involving the Executive Council and confidential commercial information probably because he realizes the significance of the Executive Council’s rule of confidentiality and commercial confidentiality. On the surface of it, the two major hurdles can thus be circumvented. On second thought, however, if several hundred documents have already been considered by the Executive Council during the process, which means that we can only obtain other information, these documents will actually be excluded from our consideration. So, how can we make a comprehensive and impartial judgment? In the end, Members will definitely act like “blind men examining an elephant”: they can only feel the different parts of its body. Furthermore, many technical problems are actually involved, including distinguishing between Executive Council documents, non-confidential commercial information, and so on. Lengthy debates will thus be arise. Therefore, although the amendment appears to be fair, we actually need to spend much time to debate the motion. Just now, I was asked by a journalist whether or not public opinion had to be considered. Certainly, public opinion has to be considered. I also understand the public grievances over the incident. As a Legislative Council Member, we can choose to join the public in criticizing the Government in order to curry favour with voters for more votes. We can also choose to guide them to understand the complexity and difficulty of the issue and request or compel the Government to address their opinion properly. If invoking the P&P Ordinance can resolve this incident, I will definitely render it my support, but I believe the relevant issues can still not be resolved even if the P&P Ordinance is revoked.

In fact, for people dissatisfied with the Government’s decision, the most correct way is to resort to judicial review to let the Court decide in what aspects the Government has acted unfairly. Yesterday, Mr Alan LEONG, SC, and Mr Dennis KWOK highlighted the limitation of judicial review. Just now, Mr Martin LIAO, SC, also responded to the relevant issues in detail. I think that his response makes perfect sense. It demonstrates that Hong Kong’s system of legal practitioners is remarkable, for they can go in different directions as required. Sometimes, we need to engage a lawyer because we do not know which way we should go. While there is no way we can avoid spending money, the legal professionals will definitely win. In fact, I have great confidence in Hong Kong’s judicial system, even more so than invoking the P&P Ordinance. Should the Legislative Council be allowed to make political judgment, not only will the problems not be resolved, many disputes related to laws and principles will definitely arise. Members should not say that Judges in Hong Kong are aloof but actually do not trust them. Our Judges must enjoy a transcendental status to make qualified, competent and systematic judgments. People who would like to deal with the problems in a rational manner had better apply for a judicial review. Unlike us, Judges appear to have no political considerations. Insofar as all parties are concerned, I believe it is fairer if Judges can adjudicate free from pressure whether or not the Government has erred.

I believe the chance of the original motion and amendment today being passed is slim, but even so, I still hope that the Government can explain in detail and resolve the incident through the Panel on Information Technology and Broadcasting to restore public confidence by all means.

Thank you, Deputy President.

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