Speech on Motion under the Legislative Council (Powers and Privileges) Ordinance

To understand the row of new Free Terrestrial Television (FTTV) Licenses, one must realize its root cause. It is the way in which the Government handles the applications. I am fully aware that many people do not have faith in Chief Executive Leung for various reasons. However, it is indisputable that the new Administration is determined to resolve outstanding complex issues like housing, helping the poor and those rising from conflicts with Mainlanders. Unfortunately, many policies of good intents are controversial but critics are not unreasonable. Frankly, we could not always disapprove of the opposition as unproductive. Of course, if they were more constructive in suggestions, they would help make Hong Kong a better place.

Governance is poor for two causes. Apart from immaturity of policies, communication is ineffective. The new Administration follows the classical approach of “line to take” or official tone. However, official tones are more often than not selective and restrictive in disclosure. Times have changed. Such approach is no longer acceptable when the public is demanding transparency. It bounds to fail. I urge the Government to revamp its approach to communication.

Let me now express my views on the new licenses incident.

First of all, we must realize that licensing is complex. If one does not grasp the facts due to time or any other excuses, one would hardly comprehend the cause and effect. Under such limitation, one would be unfair to judge who is right and who is wrong.

Two days ago, the Government released further Statement to defend its decision. Although fresh information is limited, more details are given on factors being considered. However, I do not expect they are acceptable to the public because official responses are unduly restrictive. The principle of confidentiality must be observed. Commercial secrecy must not be compromised. Judicial reviews are in the pipeline. Government lawyers would obviously advise against disclosure. Given so many restrictions, there is almost impossible to explain such a complex matter in simple language.

I must confess that my first impression of this incident came from the media. After prolonged discussions with CE and responsible officers, I have had a fresh view. I believe that if one is not composed and unprejudiced, one would easily misjudge.

In my view, there are several points are crucial here:

Firstly, the Consultant considers that new licenses should be issued progressively because the market would only admit one more new comer. If market is more favorable, it might admit two but not three new licensees.

Secondly, the Consultant recommends assessing three applications against four standards. It is reported that HKTV ranks second in total assessment.

Thus, one would ask: why does its ranking eventually fall to third? According to media reports and my understanding, ExCo still has to consider applications in its entirety. Apart from four consultancy reports, there are also 10 factors, including several rounds of representations and public interest. In simple language, three applicants were asked to comment on each other, to point out weakness of each other, and to respond to comments from rivals. One could imagine that substantial operational and potential problems were revealed during rounds of representations that have lasted for months. As these were cross examinations among practitioners, ExCo might consider the matter from angles beyond consultancy reports including possible real life situations.

On the other hand, the Government has also categorically addressed the question of public interest in the same Statement. Among major considerations are whether new licensees would survive the 12-year franchise and whether the market would be unduly disrupted. If a licensee is financially inadequate, it might not survive 12 consecutive years of loss in the worst scenario. Television broadcasting is capital intensive and some even describe it as money burner. If operation is in prolonged deficit, a station might abruptly shut down. It would and did happen. One may recall the closure of Commercial Television. It was a creative station and had produced many acclaimed programmes. However, it was never in black and closed down after several years. This is a hard lesson for all.

In fact, television is challenging business. Advertising market does not have phenomenal growth. If competition for airtime were unhealthy, there would be cut-throat pricing, leading to closure of stations. In turn, the whole industry would suffer with adverse spillover to other media. When the two new licensees submitted applications back in 2010, their parents had pledged financial support. Moreover, they have proven track records. From this perspective, it is unlikely that they would not survive. One might then ask: Does it mean that small companies would never have any chance? I would say that this is a good question that the Government should think about.

I am not convinced that the original Motion would have any good chance of getting through. Confidentiality of ExCo is an established and proven practice of obvious necessity. If changes were desirable, they should be thoroughly studied and discussed but never be impromptu for any particular case like new FTTV licenses. On commercial secrecy, there is no good ground for Hong Kong as a renowned financial centre to break the rule for this incident.

The Hon Dennis Kwok probably realizes the sensitivity of ExCo confidentiality and commercial secrecy, and he moves an Amendment to exclude such confidential documents. Apparently, it would avoid controversy and undue resistance of support. On second thought, if ExCo has considered hundreds of documents in arriving at its decision and we might only get hold of materials exclusive of them, how could we make an impartial judgment? To draw an analogy, we might be acting like blinds exploring an elephant. One might only touch the ivory, the trunk, the foot, or any other part. There is also a technical problem of defining what non-ExCo papers are and what non-commercial secrets are. We would run into prolonged debates. Thus, the Amendment looks fair and square, but is indeed contentious.

I have been asked by the media on responding to public concerns. Of course, their views should never be neglected. Their dissatisfaction is understandable. As Legislator, I might choose to echo and criticize the Government to win votes. I might also choose to help the public realize complexty and difficulties of the decision, and urge the Government to address concerns in proper ways. If the LegCo Power and Privilege (P&P) were helpful in this respect, I would support. However, I am not convinced.

Frankly, the best means of expressing dissatisfaction of the decision is judicial review, leaving the judgment to court of law. At their speeches yesterday, the Hon Alan Leung and Dennis Kwok have explained limitations of judicial review in this case. The Hon Martin Liu has responded a moment ago. I have confidence in our judicial system. It is a much better alternative to P&P. If the case were taken up by LegCo, it would turn out to be a political trial. Not only redress would not be found, it would become also cause for political wrestling. The case before us concerns procedural justice. As considerable legal principles and letters would be debated, only judges presiding at court of law are competent to decide given their impartiality. If stakeholders wish to move ahead rationally, they should apply for judicial review instead. Leave it to the court to decide, free from political consideration and pressure, whether the Government is wrong. It is more equitable to all.

The case would not be closed today even if this Motion and Amendment were both not carried. The Government should make good use of LegCo Panel on IT and Broadcasting to fully explain and resolve the matter.

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