After what seems like an eternity, Justice Au of the High Court has granted two individuals leave to apply for judicial review against the government’s decision to deny HKTV a TV licence. I discussed the case and the general problem of the transfer of political decisions to the courtroom here.
While this green light is generally good news, I have a suspicion that these two individuals will lose their case. Usually these days – after the threshold for allowing judicial review cases was raised some years ago – the leave hearing more or less doubles as a hearing on the substantive arguments. In other words, if you get leave you have a pretty good chance of wining the case. However, based on what has been reported so far (the judge need not give reasons if the decision is to grant leave) and on my personal experiences of Justice Au, my sense is that he has already made up his mind not to overturn the decision, in spite of allowing the review to go ahead. One thing I found a bit odd was that Justice Au apparently highlighted the fact that HKTV had begun producing a number of drama series. That may well be true but it is really a very preliminary point. The main issue of course is whether any of the grounds for successful JR are met. The possible grounds are that the government’s decision was 1) illegal, 2) improper/unreasonable or 3) that there was procedural impropriety. So unless there is proof that the CY Leung decided in complete defiance of the consultants’ reports etc, I don’t see this case succeeding. Having said that, I have no doubt that CY Leung took an unreasonable decision based purely on political motivations, I simply cannot see how that can be proven in court – and even if it could be, whether this judge (or any other judge) would go as far as saying that CY Leung made an unreasonable or improper decision based on his political predilection.