Broadcasting Ordinance-Hong Kong (2000)

Broadcasting Ordinance (Cap. 562) (2000)
by Legislative Council of Hong Kong

Date of Commencement: 7 July 2000 (Except ss. 13, 14, 16 and 17) (s. 1(2))
Date of Commencement: 16 February 2001 (ss. 13, 14, 16 and 17) (L.N. 45 of 2001)

Subsidiary legislation made under the repealed Television Ordinance (Cap. 52) ceased to be in force with effect from 7 July 2000, and are formally repealed by s. 72(1) of the Statute Law (Miscellaneous Provisions) Ordinance 2012 (26 of 2012) (Schedule items 1-9).

BROADCASTING ORDINANCE

CONTENTS

Section

PART I
Preliminary
1
Short title and commencement

A1791
2
Interpretation

A1791
PART II
Codes of Practice and Guidelines
3
Approval of codes of practice by Broadcasting Authority

A1807
4
Guidelines

A1809
PART III
Regulation of Broadcasting Services
5
Offence of providing broadcasting service without licence

A1811
6
Unauthorized decoders

A1811
7
Offence of providing decoders and reception equipment for television programme service on subscription basis without licence

A1815
PART IV
Licenses—General Provisions
8
To whom licence may be granted

A1815
9
Recommendations by the Broadcasting Authority on applications for licences

A1819
10
Grant of licence

A1819
11
Extension or renewal of licence

A1821
12
Determination of whether television programme service primarily targets Hong Kong

A1823
PART V
Requirements Relating to Licensed Services
13
Prohibition on anti-competitive conduct

A1825
14
Prohibition on abuse of dominance

A1827
15
Provisions supplementary to sections 13 and 14

A1829
16
Notice to licensee to cease certain conduct

A1831
17
Separate accounting

A1831

18
Service provision requirements

A1831
19
Television programmes for schools

A1833
20
Television programme service locking device

A1833
21
Restrictions on persons not regarded as fit and proper

A1833
22
Prevention of interference with programming independence of licensees

A1835
23
General requirements as to television programme services

A1835
PART VI
Enforcement of Licenses
24
Directions of Broadcasting Authority and Telecommunications Authority

A1837
25
Investigation of licensee’s business

A1837
26
Broadcasting Authority may obtain information

A1843
27
Confidential matter to be safeguarded

A1847
28
Licensee to pay financial penalty

A1849
29
Recovery of financial penalty

A1851
30
Licensee to include correction or apology in television programme service

A1853
31
Suspension of licence

A1853
32
Revocation of licence

A1857
33
Inquiry by Broadcasting Authority

A1859
34
Appeal to Chief Executive in Council

A1861
35
Determination of appeal

A1861
PART VII
Prohibition and Proscription by Court
36
Court may prohibit certain television programmes, etc

A1863
PART VIII
Miscellaneous
37
Contests

A1865
38
Inspection and testing of technical equipment

A1865
39
Licensee to submit returns

A1867
40
Service of documents

A1867
41
Power of Broadcasting Authority to specify forms

A1869
42
Regulations

A1871
43
Amendment of Schedules 1 to 8, etc

A1873
44
Repeal, transitional and savings provisions and consequential amendments

A1873

Schedule 1
Disqualification for holding domestic free or pay television programme service licences and restriction on voting control of voting controllers

A1875
Schedule 2
Items which are not to be regarded as newspapers for the purpose of paragraph (c) of definition of “newspaper” in section 2(1)

A1909
Schedule 3
Services not to be regarded as television programme services

A1909
Schedule 4
Domestic free television programme service supplementary provisions

A1913
Schedule 5
Domestic pay television programme service supplementary provisions

A1921
Schedule 6
Non-domestic television programme service supplementary provisions

A1921
Schedule 7
Other licensable television programme service supplementary provisions

A1921
Schedule 8
Transitional and savings provisions

A1923
Schedule 9
Consequential amendments

A1931

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HONG KONG SPECIAL ADMINISTRATIVE REGION

Ordiance No. 48 of 2000

Locus sigilli.svg

TUNG Chee-hwa
Chief Executive
6 July 2000

An Ordinance to license companies to provide broadcasting services, to regulate the provision of broadcasting services by licensees, and to provide for matters incidental thereto or connected therewith.

[7 July 2000]

Enacted by the Legislative Council.

PART I
Preliminary

1. Short title and commencement

(1) This Ordinance may be cited as the Trade Marks Ordinance.

(2) Subject to subsection (3), this Ordinance shall come into operation on the day on which this Ordinance is published in the Gazette.

(3) Sections 13, 14, 16 and 17 shall come into operation on a day to be appointed by the Secretary for Information Technology and Broadcasting by notice in the Gazette.

2. Interpretation

(1) In this Ordinance, unless the context otherwise requires—

“associate” (相聯者)—

(a) subject to paragraph (b), in relation to—
(i) a voting controller holding voting control, means the same as it does in the definition of “associate” in Part 1 of Schedule 1;

(ii) a disqualified person, means the same as it does in relation to a voting controller holding voting control, with the modification that any reference in the definition mentioned in subparagraph (i) to a voting controller shall be construed as a reference to a disqualified person;
(iii) a licensee, means the same as it does in relation to a voting controller which is a corporation holding voting control, with the modification that any reference in the definition mentioned in subparagraph (i) to a voting controller which is a corporation shall be construed as a reference to a licensee;
(iv) a person who exercises control of a licensee, means the same as it does in relation to a voting controller holding voting control, with the modification that any reference in the definition mentioned in subparagraph (i) to a voting controller shall be construed as a reference to a person who exercises control of a licensee;
(b) does not include a person who is not an associate in accordance with the provisions of a notice under subsection (2);
“Broadcasting Authority” (廣管局) means the Broadcasting Authority established under section 3 of the Broadcasting Authority Ordinance (Cap. 391);

“broadcasting service” (廣播服務) means—

(a) a domestic free television programme service;
(b) a domestic pay television programme service;
(c) a non-domestic television programme service; or
(d) an other licensable television programme service;

“Chief Secretary” (司長) means the Chief Secretary for Administration;

“Code of Practice” (業務守則) means a Code of Practice approved under section 3;

“company” (公司) means the same as it does in the definition of “company” in section 2(1) of the Companies Ordinance (Cap. 32);

“conditions” (條件), in relation to a licence, means the conditions specified in the licence, the conditions specified in this Ordinance which are applicable to the licence and the conditions specified in a notice under section 10(3) which are applicable to the licence;

“corporation” (法團) means a company or other body corporate;

“decoder” (解碼器) means an apparatus, component part of an apparatus, or other component in electronic or tangible form, which is designed or adapted to enable (whether of its own or with any other apparatus) an encrypted television programme service to be decoded;

“disqualified person” (不符合持牌資格人士) means the same as it does in the definition of “disqualified person” in Part 1 of Schedule 1;

“domestic free television programme service” (本地免費電視節目服務) means a television programme service which—

(a) is intended or available for reception by the public free of charge in Hong Kong;
(b) is intended or available for reception by an audience of more than 5 000 specified premises; and
(c) primarily targets Hong Kong;

“domestic pay television programme service” (本地收費電視節目服務) means a television programme service which—

(a) is intended or available for reception by the public, on payment, whether periodically or otherwise, of a subscription in Hong Kong;
(b) is intended or available for reception by an audience of more than 5 000 specified premises; and
(c) primarily targets Hong Kong;

“domestic premises” (住宅) means any premises which are constructed or intended to be used for habitation;

“dominant position” (支配優勢) means dominant position construed in accordance with section 14;

“exercise control” (行使控制) means the same as it does in Part 1 of Schedule 1;

“function” (職能) includes a power and a duty;

“hotel room” (酒店房間) means accommodation within the meaning of section 2(1) of the Hotel Accommodation Tax Ordinance (Cap. 348);

“influence” (影響、影響力) means the same as it does in the definition of “influence” in Part 1 of Schedule 1;

“let for hire” (出租) includes invite to let for hire;

“licence” (牌照) means a licence—

(a) granted under section 8(1) to provide a domestic free television programme service or domestic pay television programme service; or
(b) granted under section 8(2) to provide a non-domestic television programme service or an other licensable television programme service;

“licensee” (持牌人) means the holder of a licence;

“licensee” (持牌人) means the holder of a licence;

“licensed service” (領牌服務) means a broadcasting service the subject of a licence; “material” (材料) includes pictures (whether moving or not), words, music and other sounds, whether produced, spoken or made simultaneously or otherwise;

“newspaper” (報刊) means a paper or other publication or a supplement thereto available to the public which—

(a) contains news, intelligence, occurrences or any remarks, observations or comments in relation to such news, intelligence or occurrences or to any other matter of public interest;
(b) is published for sale or free distribution and periodically (whether half-yearly, quarterly, monthly, fortnightly, weekly, daily or otherwise), or in parts or numbers at intervals not exceeding 6 months; and
(c) does not comprise exclusively any item or items specified in Schedule 2;

“non-domestic television programme service” (非本地電視節目服務) means a television programme service which—

(a) is—
(i) intended or available for reception by the public—
(A) free of charge in Hong Kong; or
(B) on payment, whether periodically or otherwise, of a subscription in Hong Kong; or
(ii) neither intended nor available for reception by the public—
(A) free of charge in Hong Kong; or
(B) on payment, whether periodically or otherwise, of a subscription in Hong Kong; and
(b) does not primarily target Hong Kong;
“offer for sale” (要約出售) includes invite to offer for sale;

“ordinarily resident in Hong Kong” (通常居於香港)—

(a) in relation to an individual, means—
(i) residence in Hong Kong for not less than 180 days in any calendar year; or
(ii) residence in Hong Kong for not less than 300 days in any 2 consecutive calendar years;
(b) in relation to a corporation, means a corporation which satisfies the following—
(i) if the number of directors who actively participate in its direction—
(A) is 2, each is an individual;
(B) is more than 2, each of a majority of them is an individual,
for the time being ordinarily resident in Hong Kong in accordance with paragraph (a) and has been so resident for at least one continuous period of not less than 7 years; and
(ii) the control and management of the corporation is bona fide exercised in Hong Kong;

“other licensable television programme service” (其他須領牌電視節目服務) means a television programme service which is intended or available for reception—

(a) free of charge in Hong Kong or on payment, whether periodically or otherwise, of a subscription in Hong Kong; and
(b) either—
(i) subject to subsection (12), by an audience of not more than 5 000 specified premises; or
(ii) in hotel rooms;
“performance bond” (履約保證), in relation to a licensee, means a first demand performance bond or bank guarantee—

(a) issued by a bank within the meaning of section 2(1) of the Banking Ordinance (Cap. 155);
(b) in favour of the Government; and
(c) which complies with the provisions of the notice under subsection (3) applicable to the licensee,
to secure compliance by the licensee with any of its licence conditions;

“practicable” (切實可行) means reasonably practicable;

“prescribed Ordinance” (訂明條例) means—

(a) this Ordinance;
(b) the Telecommunications Ordinance (Cap. 106); or
(c) the Broadcasting Authority Ordinance (Cap. 391);
“principal officer” (主要人員) means the same as it does in the definition of “principal officer” in Part 1 of Schedule 1;

“provide” (提供), in relation to a broadcasting service, includes establish and operate;

“public place” (公眾地方) means a place to which the public or a section of the public may or are permitted to have access from time to time, whether by payment or otherwise;

“representations” (申述) means representations in writing;

“restriction” (限制) includes restraint;

“specified” (指明), in relation to a form, means specified under section 41;

“specified premises” (指明處所) means any domestic premises, or hotel room, in Hong Kong;

“subscription” (收看費) means a fee payable by or on behalf of any person for the right to view a television programme service in Hong Kong;

“subsidiary” (附屬公司) has the same meaning as in the Companies Ordinance (Cap. 32);

“telecommunications” (電訊) means the same as it does in the definition of “telecommunications” in section 2(1) of the Telecommunications Ordinance (Cap. 106);

“Telecommunications Authority” (電訊局長) means the Telecommunications Authority appointed under section 5 of the Telecommunications Ordinance (Cap. 106);

“television programme” (電視節目) means moving visual representational images (that is, images comprised within sequences of visual images capable of being seen as moving images), or a combination of sounds and such images, that are intended to inform, enlighten or entertain, but does not include visual images that consist predominantly of alphanumeric text, data, graphs, charts, diagrams or video games;

“television programme service” (電視節目服務)—

(a) subject to paragraph (b)—
(i) means the provision of a service that includes television programmes for transmission by telecommunications—
(A) that are readily accessible to, or made available to, the general public in or outside Hong Kong; or
(B) to persons, in 2 or more specified premises, simultaneously or on demand, whether on a point-to-point or a point-to-multipoint basis, or any combination thereof, having equipment appropriate for receiving that service; and
(ii) includes a service, or a service belonging to a class of services, which is a television programme service in accordance with the provisions of a notice under subsection (5)(a);
(b) does not include the provision of a service that—
(i) consists only of a television programme that is made solely for performance or display in a public place;
(ii) consists only of a television programme that is intended wholly or mainly for the purposes of the trade, business, employment or profession of the recipient (but excluding a television programme delivered to hotel rooms);
(iii) consists only of a service that is specified in Schedule 3; or
(iv) is a service, or a service belonging to a class of services, which is not a television programme service in accordance with the provisions of a notice under subsection (5)(b);
“television programme service locking device” (鎖碼裝置) means a device which enables a person to whom a television programme service is or is to be provided to control access to the service;

“voting control” (表決控制權) and “voting controller” (表決控權人) mean the same as they do in the definitions of “voting control” and “voting controller” respectively in Part 1 of Schedule 1;

“voting share” (有表決權股份), in relation to a corporation, means a share which entitles the registered owner of the share to vote at meetings of the shareholders of the corporation.

(2) The Broadcasting Authority may, by notice in the Gazette, declare that persons specified in the notice are not associates if the Broadcasting Authority specifies in the notice that it is satisfied that—

(a) the persons do not act together in any relevant dealing relating to a licensee or disqualified person; and
(b) each person is not in a position to exert influence over the business dealings of the other person in relation to that licensee or disqualified person.

(3) The Chief Executive in Council or the Broadcasting Authority, as the case may require, may, by notice in writing, specify the form and the amount of a first performance bond or bank guarantee mentioned in the definition of “performance bond” in subsection (1).

(4) For the purposes of this Ordinance—

(a) transmission on a point-to-point basis means that each transmission (of which there may be more than one at the same time, but independent of and separate from one another) is between one point and only one other point;
(b) transmission on a point-to-multipoint basis means that a transmission is between one point and 2 or more other points;
(c) a television programme does not cease to be so merely because it is an interactive programme, that is, a programme which is designed so that the viewer can participate in or influence its contents and method of presentation (if it is otherwise a television programme).
(5) The Chief Executive in Council may, by notice in the Gazette—

(a) declare a service, or a class of services, specified in the notice to be a television programme service, or a class of television programme services, as the case may be;
(b) declare a service, or a class of services, specified in the notice not to be a television programme service, or a class of television programme services, as the case may be.
(6) Any reference in this Ordinance to the performance of a function shall be construed as including the exercise of a power or the performance of a duty, as the case may require.

(7) Where, in relation to a corporation, 2 or more persons have a joint interest, then for the purposes of this Ordinance each of those persons shall be regarded as having the entire interest to the exclusion of the other persons.

(8) For the purposes of this Ordinance—

(a) Schedules 1 and 4, unless otherwise stated, shall have effect to and in relation to a domestic free television programme service, domestic free television programme service licence and domestic free television programme service licensee;

(b) Schedules 1 and 5, unless otherwise stated, shall have effect to and in relation to a domestic pay television programme service, domestic pay television programme service licence and domestic pay television programme service licensee;
(c) Schedule 6, unless otherwise stated, shall have effect to and in relation to a non-domestic television programme service, nondomestic television programme service licence and non-domestic television programme service licensee;
(d) Schedule 7, unless otherwise stated, shall have effect to and in relation to an other licensable television programme service, other licensable television programme service licence and other licensable television programme service licensee.

(9) For the avoidance of doubt, it is hereby declared that—

(a) a television programme service includes any advertisements comprised within the service;
(b) a notice under subsection (2) or (3) is not subsidiary legislation;
(c) a notice under subsection (5) is subsidiary legislation;
(d) where a condition specified in a licence makes any reference to an approval by or of the Broadcasting Authority or the Telecommunications Authority (or words to the like effect), then that approval may be given subject to such conditions as the Broadcasting Authority or the Telecommunications Authority, as the case may be, thinks fit;
(e) a provision of this Ordinance which requires information or a document to be disclosed or otherwise given to the Broadcasting Authority or any other person does not operate to require a person to disclose or otherwise give any information or document which the person could not be compelled to disclose or otherwise give in evidence in civil proceedings before the Court of First Instance.
(10) Subsection (9)(e) shall not apply to the disclosure by a solicitor of the name and address of a client of the solicitor.

(11) In exercising their powers under this Ordinance, the Broadcasting Authority and the Telecommunications Authority shall—

(a) when forming an opinion or making a determination, direction or decision under this Ordinance, only do so on reasonable grounds and having regard to relevant considerations;
(b) when forming an opinion or making a determination, direction or decision under this Ordinance, provide reasons in writing for it.

(12) The Broadcasting Authority may, by notice in writing served on the licensee, or the person seeking to be a licensee, concerned, waive the requirement specified in paragraph (b)(i) of the definition of “other licensable television programme service” if the Broadcasting Authority is satisfied that the other licensable television programme service concerned is only intended or available for reception by a single housing estate.

(13) In this Ordinance—

(a) a reference to “telecommunications” includes “telecommunication”;
(b) a reference to “Telecommunications” includes “Telecommunication”.

PART II
Codes of Practice and Guidelines

3. Approval of codes of practice by Broadcasting Authority

(1) Subject to subsection (8), for the purpose of providing practical guidance for licensees in respect of any requirements under this Ordinance imposed on licensees or in respect of licence conditions, the Broadcasting Authority may—

(a) approve and issue such codes of practice (whether prepared by it or not) as in its opinion are suitable for that purpose; and
(b) approve such codes of practice issued or proposed to be issued otherwise than by it as in its opinion are suitable for that purpose.
(2) Where a code of practice is approved under subsection (1), the Broadcasting Authority shall, by notice in the Gazette—

(a) identify the code concerned and specify the date on which its approval is to take effect; and
(b) specify for which of the requirements under this Ordinance or licence conditions the code is so approved.
(3) The Broadcasting Authority may—

(a) from time to time revise the whole or any part of any code of practice prepared by it under this section; and
(b) approve any revision or proposed revision of the whole or any part of any code of practice for the time being approved under this section,
and the provisions of subsection (2) shall, with the necessary modifications, apply in relation to the approval of any revision under this subsection as they apply in relation to the approval of a code of practice under subsection (1).

(4) The Broadcasting Authority may at any time withdraw its approval from any code of practice approved under this section.

(5) Where under subsection (4) the Broadcasting Authority withdraws its approval from a code of practice approved under this section, it shall, by notice in the Gazette, identify the code concerned and specify the date on which its approval of it is to cease to have effect.

(6) References in this Ordinance to a “Code of Practice” are references to that code as it has effect for the time being by virtue of any revision of the whole or any part of it approved under this section.

(7) The power of the Broadcasting Authority under subsection (1)(b) to approve a code of practice issued or proposed to be issued otherwise than by it shall include power to approve a part of such a code and, accordingly, in this Ordinance “Code of Practice” may be read as including a part of such a code.

(8) The Broadcasting Authority shall, before approving a code of practice under subsection (1) or any revision or proposed revision of the code under subsection (3), consult with—

(a) such bodies representative of licensees to which the code or the code as so revised, as the case may be, will apply (whether in whole or in part); and
(b) in so far as the code or the code as so revised, as the case may be, relates to the technical standards of a broadcasting service, the Telecommunications Authority,
as it thinks fit.

(9) For the avoidance of doubt, it is hereby declared that different codes of practice may be approved under subsection (1) for different classes of licensees, and may be so approved for the same or different requirements mentioned in that subsection or licence conditions.

4. Guidelines

(1) The Broadcasting Authority may from time to time cause to be prepared and published by notice in the Gazette, for the guidance of licensees or companies seeking to be licensees, guidelines not inconsistent with this Ordinance—

(a) indicating the manner in which the Broadcasting Authority proposes to perform functions conferred by this Ordinance upon the Broadcasting Authority;
(b) on such other matters relevant to this Ordinance as the Broadcasting Authority thinks fit.
(2) Without prejudice to the generality of subsection (1), the Broadcasting Authority shall, as soon as is practicable, issue guidelines indicating the manner in which it proposes to—

(a) perform its function under section 9(2), including the licensing criteria and other relevant matters it proposes to consider;
(b) perform its function under section 10(2), including the licensing criteria and other relevant matters it proposes to consider;
(c) perform its function in forming an opinion under section 13 or 14;
(d) perform its function under section 18(2), including the criteria it proposes to consider.
(3) The Broadcasting Authority shall, before issuing guidelines under subsection (2)(c), carry out such consultation with such bodies representative of licensees who may be affected by the guidelines as is reasonable in all the circumstances of the case.

PART III
Regulation of Broadcasting Services

5. Offence of providing broadcasting service without licence

(1) A person shall not provide a broadcasting service except under and in accordance with a licence.

(2) A person who contravenes subsection (1) commits an offence and is liable—

(a) on summary conviction, to a fine at level 6 and to imprisonment for 2 years;
(b) on conviction on indictment, to a fine of $1,000,000 and to imprisonment for 5 years.
6. Unauthorized decoders

(1) A person shall not, in the course of trade or business, import, export, manufacture, sell, offer for sale or let for hire an unauthorized decoder.

(2) A person who contravenes subsection (1) commits an offence and is liable—

(a) on summary conviction, to a fine at level 6 and to imprisonment for 2 years;
(b) on conviction on indictment, to a fine of $1,000,000 and to imprisonment for 5 years.
(3) Where it is proved that a person has, in the course of trade or business, imported, exported, manufactured, sold, offered for sale or let for hire an unauthorized decoder, then, unless there is evidence to the contrary, it shall be presumed that the person knew that the decoder was an unauthorized decoder.

(4) Where the Telecommunications Authority or any public officer authorized in writing in that behalf by the Telecommunications Authority has reasonable grounds for believing that a person, in the course of trade or business, imports, exports, manufactures, sells, offers for sale or lets for hire unauthorized decoders, then he may—

(a) require the person to produce for his inspection, at any place specified by him, any decoder imported, exported, manufactured, sold, offered for sale or let for hire by the person in the course of trade or business;
(b) enter and inspect any premises at, to or from which he reasonably believes that the person imports, exports, manufactures, sells, offers for sale or lets for hire in the course of trade or business unauthorized decoders, and require the production to him of any books or documents relating to the decoders;
(c) seize, remove and detain any unauthorized decoders.
(5) Domestic premises shall not be entered or searched under subsection (4) except pursuant to a warrant under subsection (6).

(6) Where a magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that there is an unauthorized decoder in any domestic premises used by a person whom he has reasonable grounds for believing has committed an offence under this section, then he may issue a warrant authorizing the Telecommunications Authority or any other public officer to enter and search the premises.

(7) The Telecommunications Authority or any public officer authorized in writing in that behalf, in the exercise of the powers under subsection (4) or pursuant to a warrant issued under subsection (6), may—

(a) break open any outer or inner door of any place that he is empowered or authorized to enter and search;
(b) remove by force any person or thing obstructing him or resisting any arrest, detention, search, inspection, seizure or removal that he is empowered to make or carry out;
(c) detain any person found in any place that he is empowered or authorized to search until such place has been searched.
(8) A magistrate or court may, upon application by or on behalf of the Telecommunications Authority or by any public officer authorized in writing in that behalf by the Telecommunications Authority, order that any unauthorized decoder in respect of which there has been a contravention or attempted contravention of this section shall be forfeited to the Government, whether or not proceedings have been taken against any person in respect of the contravention or attempted contravention.

(9) In this section, “unauthorized decoder” (未經批准的解碼器) means a decoder by means of which encrypted television programmes provided under a licence can be viewed in decoded form without payment of a subscription where a subscription is required to be paid.

7. Offence of providing decoders and reception equipment for television programme service on subscription basis without licence

(1) Subject to subsection (2), a person shall not, in the course of trade or business, import, export, manufacture, sell, offer for sale or let for hire any decoder for use by a Television Receive Only System to receive a broadcasting service which is not licensed on a subscription basis.

(2) Subsection (1) shall not apply in relation to—

(a) an encrypted broadcasting service which is licensed other than on a subscription basis; or
(b) a decoder, or a decoder belonging to a class of decoders, which is not a decoder for the purposes of subsection (1) in accordance with the provisions of a notice under subsection (4).
(3) A person who contravenes subsection (1) commits an offence and is liable—

(a) on summary conviction, to a fine at level 6 and to imprisonment for 2 years;
(b) on conviction on indictment, to a fine of $1,000,000 and to imprisonment for 5 years.
(4) The Telecommunications Authority may, by notice in the Gazette, declare a decoder, or a class of decoders, specified in the notice not to be a decoder, or a class of decoders, as the case may be, for the purposes of subsection (1).

(5) In this section, “Television Receive Only System” (單一接收電視系統) means a system for receiving satellite television signals for use by a single specified premises and the received signals are not distributed to others.

(6) For the avoidance of doubt, it is hereby declared that a notice under subsection (4) is subsidiary legislation.

PART IV
Licenses—General Provisions

8. To whom licence may be granted

(1) The Chief Executive in Council may in accordance with this Ordinance grant a licence to provide a domestic free television programme service or domestic pay television programme service on application made to him in the specified form by a company.

(2) The Broadcasting Authority may in accordance with this Ordinance grant a licence to provide a non-domestic television programme service or an other licensable television programme service on application made to it in the specified form by a company.

(3) Subject to subsection (4), a domestic free television programme service licence shall not be granted to a company which is a subsidiary of a corporation.

(4) Without prejudice to the operation of Schedules 1, 4, 5, 6 and 7, unless otherwise provided in this Ordinance, a licence shall not be granted to and held by a company unless—

(a) in the case of a domestic free television programme service licence or domestic pay television programme service licence—
(i) the company complies with paragraph (b) of the definition of “ordinarily resident in Hong Kong” in section 2(1);
(ii) the majority of the directors required under subparagraph (iv) actively participate in the direction of the company;
(iii) a quorum of every meeting of the directors of the company has a majority of directors who is each for the time being ordinarily resident in Hong Kong in accordance with paragraph (a) of the definition of “ordinarily resident in Hong Kong” in section 2(1) and has been so resident for at least one continuous period of not less than 7 years;
(iv) except with the prior approval in writing of the Broadcasting Authority, the majority of the directors of the company and the majority of the principal officers of the company, including the principal officer of the company in charge of the selection, production or scheduling of television programmes, is each an individual who is for the time being ordinarily resident in Hong Kong in accordance with paragraph (a) of the definition of “ordinarily resident in Hong Kong” in section 2(1) and has been so resident for at least one continuous period of not less than 7 years; and
(v) no disqualified person, other than a person whose disqualification is disclosed in the application for the licence, exercises control in the company;
(b) in the case of a non-domestic television programme service licence or an other licensable television programme service licence, not less than one director or principal officer of the company is an individual who is for the time being ordinarily resident in Hong Kong in accordance with paragraph (a) of the definition of “ordinarily resident in Hong Kong” in section 2(1) and has been so resident for at least one continuous period of not less than 7 years; and
(c) in the case of any licence, the company is empowered under its memorandum and articles of association to comply fully with the provisions of this Ordinance and its licence conditions (whether actual or proposed).
9. Recommendations by the Broadcasting Authority on applications for licences

(1) An application for the purposes of section 8(1) or (2) shall be submitted to the Broadcasting Authority in the specified form.

(2) The Broadcasting Authority shall consider applications for a domestic free television programme service licence or a domestic pay television programme service licence and make recommendations thereon to the Chief Executive in Council.

(3) Where an application is submitted to the Broadcasting Authority, it shall—

(a) cause a notice to be published in the Gazette as soon as is practicable—
(i) stating the name of the applicant and the type of licence sought by the applicant together with such other particulars as the Broadcasting Authority thinks fit; and
(ii) stating that members of the public who are interested may make representations on the application to the Broadcasting Authority by a date specified in the notice, being a date not less than 21 days after the notice is published; and
(b) consider the representations, if any, received by the date.
10. Grant of licence

(1) The Chief Executive in Council may, after considering recommendations made pursuant to section 9(2), grant a licence under section 8(1) subject to such conditions as he thinks fit specified in the licence.

(2) Subject to subsection (3), the Broadcasting Authority may grant a licence under section 8(2) subject to such conditions as it thinks fit specified in the licence.

(3) The Chief Executive in Council, in the case of licences, or a class of licences, that may be granted under section 8(1) and the Broadcasting Authority, in the case of licences, or a class of licences, that may be granted under section 8(2), may by notice in writing specify conditions to which the licences shall be subject.

(4) The Chief Executive in Council or the Broadcasting Authority, as the case may require, may, where he or it considers it is in the public interest to do so, vary a licence at any time during its period of validity after the licensee has been given a reasonable opportunity to make representations under subsection (5).

(5) A licensee may make representations to the Broadcasting Authority in relation to any proposed variation under subsection (4) and, in the case of a licence granted by the Chief Executive in Council, the Broadcasting Authority shall fairly reflect the representations to the Chief Executive in Council.

(6) The Chief Executive in Council or the Broadcasting Authority, as the case may require, shall consider the representations, if any, made under subsection (5) before implementing any proposed variation under subsection (4).

(7) A licence or an interest in a licence shall not be transferred in whole or in part.

11. Extension or renewal of licence

(1) The Chief Executive in Council or the Broadcasting Authority, as the case may require, may, during the period of validity of a licence, extend or renew the licence, in accordance with the provisions of this Ordinance, to take effect upon expiry of the validity of the licence.

(2) A licensee shall submit to the Broadcasting Authority an application in the specified form—

(a) for the extension or renewal of its licence; and
(b) not less than 24 months, or such shorter period as the Broadcasting Authority may specify in a particular case, before the date on which the period of validity of the licence expires.
(3) The Broadcasting Authority shall, in respect of a domestic free television programme service licence or domestic pay television programme service licence, as soon as is practicable after the receipt of an application under subsection (2) and, in any case, not later than 12 months before the expiry of the period of validity of the licence, submit recommendations to the Chief Executive in Council in relation to the extension or non-extension or renewal or non-renewal of the licence, and where appropriate, the conditions subject to which the licence may be extended or renewed.

(4) Where subsection (3) applies to a domestic free television programme service licence, or a domestic pay television programme service licence, which may be extended or renewed for a period of 6 years or more, the Broadcasting Authority shall conduct a public hearing in accordance with procedures for the hearing determined by the Broadcasting Authority.

(5) Where recommendations are made under subsection (3), the Chief Executive in Council shall consider them and as soon as is practicable—

(a) extend or renew the licence to which they relate subject to such conditions as he thinks fit specified in the licence; or
(b) decide not to extend or renew the licence.
(6) In the case of a non-domestic television programme service licence or an other licensable television programme service licence, the Broadcasting Authority shall, at a time reasonable in all the circumstances of the case before the expiry of the licence—

(a) extend or renew the licence subject to such conditions as it thinks fit specified in the licence; or
(b) decide not to extend or renew the licence.
12. Determination of whether television programme service primarily targets Hong Kong

(1) A licensee (including a person seeking to be a licensee) shall, before providing a television programme service in or from Hong Kong, make an application in the specified form to the Broadcasting Authority for a determination on whether or not the service would, if provided, primarily target Hong Kong.

(2) The Broadcasting Authority shall, as soon as is practicable after the receipt of an application under subsection (1), make a determination in writing that the Broadcasting Authority is of the opinion that the television programme service the subject of the application, if provided—

(a) would primarily target Hong Kong; or
(b) would not primarily target Hong Kong.
(3) Where the Broadcasting Authority has made a determination under subsection (2), it shall as soon as is practicable after making the determination, serve a copy of the determination on the licensee (or person seeking to be a licensee) concerned together with a statement of its reasons in support of the determination.

(4) Subject to subsection (5), where the Broadcasting Authority ceases to be of the opinion that gave rise to a determination under subsection (2) (“old determination”), then—

(a) it shall make a further determination in writing (“new determination”) that the Broadcasting Authority is of the opinion that the television programme service the subject of the old determination—
(i) primarily targets Hong Kong; or
(ii) does not primarily target Hong Kong;
(b) it shall as soon as is practicable after making the new determination, serve a copy of the new determination on the licensee (or person seeking to be a licensee) concerned together with a statement of its reasons in support of the determination;
(c) upon the date the licensee (or person seeking to be a licensee) is served with a copy of the new determination, the old determination shall thereupon be deemed to be repealed unless the new determination provides for the repeal of the old determination at a later date; and

(d) this subsection shall, with all necessary modifications, apply to the new determination as it applies to the old determination should the Broadcasting Authority subsequently cease to be of the opinion that gave rise to the new determination.
(5) The Broadcasting Authority shall, before making a determination under subsection (4)—

(a) give the licensee concerned a reasonable opportunity to make representations to the Broadcasting Authority in relation to whether or not the television programme service concerned—
(i) primarily targets Hong Kong; or
(ii) does not primarily target Hong Kong; and
(b) consider the representations, if any, made.
(6) In determining whether or not a television programme service primarily targets Hong Kong, account shall be taken of, but not limited to, the following matters—

(a) whether the service covers Hong Kong;
(b) whether the sources of advertising and subscription revenues, where applicable, of the service are derived principally from Hong Kong;
(c) the language of the service and the nature and size of the audiences targeted by the service; and
(d) whether the service is actively marketed in Hong Kong by the licensee or by a third party on its behalf.
(7) In this section, “television programme service” (電視節目服務) includes any part of a television programme service.

PART V
Requirements Relating to Licensed Services

13. Prohibition on anti-competitive conduct

(1) Subject to subsections (4) and (5), a licensee shall not engage in conduct which, in the opinion of the Broadcasting Authority, has the purpose or effect of preventing, distorting or substantially restricting competition in a television programme service market.

(2) The Broadcasting Authority may consider conduct to fall within subsection (1) as including, but not limited to—

(a) direct or indirect agreements to fix the price in a television programme service market;

(b) conduct preventing or restricting the supply of goods or services to competitors;
(c) direct or indirect agreements between licensees to share any television programme service market between them on agreed geographic or customer lines;
(d) limiting or controlling production, markets, technical development or investment;
(e) applying dissimilar conditions to equivalent agreements with other trading parties, thereby placing them at a competitive disadvantage;
(f) making the conclusion of agreements subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such agreements.
(3) Subject to subsection (4), a provision in an agreement is void in so far as it provides for or permits, whether directly or indirectly, conduct which contravenes subsection (1).

(4) The Broadcasting Authority may—

(a) on an application made to it in the specified form by a licensee;
(b) on a prescribed ground; and
(c) by notice in writing served on the licensee,
exempt conduct specified in the application from subsection (1) subject to such conditions as the Broadcasting Authority thinks fit specified in the notice.

(5) Subsection (1) shall not apply to—

(a) any restriction imposed on the inclusion in a television programme service of a television programme produced wholly or substantially by the licensee of the service; or
(b) any prescribed restriction.
(6) For the avoidance of doubt, it is hereby declared that nothing in this section shall prejudice the existence of any rights arising from the operation of the law relating to copyright or trademarks.

14. Prohibition on abuse of dominance

(1) A licensee in a dominant position in a television programme service market shall not abuse its position.

(2) A licensee is in a dominant position when, in the opinion of the Broadcasting Authority, it is able to act without significant competitive restraint from its competitors and customers.

(3) In considering whether a licensee is dominant, the Broadcasting Authority shall have regard to relevant matters including, but not limited to—

(a) the market share of the licensee;
(b) the licensee’s power to make pricing and other decisions;

(c) any barriers to entry to competitors into the relevant television programme service market;
(d) such other relevant matters as may be stipulated in guidelines concerning the test of dominance issued under section 4 by the Broadcasting Authority in consultation with the licensees in the relevant television programme service market.
(4) A licensee who is in a dominant position is deemed to have abused its position if, in the opinion of the Broadcasting Authority, the licensee has engaged in conduct which has the purpose or effect of preventing, distorting or substantially restricting competition in a television programme service market.

(5) The Broadcasting Authority may consider conduct to fall within the conduct mentioned in subsection (4) as including, but not limited to—

(a) predatory pricing;
(b) price discrimination, except to the extent that the discrimination only makes reasonable allowance for differences in the costs or likely costs of supplying the service or other matter;
(c) making the conclusion of agreements subject to acceptance by other parties of terms or conditions which are harsh or unrelated to the subject of the agreement;
(d) discrimination in the supply of services to competitors.
15. Provisions supplementary to sections 13 and 14

(1) The conduct of an associate of a licensee, or the position of the associate in a television programme service market, may be considered for the purposes of section 13 or 14.

(2) A person sustaining loss or damage from a breach of section 13(1) or 14(1), or a breach of a licence condition, determination or direction relating to that section, may bring an action for damages, an injunction or other appropriate remedy, order or relief against the licensee who is in breach.

(3) No action may be brought under subsection (2) more than 3 years after—

(a) the commission of the breach concerned referred to in that subsection; or
(b) the imposition under section 28 of a penalty in relation to the breach,
whichever is the later.

(4) For the avoidance of doubt, it is hereby declared that a breach of section 13(1) or 14(1) occurs when the Broadcasting Authority forms the opinion referred to in section 13(1) or 14(4) respectively.

16. Notice to licensee to cease certain conduct

The Broadcasting Authority may, by notice in writing served on a licensee—

(a) require the licensee to cease and desist on and after a date specified in the notice from conduct specified in the notice as conduct which the Broadcasting Authority states in the notice that it is of the opinion that it contravenes section 13(1) or 14(1);
(b) direct the licensee to take such steps as are specified in the notice, and within the period specified in the notice, as the Broadcasting Authority considers appropriate for the purpose of securing, or assisting the securing of, the licensee’s compliance with that section.
17. Separate accounting

(1) Where a licensee holds a licence under the Telecommunications Ordinance (Cap. 106), it shall adopt accounting practices which ensure that—

(a) its activities in relation to its licence under this Ordinance can be readily understood without reference to its activities in relation to its licence under that Ordinance; and
(b) its activities in relation to its licence under the Telecommunications Ordinance (Cap. 106) can be readily understood without reference to its activities in relation to its licence under this Ordinance.
(2) The Broadcasting Authority may, by notice in writing served on a licensee to which subsection (1) applies, direct the licensee to adopt an accounting practice—

(a) specified in the direction;
(b) for the purpose of securing, or assisting the securing of, compliance with that subsection; and
(c) which is consistent with generally accepted accounting principles in Hong Kong.
18. Service provision requirements

(1) Subject to subsection (2), a licensee the licensed service of which is a domestic free television programme service or domestic pay television programme service shall, within such period as is specified in the licence or such other period as may be determined in writing by the Broadcasting Authority, provide the service in such manner as to enable the service to be received throughout Hong Kong to the satisfaction of the Broadcasting Authority or, in the case of a domestic pay television programme service, such parts of Hong Kong as are specified for the purposes in the licence.

(2) The Broadcasting Authority may, by notice in writing served on a licensee, exempt the licensee from complying with subsection (1) in relation to any parts of Hong Kong specified in the notice and during any period specified in the notice.

19. Television programmes for schools

The Broadcasting Authority may, by notice in writing served on a domestic free television programme service licensee, require the licensee to include in its licensed service, without charge, any educational television programme for schools supplied by the Government.

20. Television programme service locking device

A licensee (except a domestic free television programme service licensee) shall provide a television programme service locking device to the satisfaction of the Broadcasting Authority where its licensed service is—

(a) a domestic pay television programme service;
(b) a non-domestic television programme service provided in Hong Kong where a subscription is required to be paid for the service provided in Hong Kong; or
(c) an other licensable television service,
but excluding such a service provided to hotel rooms.

21. Restrictions on persons not regarded as fit and proper

(1) A licensee and any person exercising control of the licensee shall be and remain a fit and proper person.

(2) Subject to subsection (3), a licensee shall, on or before the 1st of April of each year, provide information in the specified form to the Broadcasting Authority to enable the Broadcasting Authority to establish and verify whether the licensee or a person exercising control of the licensee is a fit and proper person.

(3) Subsection (2) shall not apply to a licensee which has been a licensee for less than 4 months.

(4) In determining whether a licensee or person exercising control over the licensee is a fit and proper person, account shall be taken of—

(a) the business record of the licensee or person;
(b) the record of the licensee or person in situations requiring trust and candour;
(c) the criminal record in Hong Kong of the licensee or person in respect of offences under the laws of Hong Kong involving bribery, false accounting, corruption or dishonesty; and

(d) the criminal record in places outside Hong Kong of the licensee or person in respect of conduct which, if done in Hong Kong, would constitute or form part of the criminal record in Hong Kong of the licensee or person as mentioned in paragraph (c).
22. Prevention of interference with programming independence of licensees

(1) A licensee shall not, except in respect of material the supply of which it is contracting for its licensed service, agree to include or to refrain from including in its licensed service any material.

(2) Any provision in an agreement which requires a licensee to include or to refrain from including in its licensed service any material, other than material to be supplied under the agreement, shall not be enforceable against the licensee.

23. General requirements as to television programme services

(1) A licensee shall be responsible at all times for ensuring that its licensed service does not include a subliminal message.

(2) Subject to subsection (3), a licensee shall—

(a) comply with its licence conditions;
(b) comply with any requirements under this Ordinance which are applicable to it;
(c) comply with any directions, orders, or determinations, under this Ordinance which are applicable to it;
(d) comply with all provisions in a Code of Practice which are applicable to it; and
(e) without prejudice to the operation of any Code of Practice which relates to this section, to any regulations under section 42(1)(e) or to the Broadcasting Authority’s functions under section 9 of the Broadcasting Authority Ordinance (Cap. 391), secure proper standards for its licensed service with regard to television programme content and technical performance.
(3) Subsection (2) shall not apply in the case of material supplied by the Government.

(4) For the avoidance of doubt, it is hereby declared that the fact that any material included or to be included in a licensee’s licensed service is material exempted or approved for the purposes of exhibition or publication under the Film Censorship Ordinance (Cap. 392) does not by itself relieve the licensee of any obligation under this Ordinance.

(5) In this section—

“standards” (標準), in relation to television programme content, includes restrictions on the time of day when content of a particular class may be provided;

“subliminal message” (潛送訊息) means the transmission of material the duration of which is so brief that it does not enable a person to obtain a conscious picture of the material.

PART VI
Enforcement of Licenses

24. Directions of Broadcasting Authority and Telecommunications Authority

(1) The Broadcasting Authority may issue directions in writing to a licensee (except directions relating to technical standards) requiring it to take such action specified in the notice as the Broadcasting Authority considers necessary in order for the licensee to comply with any requirement under a prescribed Ordinance, any licence condition or any provision in a Code of Practice applicable to it.

(2) The Telecommunications Authority may issue directions in writing to a licensee requiring it to take such action specified in the notice with regard to technical standards as the Telecommunications Authority considers necessary in order for the licensee to comply with any requirement under a prescribed Ordinance, any licence condition or any provision in a Code of Practice applicable to it.

(3) The Broadcasting Authority shall cause directions under subsection (1) to be published in the Gazette or in such other manner as it thinks fit.

25. Investigation of licensee’s business

(1) Where the Broadcasting Authority is satisfied that it is necessary for the proper performance of its functions under a prescribed Ordinance in order to ensure a licensee’s compliance with a licence condition, a requirement under the Ordinance which is applicable to it, a direction, order, or determination, under the Ordinance which is applicable to it, or a provision in a Code of Practice which is applicable to it, it may authorize in writing any person to do all or any of the following at such times as are specified by it in the authorization—

(a) require a licensee or a person whom such authorized person reasonably believes to be employed or engaged in connection with the relevant business of a person to whom this section applies to produce for examination any data, book, document or record which relates to such business and which is in the possession or under the control of the licensee or person, as the case may be;
(b) examine and, if he thinks fit, to take copies of any data, book, document or record produced under paragraph (a) or any entry therein;
(c) remove the data, book, document or record referred to in paragraph (a) or the copies referred to in paragraph (b) for examination by him and the Broadcasting Authority; and
(d) require a licensee or a person whom such authorized person reasonably believes to be employed or engaged in connection with the relevant business of a person to which this section applies to give the authorized person and the Broadcasting Authority any explanation or further particulars as specified by the authorized person in respect of any data, book, document or record produced under paragraph (a).
(2) Where any information or matter relevant to an investigation under this section is recorded otherwise than in a readily legible or comprehensible form, the powers conferred by subsection (1) to require the production of any data, book, document or record shall include power to require the production or reproduction of the data, book, document or record of a relevant part of it in a readily legible and comprehensible form.

(3) A magistrate may, if satisfied by information on oath laid by the chairman or vice chairman of the Broadcasting Authority or by the principal executive officer within the meaning of the Broadcasting Authority Ordinance (Cap. 391)—

(a) that it is necessary for the proper performance of the functions of the Broadcasting Authority as referred to in subsection (1) that entry be obtained to any premises which the chairman, vice chairman or principal executive officer has reasonable grounds for believing is used or occupied by a person to whom this section applies for the purposes of keeping, storing or using any data, book, document or record which relates to the relevant business of the person to whom this section applies; and
(b) that permission to enter such premises has been refused or that entry is likely to be refused,
issue a warrant authorizing a person authorized under subsection (1) to enter such premises, and such person—

(i) may exercise therein the powers specified in subsection (1); and

(ii) copy, seize, remove and detain any data, book, document or record therein or any copy thereof which the authorized person has reasonable grounds for believing will afford evidence likely to assist the Broadcasting Authority in the proper performance of its functions under this Ordinance.
(4) A person who is an employee, director, principal officer or agent of a person to whom this section applies shall assist and shall not obstruct a person exercising a power under this section.

(5) Any data, book, document or record removed under this section may be retained for any period not exceeding 6 months beginning on the day of its removal or, where the data, book, document or record is required in connection with any criminal proceedings, for such longer period as may be necessary for the purposes of those proceedings.

(6) Where a person removes any data, book, document or record under this section, he shall, as soon as is practicable, give a receipt for it, and he shall permit any person who would be entitled to inspect it but for its removal to inspect the same at any reasonable time and to make copies of and take extracts from it; but any such permission shall be subject to such reasonable conditions as to security or otherwise as the Broadcasting Authority may impose.

(7) Every person exercising any power under subsection (1) or (3) shall be furnished with a copy of his authorization and shall, upon request, produce for inspection, evidence of his identity and of his authorization.

(8) The powers conferred by subsections (1)(a) or (b) and (3) include a power—

(a) to require the person mentioned in subsection (1)(a) to extract or retrieve, or cause to be extracted or retrieved, in a visual or printed or other written form or on a computer disc, or in both, any information referred to in subsection (10) and specified by the person exercising the power, and if when extracted or retrieved the information is in a printed or other written form, to require the person so described to deliver it to the person exercising the power;
(b) to extract or retrieve himself, in either of or both such forms, by means of the equipment normally used for that purpose, any information so referred to; and
(c) to examine any information so extracted or retrieved and if thought fit to remove it.
(9) This section applies to a person who is a licensee or its associate.

(10) In this section— “data, book, document or record” (數據、簿冊、文件或紀錄) includes any information which—

(a) relates to a relevant business; and

(b) is recorded in a form in which it can be extracted or retrieved by equipment operating automatically in response to instructions given for that purpose.
“relevant business” (有關業務) means business directly connected or associated with the provision of a television programme service.

(11) For the avoidance of doubt, it is hereby declared that the provisions of Part XII of the Interpretation and General Clauses Ordinance (Cap. 1) apply to this section.

26. Broadcasting Authority may obtain information

(1) If the Broadcasting Authority is satisfied that there are reasonable grounds for believing that a person, other than a licensee, is, or is likely to be, in possession of information or a document that is relevant to the Broadcasting Authority’s investigation of a breach or suspected breach of a licence condition, a requirement under this Ordinance, or a direction, order, or determination, under this Ordinance, the Broadcasting Authority may serve a notice in writing on the person—

(a) requesting the person to—
(i) give the information or document in writing to the Broadcasting Authority; or
(ii) produce the document to the Broadcasting Authority,
as the case requires, before a date (“the relevant date”) specified in the notice, being a date reasonable in all the circumstances of the case;
(b) stating that if the person is of the view that he cannot, or does not wish to, comply with the request, then he may make representations in writing to the Broadcasting Authority as to why he is of that view before the relevant date; and
(c) accompanied by a copy of this section in the Chinese and English languages.
(2) Where the Broadcasting Authority receives representations referred to in subsection (1)(b) from a person, the Broadcasting Authority shall—

(a) consider them; and
(b) serve a notice in writing on the person stating that the Broadcasting Authority has considered the representations and that—
(i) the notice under subsection (1) served on the person is withdrawn with effect from the date of service of the notice under this subsection; or

(ii) the notice under subsection (1) served on the person remains in force and the Broadcasting Authority will on a date specified in the notice under this subsection seek an order under subsection (3) unless the person has, before the date, complied with the notice under subsection (1) served on the person.
(3) Where a notice under subsection (1) served on a person has not been withdrawn under subsection (2)(b)(i) and the person has not complied with the notice before the relevant date, or before the date specified in the notice under subsection (2) served on the person, as the case requires, then a magistrate may—

(a) if satisfied by information on oath that there are reasonable grounds for believing that the person is, or is likely to be, in possession of the information or a document to which the first-mentioned notice relates and that the information or document is relevant to the Broadcasting Authority’s investigation of a breach or suspected breach of a licence condition, a requirement under this Ordinance, or a direction, order, or determination, under this Ordinance; and
(b) after considering the representations, if any, referred to in subsection (1)(b) received by the Broadcasting Authority in consequence of the service of the notice, issue an order that the person shall, within the time specified in the order, give the information or document in writing to the Broadcasting Authority or produce the document to the Broadcasting Authority, as the case requires.
(4) Any information or document to be given or produced to the Broadcasting Authority by a person in compliance with a notice under subsection (1) or an order under subsection (3) shall be so given or produced by reference to the information or document at the time of service of that notice except that the information or document may take account of any processing—

(a) made between that time and the time when the information or document is so given or produced; and
(b) that would have been made irrespective of the service of that notice.
(5) The Broadcasting Authority shall not disclose any information or document given or produced to him under this section except subject to the requirement in subsection (6) and if the Broadcasting Authority considers that it is in the public interest to disclose that information or document, as the case may be.

(6) The Broadcasting Authority shall give a person giving or producing any information or document under this section a reasonable opportunity to make representations on a proposed disclosure of the information or document, as the case may be, and shall consider all representations made before the Broadcasting Authority makes a final decision to disclose the information or document, as the case may be.

(7) For the avoidance of doubt, it is hereby declared that where a person gives or produces any information or document under this section notwithstanding that the information or document is the subject of a confidentiality agreement with another person that prevents the first-mentioned person from releasing the information or document, the first-mentioned person shall not be liable for any civil liability or claim whatever in respect of the giving or production of that information or document contrary to that agreement.

(8) A person commits an offence if he, without reasonable excuse—

(a) fails to comply with an order under subsection (3);
(b) fails to comply with subsection (4); or
(c) in purported compliance with a notice under subsection (1) or an order under subsection (3), knowingly gives information that is false or misleading,
and shall be liable on conviction to a fine at level 5 and to imprisonment for 2 years.

(9) In this section, “processing” (處理), in relation to any information or document, includes amending, augmenting, deleting or rearranging all or any part of the information or document, whether by automated means or otherwise.

27. Confidential matter to be safeguarded

(1) Subject to subsection (2)—

(a) any information which is furnished, and any data, book, document or record which is produced, by a person in confidence to the Broadcasting Authority or any person authorized by it or any committee appointed by it or by that committee, the Telecommunications Authority or any person authorized by him, shall be treated as confidential; and
(b) unless the person otherwise permits in writing and except in accordance with such permission, no such information, data, book, document or record or any copy thereof shall be divulged or shown to any person other than in confidence to members of the Broadcasting Authority or any committee appointed thereby, or to a public officer acting in the performance of his duties or for the purposes of this Ordinance or the Broadcasting Authority Ordinance (Cap. 391).
(2) Subsection (1) shall not be construed as prohibiting the disclosure of information—

(a) with a view to the institution of or otherwise for the purposes of any criminal proceedings or any investigation in connection therewith, whether under this Ordinance or otherwise, in Hong Kong;
(b) in connection with civil proceedings to which the Broadcasting Authority is a party;
(c) which facilitates the Broadcasting Authority or the Telecommunications Authority investigating or determining a complaint that a licensee is engaging in conduct that contravenes a provision of a prescribed Ordinance; or
(d) subject to subsection (3), which the Broadcasting Authority considers it is in the public interest to disclose.
(3) The Broadcasting Authority shall give the person supplying the information in confidence a reasonable opportunity to make representations on a proposed disclosure of the information under subsection (2)(c) or (d) and shall consider all representations made before the Broadcasting Authority makes a final decision to disclose the information.

(4) A person may permit, subject to such conditions as the person may specify, the Broadcasting Authority, the Telecommunications Authority or any person authorized by the Broadcasting Authority or the Telecommunications Authority—

(a) to divulge specified information which the person has given thereto; or
(b) to show any specified document or any copy thereof which the person has produced thereto,
to any person or to any specified person.

(5) In this section, “data, book, document or record” (數據、簿冊、文件或紀錄) means the same as it does in section 25(10).

28. Licensee to pay financial penalty

(1) Subject to this section, the Broadcasting Authority may, by notice in writing served on a licensee, require the licensee to pay the financial penalty specified in the notice where that penalty may be imposed by virtue of this section.

(2) The Broadcasting Authority may impose a financial penalty on a licensee if it is satisfied that the licensee contravened—

(a) a licence condition;
(b) a requirement under this Ordinance which is applicable to it;
(c) a direction, order, or determination, under this Ordinance which is applicable to it; or
(d) a provision in a Code of Practice which is applicable to it.
(3) The financial penalties imposed under this section shall not exceed $200,000 for the first occasion on which a penalty is imposed, $400,000 for the second occasion on which a penalty is imposed, and $1,000,000 for any subsequent occasion on which a penalty is imposed.

(4) Where the Broadcasting Authority considers that if it were to impose a financial penalty under subsection (3) it would not be adequate for a breach of section 13(1) or 14(1)—

(a) the Broadcasting Authority may—
(i) within 3 years of the commission of the breach; or
(ii) if the breach comes to the notice of the Broadcasting Authority within 3 years of its commission, within 3 years of it so coming to the notice of the Broadcasting Authority, whichever is the later, make an application to the Court of First Instance; and
(b) upon such application, the Court of First Instance may, without prejudice to any powers conferred on the Broadcasting Authority by any provision of this Ordinance or any regulation made thereunder or any licence condition, impose upon the licensee who has committed the breach a financial penalty of a sum not exceeding 10% of the turnover of the licensee in the relevant television programme service market in the period of the breach, or $2,000,000, whichever is the higher, and also specify when any such financial penalty is due for payment.
(5) The Broadcasting Authority shall not impose a financial penalty under this section unless, in all the circumstances of the case, the financial penalty is proportionate and reasonable in relation to the failure or series of failures concerned giving rise to that penalty.

(6) The Broadcasting Authority shall not impose a financial penalty unless it has given the licensee a reasonable opportunity to make representations to it in relation to the matters in respect of which a financial penalty is proposed to be imposed.

(7) The Broadcasting Authority shall not impose a financial penalty in respect of a contravention by a licensee of a licence condition where a performance bond has been called in respect of the contravention.

(8) The Broadcasting Authority shall not impose a financial penalty in respect of a contravention by a licensee of a requirement under this Ordinance where the licensee has been convicted of an offence in respect of the contravention.

29. Recovery of financial penalty

(1) A financial penalty required to be paid under section 28(1) may be recovered by the Broadcasting Authority as a civil debt.

(2) Where, on an appeal under section 34, the Chief Executive in Council—

(a) remits a financial penalty, subsection (1) shall not apply; or
(b) reduces the amount of a financial penalty, subsection (1) shall apply in respect of the reduced financial penalty.
(3) A certificate in writing purporting to have been made by the Broadcasting Authority to the effect that a financial penalty is due and payable to the Broadcasting Authority shall be prima facie evidence of that fact.

(4) A licensee shall pay to the Director of Accounting Services the financial penalty imposed by a notice under section 28(1) served on it not later than 30 days after the date on which the notice is served.

30. Licensee to include correction or apology in television programme service

(1) Subject to subsection (3), the Broadcasting Authority may, in a case falling within subsection (2), by notice in writing served on a licensee, direct the licensee to include in its licensed service a correction or apology, or both, in a form approved by the Broadcasting Authority, in such manner (including within such period and within such time of day) as is specified in the notice.

(2) The Broadcasting Authority may issue a direction under subsection (1) if it is satisfied that the licensee contravened—

(a) a licence condition;
(b) a requirement under this Ordinance which is applicable to it;
(c) a direction, order, or determination, under this Ordinance which is applicable to it; or
(d) a provision of a Code of Practice which is applicable to it.
(3) The Broadcasting Authority shall not issue a direction under subsection (1) unless the licensee has been given a reasonable opportunity to make representations to the Broadcasting Authority regarding the matter complained of.

(4) Where a licensee carries out a direction under this section, it may announce that it is doing so pursuant to the direction.

31. Suspension of licence

(1) Subject to the provisions of this section, the Broadcasting Authority may, by notice in writing served on a licensee, suspend its licence for a period of not more than 30 days as is specified in the notice.

(2) A licence shall only be suspended under subsection (1)—

(a) for failure by the licensee to pay—
(i) any licence fee, or any other fee or charge owing by the licensee under this Ordinance, within 30 days beginning on the date the payment is due; or

(ii) any financial penalty when it is due for payment—
(A) as specified by the Court of First Instance under section 28(4)(b); or
(B) under section 29(4); or
(b) if, as may be applicable in the particular case, having regard to all the circumstances, including the number of occasions and the gravity in respect of which, after the issue of the licence—
(i) the licensee has contravened—
(A) a licence condition;
(B) a requirement under this Ordinance which is applicable to it;
(C) a direction, order, or determination, under this Ordinance which is applicable to it; or
(D) a provision of a Code of Practice which is applicable to it;
(ii) another person has contravened a condition, requirement, direction, order, determination or provision mentioned in subparagraph (i) and such contravention has taken place with the consent or connivance of the licensee.
(3) The Broadcasting Authority shall, before making a decision whether or not to suspend a licence under subsection (1)—

(a) serve on the licensee a notice in writing stating that—
(i) the Broadcasting Authority has under consideration the suspension of the licence and the grounds upon which and any other reason why such suspension is being considered;
(ii) representations as regards the proposed suspension may be made to the Broadcasting Authority during the period specified in the notice (being a period of not less than 28 days beginning on the date of service of the notice); and
(b) consider any representations made to it in relation to the proposed suspension; and
(c) in the case of a domestic free television programme service or a domestic pay television programme service where subsection (2)(b) is applicable, conduct a public hearing in accordance with procedures for the hearing determined by the Broadcasting Authority.
(4) The suspension of a licence under subsection (1) shall not come into force—

(a) subject to paragraph (b), until the expiration of the period during which an appeal under section 34 against the suspension may be made; or
(b) if an appeal under section 34 against the suspension is made, until the appeal is withdrawn, abandoned or determined.
32. Revocation of licence

(1) Where the Broadcasting Authority considers that there may be cause for the Chief Executive in Council or it, as the case may require, to revoke a licence under subsection (4), it shall conduct an inquiry in accordance with section 33 and, if the licence was granted by the Chief Executive in Council, submit recommendations to the Chief Executive in Council concerning the revocation.

(2) The Broadcasting Authority may as part of its inquiry, and shall where its inquiry concerns the provisions of subsection (4)(c), conduct a public hearing in accordance with procedures for the hearing determined by the Broadcasting Authority.

(3) Without prejudice to the generality of procedures which the Broadcasting Authority may determine under subsection (2), it—

(a) may, notwithstanding section 27, divulge any data, book, document or record it has received in the course of the public hearing to any person it considers appropriate on terms of confidentiality or otherwise or treat the same as confidential; and
(b) shall publish in such manner as it considers fit a report of the public hearing and, if the licence was granted by the Chief Executive in Council, together with its recommendations to the Chief Executive in Council.
(4) After section 33 has been complied with but subject to subsection (5), the Chief Executive in Council or the Broadcasting Authority, as the case may require, may, by notice in writing served on the licensee, revoke a licence—

(a) for failure by the licensee to pay—
(i) any licence fee, or any other fee or charge owing by the licensee under this Ordinance, within 60 days beginning on the date the payment is due; or
(ii) any financial penalty within 60 days beginning on the date the payment is due—
(A) as specified by the Court of First Instance under section 28(4)(b); or
(B) under section 29(4);
(b) if the licensee—
(i) goes into compulsory liquidation or into voluntary liquidation other than for the purposes of amalgamation or reconstruction; or
(ii) enters into a composition or arrangement with its creditors; or

(c) if, as may be applicable in the particular case, having regard to all the circumstances, including the number of occasions and the gravity in respect of which, after the issue of the licence—
(i) the licensee has contravened—
(A) a licence condition;
(B) a requirement under this Ordinance which is applicable to it;
(C) a direction, order, or determination, under this Ordinance which is applicable to it; or
(D) a provision in a Code of Practice which is applicable to it,
and the licensee has failed to comply with a direction under section 24(1) relating to that contravention;
(ii) another person has contravened a condition, requirement, direction, order, determination or provision mentioned in subparagraph (i) and such contravention has taken place with the consent or connivance of the licensee.
(5) The Chief Executive in Council or the Broadcasting Authority shall not exercise a power under subsection (4) until after considering—

(a) in the case of the Chief Executive in Council, the recommendations of the Broadcasting Authority; and
(b) in the case of both the Chief Executive in Council and the Broadcasting Authority, such information, matter and advice as he or it thinks fit.
(6) The revocation by the Chief Executive in Council under subsection (4) of a licence shall take effect on the date the notice of the revocation is served on the licensee or on such later date as is specified in the notice.

(7) The revocation by the Broadcasting Authority under subsection (4) of a licence shall not take effect—

(a) subject to paragraph (b), until the expiration of the period during which an appeal under section 34 against the revocation may be made; or
(b) if an appeal under section 34 against the revocation is made, until the appeal is withdrawn, abandoned or determined.
33. Inquiry by Broadcasting Authority

(1) Where the Broadcasting Authority conducts an inquiry under section 32(1), it may consider information and matter received from any source.

(2) The following provisions shall apply in relation to an inquiry under section 32(1)—

(a) the Broadcasting Authority shall serve on the licensee a notice in writing stating—

(i) that the revocation of its licence is under consideration;
(ii) the grounds upon which and any other reason why the revocation of its licence is being considered; and
(iii) that representations as regards the proposed revocation may be made to the Broadcasting Authority during such period as shall be specified in the notice (being a period of not less than 28 days beginning on the date of service of the notice);
(b) the Broadcasting Authority shall consider any representations made to it as regards the proposed revocation.
(3) The Broadcasting Authority shall consider any representations submitted by the licensee and such further information and matter as it may consider necessary by reason of such representations.

34. Appeal to Chief Executive in Council

(1) Subject to the provisions of this section, a licensee (including a person seeking to be a licensee) aggrieved by—

(a) a decision of—
(i) the Broadcasting Authority in the exercise of a discretion conferred on it under this Ordinance or the Broadcasting Authority Ordinance (Cap. 391) (including a decision to specify a condition in a licence); or
(ii) the Telecommunications Authority in the exercise of a discretion conferred on him under this Ordinance;
(b) anything contained in a direction, order, or determination, under this Ordinance; or
(c) anything contained in a Code of Practice, may appeal by way of petition to the Chief Executive in Council, not later than 30 days beginning on the date of the relevant decision, the issue or making of the direction, order, or determination, or the publication of the Code of Practice, as the case may be.
(2) Subject to sections 31(4) and 32(7), pending the determination of an appeal under subsection (1), the licensee shall comply with the matter mentioned in that subsection being appealed against.

35. Determination of appeal

(1) In determining an appeal under section 34, the Chief Executive in Council—

(a) may receive information and advice from the Broadcasting Authority or any other person he considers appropriate; and

(b) shall afford the licensee concerned a reasonable opportunity to make representations on such information and advice, if any, received.
(2) The Chief Executive in Council may determine an appeal by confirming, varying or reversing the decision, direction, order, or determination, appealed against or, where appropriate, by directing that the relevant provision of the Code of Practice be amended as specified by him.

PART VII
Prohibition and Proscription by Court

36. Court may prohibit certain television programmes, etc.

(1) A licensee shall not include in its licensed service a television programme, or any part thereof, that is likely, in Hong Kong, to—

(a) incite hatred against any group of persons, being a group defined by reference to colour, race, sex, religion, nationality or ethnic or national origins;
(b) result in a general breakdown in law and order; or
(c) gravely damage public health or morals.
(2) Where the Chief Secretary reasonably believes that the inclusion of a television programme, or any part thereof, in a licensed service would contravene subsection (1), the Chief Secretary may apply to the Court of First Instance for an order under this section.

(3) In a case of urgency, the Chief Secretary may, under subsection (2), make an application for an interim order, ex parte and on affidavit, but otherwise the application shall be made by motion or summons.

(4) Where the Chief Secretary makes an application under subsection (2), the Court of First Instance may, where it is satisfied that the inclusion of a television programme, or any part thereof, in a licensed service would contravene subsection (1), make an order prohibiting the inclusion of the whole or any part of the programme in the licensed service and requiring any person who in the opinion of the Court would be knowingly involved in that contravention to take such steps as the Court may direct for the purpose of giving effect to the prohibition.

(5) Where the Chief Secretary makes an application under subsection (2), the Court of First Instance may, by order, require the licensee or any other person referred to in subsection (4) to produce to it any material in the possession or control of the licensee or other person and which relates to the television programme the subject of the application.

(6) Where subsection (3) applies to an application under subsection (2), the Court of First Instance shall not make an interim order under subsection (4) or (5) unless it is satisfied that it is a case of urgency.

(7) Any material produced under subsection (5) shall not be admissible in any criminal proceedings against the licensee, or person, producing it.

(8) Subject to subsection (9), rules of court may provide for—

(a) the discharge and variation of orders under this section;
(b) proceedings relating to such orders; and
(c) costs.
(9) The power to make rules of court under section 54 of the High Court Ordinance (Cap. 4) shall include the power to make rules of court for the purposes of this section.

(10) The jurisdiction of the Court of First Instance under this section shall not be exercised by the Registrar of the High Court or a Master of that Court.

PART VIII
Miscellaneous

37. Contests

Notwithstanding the provisions of the Gambling Ordinance (Cap. 148), contests which comply with the standards set out in a Code of Practice applicable to contests may be organized in connection with television programmes included in a licensed service and may form part of those programmes.

38. Inspection and testing of technical equipment

(1) The Telecommunications Authority or any person authorized in writing by him in that behalf may, at any reasonable time, inspect and test any equipment or part thereof used, or intended to be used, by a licensee for the provision of any television programme service for the purpose of ascertaining whether or not the licensee is complying with such technical standards as the Telecommunications Authority considers necessary in order for the licensee to comply with any requirement under a prescribed Ordinance, any licence condition or any provision in a Code of Practice applicable to it.

(2) The directors, principal officers and other employees of a licensee shall, for the purpose of any inspection or test under subsection (1)—

(a) make available on request to the Telecommunications Authority or any person authorized by him for the purpose of the inspection or test and permit to be inspected and tested any equipment or part thereof used, or intended to be used, for the provision of any television programme service;

(b) if so required by the Telecommunications Authority or such authorized person, give any explanation or particulars which the Telecommunications Authority or person considers necessary for the purposes of exercising his powers under this section; and
(c) assist the Telecommunications Authority or such authorized person in carrying out the inspection or test in any manner specified by the Telecommunications Authority or such person.
(3) Nothing in subsection (2) shall oblige any person to answer any question which incriminates or might incriminate him or which relates to matters not within his knowledge or to give information which cannot reasonably be expected to be in his possession or under his control.

39. Licensee to submit returns

(1) A licensee shall submit to the Broadcasting Authority on or before the 1st of April of each year a return in the specified form showing the names and places of residence of the directors and principal officers of the licensee and indicating whether or not those directors and principal officers are for the time being ordinarily resident in Hong Kong and have been so resident for at least one continuous period of not less than 7 years.

(2) A domestic free television programme service licensee or domestic pay television programme service licensee shall submit, at the same time as the return submitted under subsection (1), a statutory declaration made by the company secretary of, or a director of, the licensee showing whether or not any disqualified person has exercised any control in the licensee during the year immediately preceding the year to which the return relates.

(3) Without prejudice to the operation of subsection (1), where there is any change of directors or principal officers in a licensee, the licensee shall submit to the Broadcasting Authority a return in the specified form showing particulars of the change, within 7 days beginning on the date the change takes place.

(4) A licensee shall submit to the Broadcasting Authority, within a reasonable time after being required to do so, such other information as the Broadcasting Authority considers necessary for the purpose of performing its functions under this Ordinance.

40. Service of documents

(1) A document (howsoever described) required to be served under this Ordinance may be served by prepaying (where requisite), registering and posting an envelope addressed to the person on or to whom the document is to be served at his usual or last known place of abode or business and containing the document; and, unless there is evidence to the contrary, the document shall be deemed to have been served and received at the time at which such envelope would have been delivered in the ordinary course of post.

(2) For the purposes of this section, a company shall be deemed to have its usual place of business at its registered office, and any other body corporate shall be deemed to have a usual place of business at its principal office or any other place at which it carries on business.

41. Power of Broadcasting Authority to specify forms

(1) Subject to subsection (2), the Broadcasting Authority may specify the form of any document (howsoever described) required under this Ordinance to be in the specified form and the form of such other documents (howsoever described) required for the purposes of this Ordinance as it thinks fit.

(2) The Broadcasting Authority’s power under subsection (1) shall be subject to any express requirement under this Ordinance for a form, whether specified or otherwise, to comply with that requirement, but that requirement shall not restrict the exercise of that power in respect of that form to the extent that, in the opinion of the Broadcasting Authority, its exercise of that power in respect of that form does not contravene that requirement.

(3) The Broadcasting Authority’s power under subsection (1) may be exercised in such a way as to—

(a) include in the specified form of any document referred to in that subsection a statutory declaration—
(i) to be made by the person completing the form; and
(ii) as to whether the particulars contained in the form are true and correct to the best of that person’s knowledge and belief;
(b) specify 2 or more forms of any document referred to in that subsection, whether as alternatives, or to provide for particular circumstances or particular cases, as the Broadcasting Authority thinks fit.
(4) A form specified under this section shall be—

(a) completed in accordance with such directions and instructions as are specified in the form;
(b) accompanied by such documents as are specified in the form; and
(c) if the completed form is required to be provided to—
(i) the Broadcasting Authority;
(ii) another person on behalf of the Broadcasting Authority; or
(iii) any other person,
so provided in the manner, if any, specified in the form.
42. Regulations

(1) The Chief Executive in Council may by regulation—

(a) in relation to a licence, specify requirements, additional to those specified elsewhere in this Ordinance, with respect to the control, whether direct or indirect, to be exercised over the provision of television programme services, the board of directors, or property used or kept by the licensee in connection with its licensed service by any other person;
(b) empower the Broadcasting Authority to waive or dispense with the requirements mentioned in paragraph (a) generally or in a particular case on the grounds specified in the regulation;
(c) in relation to a domestic free television programme service licence or domestic pay television programme service licence, specify requirements, additional to those specified elsewhere in this Ordinance, with respect to the beneficial ownership or control, whether direct or indirect, of any of the voting shares in the licensee;
(d) for the purposes of securing compliance with Parts 3 and 4 of Schedule 1 by a domestic free television programme service licensee, make provision for—
(i) matters relating to voting controllers under that Schedule; and
(ii) the holding, acquisition or disposal of rights, titles and interests to or in voting shares in a licensee;
(e) specify television programme and advertising standards, including, without limitation, restrictions on the time of day when television programme and advertisements may be provided, and may do so for different licensees and different broadcasting services;
(f) prescribe anything that may be prescribed under this Ordinance;
(g) provide for any matter incidental or ancillary to or necessary to give effect to any matter referred to in paragraph (a), (b), (c), (d), (e) or (f).
(2) Subject to subsection (3), regulations under subsection (1) shall be subject to the approval of the Legislative Council.

(3) Subject to subsection (4), subsection (2) shall not apply to regulations under subsection (1)(f) or regulations under subsection (1)(g) to the extent that they relate to subsection (1)(f).

(4) Subsection (3) shall not apply to regulations relating to section 13(4)(b) or (5)(b).

(5) Subject to subsection (6), any regulation under this section may provide that a contravention of a specified provision of any regulation under any provision of this section shall be an offence punishable—

(a) on summary conviction to a fine at level 5 and to imprisonment for 6 months; and
(b) on conviction on indictment to a fine at level 6 and to imprisonment for 12 months.
(6) Regulations under subsection (1)(d) may provide that a contravention of a specified provision made thereunder shall be an offence punishable with a fine not exceeding $1,000,000 and a term of imprisonment not exceeding 2 years.

43. Amendment of Schedules 1 to 8, etc.

(1) The Chief Executive in Council may, by notice in the Gazette, amend any of Schedules 1 to 8 and amendments to Schedule 1 or 3 shall be subject to the approval of the Legislative Council.

(2) Any provision in Schedule 4, 5, 6 or 7 relating to any matter as regards an applicant for a licence, licensee or a licensed service shall be in addition to and not in substitution of any other provision in this Ordinance relating to that matter.

44. Repeal, transitional and savings provisions and consequential amendments

(1) The Television Ordinance (Cap. 52) is repealed.

(2) Schedule 8 sets out the transitional and savings provisions applicable upon subsection (1) coming into operation.

(3) The enactments specified in Schedule 9 are amended as set out in that Schedule.

⁠⁠⁠⁠

SCHEDULE 1

[ss. 2, 8, 42 & 43
& Schs. 4 & 8]

Disqualification for Holding Domestic Free or Pay Television Programme Service Licences and Restriction on Voting Control of Voting Controllers

PART 1
Interpretation and Application

1. Interpretation

(1) In this Schedule, unless the context otherwise requires—

“advertising agency” (廣告宣傳代理商) means a person who—

(a) carries on business as an advertising agent; or
(b) exercises control of a person who carries on business as an advertising agent;
“associate” (相聯者), in relation to a voting controller holding voting control (whether the controller is qualified or unqualified), means—

(a) where the voting controller holding the voting control is an individual—
(i) a relative of the voting controller;
(ii) a partner of the voting controller or a relative of the partner;
(iii) a partnership in which the voting controller is a partner;
(iv) a corporation influenced by—
(A) the voting controller;
(B) a partner of the voting controller; or
(C) a partnership in which the voting controller is a partner; or
(v) a director or principal officer of a corporation mentioned in paragraph (iv);
(b) where the voting controller holding the voting control is a corporation—
(i) an associated corporation;
(ii) a voting controller who—
(A) influences the corporation and, if the voting controller is an individual, a relative of the voting controller; or
(B) is a partner of the voting controller to whom or which sub-subparagraph (A) applies, and if the partner is an individual, a relative of the partner;
(iii) a director or principal officer of the corporation or of an associated corporation and a relative of the director or officer;
(iv) a partner of the corporation and, if the partner is an individual, a relative of the partner; or
(c) where the voting controller holding the voting control is a partnership—
(i) a member of the partnership and, if the partner is an individual, a relative of the member;
(ii) a partner of the partnership and, where the partner—
(A) is an individual, a relative of the partner; or
(B) is itself a partnership, a relative of a member of the partnership who is an individual;
(iii) a corporation influenced by—
(A) the partnership;
(B) a partner of it; or
(C) where the partner is an individual, a relative of the partner;
(iv) a corporation of which a partner of the partnership is a director or principal officer;
(v) a director or principal officer of a corporation mentioned in subparagraph (iii);
“associated corporation” (相聯法團), in relation to a voting controller holding voting control (whether qualified or unqualified), means—

(a) a corporation over which the voting controller has influence;
(b) a corporation which has influence over the voting controller being itself a corporation (“the second corporation”);
(c) a corporation which is under the influence of the second corporation;
“disqualified person” (不符合持牌資格人士) means a person who is a disqualified person under section 4, 5, 6 or 7;

“influence” (影響、影響力), in relation to a corporation, means the power of a voting controller to ensure—

(a) by means of the holding of shares or possession of voting power in or in relation to that or any other corporation; or
(b) by virtue of any powers conferred by the memorandum or articles of association regulating that or any other corporation,
that the affairs of the first-mentioned corporation are conducted in accordance with the wishes of the voting controller;

“licence” (牌照) means a domestic free television programme service licence or domestic pay television programme service licence;

“licensee” (持牌人) means the holder of a licence;

“licensee’s register” (持牌人登記冊), in relation to a particular licensee, means the register required to be kept under section 95 of the Companies Ordinance (Cap. 32);

“principal officer” (主要人員), in relation to a corporation, means—

(a) a person employed or engaged by the corporation who, by himself or with 1 or more other persons, is responsible under the immediate authority of the directors of the corporation for the conduct of the business of the corporation; or
(b) a person so employed or engaged who, under the immediate authority of a director of the corporation or a person to whom paragraph (a) applies, performs managerial functions in respect of the corporation;
“qualified voting controller” (一般表決控權人) means—

(a) a voting controller who—
(i) in the case of an individual, is ordinarily resident in Hong Kong in accordance with paragraph (a) of the definition of “ordinarily resident in Hong Kong” in section 2(1) of this Ordinance and has been so resident for at least one continuous period of not less than 7 years;
(ii) in the case of a corporation, is ordinarily resident in Hong Kong; or
(b) a voting controller who is—
(i) the trustee or manager of any unit trust or mutual fund corporation authorized under section 15 of the Securities Ordinance (Cap. 333);
(ii) the trustee of a charitable scheme made by order of a court of competent jurisdiction;
(iii) a judicial officer in whom the estate of a deceased is vested between the time of death and the grant of letters of administration;
(iv) the Registrar of the High Court; or
(v) such other person as may be prescribed;
“relative” (親屬), in relation to an individual, means the spouse, parent, child, brother, sister, brother-in-law, father-in-law, mother-in-law, sister-in-law, daughter-in-law, son-in-law, aunt, cousin, uncle, niece, nephew, grandfather or grandmother of the individual, and for the purposes of this definition, an adopted child shall be regarded as a child both of the natural parents and the adoptive parents and a stepchild as the child both of the natural parents and any step parents;

“total voting control” (總計表決控制權) means the aggregate of voting control;

“unqualified voting controller” (受限制表決控權人) means a voting controller who is not a qualified voting controller;

“voting control” (表決控制權) means the control of or the ability to control, whether directly or indirectly, the exercise of the right to vote attaching to 1 or more voting shares of a licensee—

(a) by the exercise of a right, where such exercise confers the ability to exercise a right to vote or to control the exercise of a right to vote;
(b) by an entitlement to exercise such a right to vote;
(c) under a duty or obligation;

(d) through a nominee;
(e) through or by means of a trust, agreement or arrangement, understanding or practice, whether or not the trust, agreement or arrangement, understanding or practice has legal or equitable force or is based on legal or equitable rights; or
(f) as a chargor of voting shares of a licensee unless the chargee of the voting shares or the nominee of the chargee has given notice in writing to the chargor under the charge of an intention to exercise the right to vote attaching to such voting shares;
“voting controller” (表決控權人) means a person who either alone or with 1 or more other persons holds voting control.

(2) Where—

(a) 2 or more voting controllers together are voting controllers in relation to the same voting share; and
(b) 1 or more of them is a disqualified person,
then, for the purposes of this Schedule, each of the voting controllers referred to in paragraph (a) shall, in relation to the voting share mentioned in that paragraph, be regarded as a disqualified person.

(3) When 2 or more voting controllers together are voting controllers in relation to the same voting share and 1 or more than 1 of those voting controllers is an unqualified voting controller, then for the purposes of this Schedule, each of those voting controllers shall, in relation to that voting share, be regarded as an unqualified voting controller.

(4) For the purposes of this Schedule, the fact that the particular voting share or shares in relation to which a person is a voting controller cannot be identified is immaterial.

(5) For the purposes of this Schedule, any reference to exercise of control—

(a) in relation to a corporation, shall be construed in accordance with subsection (6);
(b) in relation to a body other than a corporation, means the power of a person to ensure, by virtue of the rules regulating that or any other body, that the affairs of the first-mentioned body are conducted in accordance with the wishes of that person.
(6) For the purposes of subsection (5)(a), a person exercises control of a corporation if—

(a) he is a director or principal officer of the corporation;
(b) he is the beneficial owner of more than 15% of the voting shares in the corporation;
(c) he is a voting controller of more than 15% of the voting shares in the corporation; or
(d) he otherwise has the power, by virtue of any powers conferred by the memorandum or articles of association or other instrument regulating that corporation or any other corporation, to ensure that the affairs of the first-mentioned corporation are conducted in accordance with the wishes of that person,
and any reference in this Schedule to exercising control of a licensee shall be construed accordingly.

(7) Any reference in this Schedule to a person—

(a) holding or being beneficially entitled to shares in a corporation; or
(b) being a voting controller of any voting shares in a corporation,
shall be construed as a reference to his being so entitled, whether by himself or jointly with other persons, and whether directly or through 1 or more nominees.

(8) For the purposes of this Schedule, 2 corporations are members of the same group if—

(a) 1 of them is a corporation of which the other is a subsidiary; or
(b) both are subsidiaries of another corporation.
(9) In subsection (8), “subsidiary” (附屬公司), in relation to a corporation, has the same meaning which a subsidiary has in relation to a company under section 2(4) and (6) of the Companies Ordinance (Cap. 32).

2. Application

Part 3 shall not apply to a domestic pay television programme service, domestic pay television programme service licence or domestic pay television programme service licensee.

PART 2
Disqualification for Holding Domestic Free or Pay Television Programme Service Licenses and Restrictions on Voting Control

3. Disqualified person not to hold licence or exercise control

(1) A disqualified person shall not become the holder of a licence or exercise control of a licensee unless the disqualification was disclosed in the application for the licence.

(2) Unless the Chief Executive in Council, on application in the specified form by a licensee, is satisfied that the public interest so requires and approves otherwise—

(a) a person shall not become or remain the holder of a licence if he is a disqualified person; and
(b) a person shall not exercise control of a licensee if he is a disqualified person.
(3) In considering the public interest for the purposes of subsection (2), account shall be taken of, but not limited to, the following matters—

(a) the effect on competition in the relevant service market;
(b) the extent to which viewers will be offered more diversified television programme choices;
(c) the impact on the development of the broadcasting industry; and
(d) the overall benefits to the economy.
4. Disqualification of licensees

(1) Subject to subsection (2), any one of the following shall be a disqualified person in relation to a licence—

(a) a licensee in the same category of licence;
(b) a licensee in a different category of licence, including a non-domestic television programme service licence and an other television programme service licence (except that a non-domestic television programme service licensee is not a disqualified person in relation to a domestic pay television programme service licence);
(c) a person who exercises control in the licensee mentioned in paragraph (a) or (b);
(d) an associate of a person who is a disqualified person by virtue of paragraph (a), (b) or (c).
(2) A licensee mentioned in subsection (1)(a) or (b) shall not be disqualified from holding a licence by reason only of the fact that it has, under Part 4, obtained the prior approval in writing of the Chief Executive in Council to hold or acquire an interest in a company which is a disqualified person.

(3) A person shall not be a disqualified person in relation to a company which is a licensee by reason only of the fact that he is a director or a principal officer of, or holds or controls more than 15% of the voting shares in, that company.

5. Disqualification of sound broadcasting licensees

The following are disqualified persons in relation to a licence—

(a) a sound broadcasting licensee under Part IIIA of the Telecommunications Ordinance (Cap. 106);
(b) a person who exercises control over a licensee mentioned in paragraph (a); or
(c) an associate of—
(i) a licensee mentioned in paragraph (a); or
(ii) a person mentioned in paragraph (b).
6. Disqualification of advertising agencies

The following are disqualified persons in relation to a licence—

(a) an advertising agency;
(b) a person who exercises control over an advertising agency; or
(c) an associate of—
(i) an advertising agency; or
(ii) a person mentioned in paragraph (b).
7. Disqualification of local newspapers

The following are disqualified persons in relation to a licence—

(a) the proprietor of a newspaper printed or produced in Hong Kong;
(b) a person who exercises control over a proprietor mentioned in paragraph (a); or
(c) an associate of—
(i) a proprietor mentioned in paragraph (a); or
(ii) a person mentioned in paragraph (b).
8. Restriction on disqualified persons acting in association with voting controllers

(1) Where a voting controller holds or acquires voting control of the voting shares of a licensee as an associate of a disqualified person and it appears to the Broadcasting Authority that a purpose of the holding or acquisition is to avoid a restriction imposed on a disqualified person under this Part, then the Broadcasting Authority may, by notice in writing served on any voting controller whom it believes to be a party to the holding or acquisition, give directions to the voting controller which appear to the Broadcasting Authority to be necessary to—

(a) effect a cesser of the holding or acquisition; and
(b) ensure compliance with the restriction.
(2) A notice under subsection (1) shall specify—

(a) where the directions are given for the purpose of subsection (1)(a), those directions;
(b) where the directions are given for the purpose of subsection (1)(b), those directions and the restriction required to be complied with; and
(c) the period within which the directions are required to be complied with.
(3) Nothing in this section shall be construed as restricting or otherwise affecting a person’s power to transfer a voting share.

(4) Where 2 or more persons act together to hold or acquire the voting control of the voting shares of a licensee, then, for the purposes of this Part, each of those persons shall be regarded in relation to the voting shares of the licensee as being an associate of the other and of any other person acting on the directions of any of them to hold or to acquire voting control over those voting shares.

9. Licensee’s power to investigate a disqualified person

(1) Where a licensee knows or has reasonable cause to believe a person—

(a) to be a voting controller of voting shares of the licensee;
(b) to have been such a controller at any time during the relevant period; or
(c) to have assisted in or been a party to any transaction involving, in respect of any such voting share, a change of voting controller,
then the licensee may, by notice in writing served on the person, require the person—

(i) to confirm or refute that fact; and
(ii) if he confirms it, to give such further particulars as may be required under subsection (2).
(2) A notice under subsection (1) may require the person on whom it is served—

(a) to give particulars as to his status as a disqualified person or otherwise at any time during the relevant period;

(b) to give particulars which are within his knowledge or belief relating to the address and identity of any person who is a party to any holding or acquisition mentioned in section 8(1);
(c) where he has at any time during the relevant period been a voting controller, but at the time the notice is given has ceased to be so, to give particulars which are within his knowledge or belief relating to the address and identity of any person who became a voting controller immediately upon his ceasing to be a voting controller; and
(d) where he has at any time during the relevant period assisted in or been a party to any transaction involving, in respect of any voting share, a change of voting controller, to give particulars which are within his knowledge or belief relating to the address and identity of any person who became a voting controller upon the change.
(3) A notice under subsection (1) shall specify a period within which the requirements of the notice are to be complied with.

(4) Where any particulars are given to a licensee under this section, it shall, not later than 15 days beginning on the date it receives the particulars, give the Broadcasting Authority notice in writing of the particulars.

(5) In this section, “relevant period” (有關期間), in relation to a particular notice, means the period of 3 years immediately preceding the date on which the licensee serves the notice.

10. Broadcasting Authority’s power to obtain information as to disqualified persons

(1) If it appears to the Broadcasting Authority that there is reason to investigate the voting controllers of any voting shares of a licensee, it may require any person whom it has reasonable cause to believe to have, or to be able to provide or obtain, any information as to any present or past voting controllers and their names and addresses and of those persons who act or have acted on their behalf, to give that information to the Broadcasting Authority.

(2) Without prejudice to the generality of subsection (1), where the Broadcasting Authority has reasonable cause to believe a person—

(a) to be a voting controller of voting shares of the licensee;
(b) to have been such a controller at any time during the relevant period; or
(c) to have assisted in or been a party to any transaction involving, in respect of any such voting shares, a change of voting controller,
then it may, by notice in writing served on the person, require the person—

(i) to confirm or refute that fact; and
(ii) if he confirms it, to give such further particulars as may be required under subsection (3).
(3) A notice under subsection (2) may require the person on whom it is served—

(a) to give particulars as to his status as a disqualified person or otherwise at any time during the relevant period;
(b) to give particulars which are within his knowledge or belief relating to the address and identity of any person who is a party to any holding or acquisition mentioned in section 8(1);
(c) where he has at any time during the relevant period been a voting controller, but at the time the notice is served has ceased to be so, to give particulars which are within his knowledge or belief relating to the address and identity of any person who became a voting controller immediately upon his ceasing to be a voting controller; and
(d) where he has at any time during the relevant period assisted in or been a party to any transaction involving, in respect of any voting share, a change of voting controller, to give particulars which are within his knowledge or belief relating to the address and identity of any person who became a voting controller upon the change.
(4) A notice under subsection (2) shall specify a period within which the requirements of the notice are to be complied with.

(5) The Broadcasting Authority may, by notice in writing served on a licensee, direct the licensee to exercise its powers of investigation under section 9 in respect of a person named in the notice and, where the Broadcasting Authority gives such a direction—

(a) the licensee shall comply with it; and
(b) the following shall apply—
(i) the licensee shall, not later than 15 days after the investigation is concluded, give in writing to the Broadcasting Authority any information and particulars received by the licensee as a result of the investigation;
(ii) without prejudice to subparagraph (i), where the investigation is not concluded within 3 months beginning on the date the relevant notice under this subsection was served on the licensee, the licensee shall, not later than 15 days beginning on—
(A) the expiry of that 3 months period; and
(B) the expiry of every successive period of 3 months before the conclusion of the investigation,
give to the Broadcasting Authority an interim report relating to the information and particulars received by it during the period referred to in sub-subparagraph (A) or (B), as the case may be;
(iii) an investigation shall be regarded as concluded when the licensee has made all the inquiries necessary or expedient for the purpose of the investigation and any such inquiry shall be regarded as concluded when a response has been received by the licensee or the time given by it for a response has expired.
(6) In this section, “relevant period” (有關期間), in relation to a particular notice, means the period of 3 years immediately preceding the date on which the Broadcasting Authority serves the notice.

11. Additional requirements regarding form and content of licensee’s records

(1) Where a licensee serves a notice under section 9(1), or serves such notice in consequence of a direction under section 10(5), it shall keep a record in the specified form containing—

(a) the date of the notice;
(b) the name of any person on whom it is served; and
(c) the particulars received by the licensee in response to the notice.
(2) A licensee shall retain a record mentioned in subsection (1) in accordance with any direction in that behalf given by the Broadcasting Authority under section 16.

12. Power of Broadcasting Authority to impose restrictions

(1) If—

(a) a disqualified person is convicted of an offence under section 17(2) or (3); or
(b) a person is convicted of an offence under section 17(1), (4), (5) or (6),
and it appears to the Broadcasting Authority that the offence was committed in relation to any voting share of a licensee, then the Broadcasting Authority may, by notice in writing, direct that the share, which shall be specified in the notice, shall be subject to such of the restrictions mentioned in subsection (3) as are specified in the notice until the Broadcasting Authority makes a further notice under this subsection in respect of the share.

(2) If, in connection with an investigation under section 9 or 10, it appears to the Broadcasting Authority that there is difficulty in ascertaining the relevant facts regarding a person who, in the opinion of the Broadcasting Authority, is or appears to be the voting controller of any voting share of a licensee, then the Broadcasting Authority may, by notice in writing, direct that the share, which shall be specified in the notice, shall be subject to such of the restrictions mentioned in subsection (3) as are specified in the notice until the Broadcasting Authority makes a further notice under this section in respect of the share.

(3) The restrictions for the purposes of subsections (1) and (2) are that—

(a) any transfer of the voting share or, in the case of a voting share that has not been issued, any transfer of the right to be issued with it or any issue of the share is void;

(b) no voting right can be exercised in respect of the voting share;
(c) no further voting share shall be issued in right of the voting share or under any offer made to the holder of it; and
(d) except in a liquidation, no payment shall be made of any amount due from the licensee on the voting share, whether in respect of capital or otherwise.
(4) Where a voting share is subject to a restriction mentioned in subsection (3)(a), an agreement to transfer—

(a) the voting share; or
(b) in the case of a voting share which has not been issued, the right to be issued with it,
is void.

(5) Where a voting share is subject to a restriction, mentioned in subsection (3)(c) or (d), any agreement to transfer a right to be issued with any other voting share in the right of such voting share, or to receive any payment on it otherwise than on liquidation, is void.

13. Relaxation and removal of restrictions under section 12

(1) Where a voting share of a licensee is the subject of a notice under section 12(1) or (2), the licensee or any person aggrieved by the notice may apply to the Court of First Instance for an order directing that the share—

(a) shall cease to be subject to the restrictions specified in the notice; or
(b) be sold, subject to the Court of First Instance’s approval for the sale.
(2) Where the Court of First Instance makes an order under subsection (1)(b), it may also direct that the voting share shall cease to be subject to any restrictions specified in the notice concerned under section 12(1) or (2).

(3) An order under this section directing that a voting share shall cease to be subject to restrictions specified in the notice concerned under section 12(1) or (2), if it is stated to be made with a view to permitting the transfer or directing the sale of the share, may direct that any such restrictions shall continue in whole or in part, in so far as such restrictions relate to a right acquired or offer made before the transfer or sale.

14. Provision as to proceeds of sale by order of Court of First Instance

(1) Where a voting share of a licensee is sold pursuant to an order under section 13(1)(b), the proceeds of sale, less the costs of the sale, shall be paid into court for the benefit of any person who is beneficially interested in the voting share and any such person may apply to the Court of First Instance for the whole or any part of those proceeds to be paid to him.

(2) Where a person makes an application under subsection (1), the Court of First Instance may order the payment to the applicant of the whole of the proceeds of sale together with any interest thereon or, if any other person had a beneficial interest in the voting share at the time of its sale, the Court of First Instance may apportion the proceeds and interest between the applicant and such other person in proportion to their respective beneficial interests and direct that payment be made accordingly.

(3) Where the Court of First Instance makes an order under section 13(1)(b), it may further order that the costs of an applicant in relation to the application under that section be paid out of the proceeds of sale and, if it makes such an order and the licensee is such an applicant, the licensee shall be entitled to the payment of its costs out of the proceeds before any other applicant is paid any part of the proceeds.

15. Privilege relating to non-disclosure and confidentiality

(1) A person is not obliged to comply with the requirements of a notice under section 9 if he is for the time being exempted by the Financial Secretary by notice in the Gazette from the operation of section 18 of the Securities (Disclosure of Interests) Ordinance (Cap. 396).

(2) Where a corporation is required to give information under section 9 or 10, the corporation may take advantage of the benefit conferred by section 128(3) or 129(3) of the Companies Ordinance (Cap. 32), but where as a consequence of taking such advantage, any information is not given by the corporation, the fact of such omission shall be disclosed by the corporation.

(3) Subject to subsection (4), nothing in this Part shall be construed as requiring the disclosure of information by an authorized institution within the meaning of the Banking Ordinance (Cap. 155), or by a nominee of any such institution, acting as a banker or financial adviser in relation to the affairs of any of its customers.

(4) Subsection (3) shall not apply to the disclosure of the name and address of a voting controller by an authorized institution, or the nominee of such an institution, mentioned in that subsection.

(5) Subject to subsection (6), any information designated as confidential which is received by a licensee or the Broadcasting Authority under this Part shall be treated as confidential.

(6) Subsection (5) shall not be construed as prohibiting the disclosure of information—

(a) with a view to the institution of or otherwise for the purpose of any criminal proceedings or any investigation in that connection, whether under this Ordinance or otherwise, in Hong Kong;
(b) by the licensee—
(i) to the Broadcasting Authority;
(ii) to the Secretary for Information Technology and Broadcasting; or
(iii) in connection with civil proceedings to which the licensee is a party.
16. Directions of Broadcasting Authority

(1) The Broadcasting Authority may issue directions for the purposes of this Part.

(2) Without prejudice to the generality of subsection (1), the Broadcasting Authority may under that subsection—

(a) specify the manner in which any document to be used for the purposes of this Part is to be distributed by a licensee, completed and executed by or on behalf of a person to whom the document is distributed and returned to the licensee, and assessed, processed, recorded or reported on by the licensee to the Broadcasting Authority;
(b) specify the manner in which any document to be used for the purposes of this Part is to be distributed by the licensee and returned to the licensee by or on behalf of a person to whom the document is distributed;
(c) where a period is not specified for the doing of anything in respect of which the Broadcasting Authority may issue directions under this Part, specify a period; and
(d) impose any duty or obligation on the licensee for the purpose of securing, or assisting the securing of, compliance by the licensee with this Part.
17. Offences

(1) A person who, in purported compliance with any duty or requirement to give information under this Part, gives, orally or in writing, information which is false in any material particular and which he knows or ought reasonably to have known was false in a material particular, commits an offence.

(2) A voting controller who fails to comply with the requirements of a notice served on the controller under section 8(1) within the period specified in the notice for complying with it commits an offence.

(3) A person who fails to comply with the requirements of a notice served on him under section 9(1) within the period specified in the notice for complying with it commits an offence.

(4) A person who fails to comply with the requirements of a notice served on him under section 10(2) within the period specified in the notice for complying with it commits an offence.

(5) A person who votes on a poll at a general meeting of a licensee, whether in person or by proxy, in respect of a voting share which, to his knowledge, is for the time being subject to a restriction under section 12(3)(b), or appoints a proxy to vote in respect of the share, commits an offence.

(6) A person who being the holder of a voting share which, to his knowledge, is for the time being subject to a restriction under section 12(3) or having a right to be issued with another voting share in the right of the first-mentioned share, or to receive any payment in respect of the firstmentioned share otherwise than in a liquidation, enters into an agreement which is void under section 12(4) or (5) commits an offence.

(7) A person who commits an offence under this section is liable on conviction to a fine of $1,000,000 and to imprisonment for 2 years.

18. Prosecution of offences and limitation on institution of proceedings

(1) Without affecting the powers of the Secretary for Justice in relation to the prosecution of criminal offences, prosecution for an offence under this Part may be instituted by the Broadcasting Authority.

(2) Notwithstanding section 26 of the Magistrates Ordinance (Cap. 227), any information or complaint relating to an offence under this Part may be tried if it is laid or made, as the case may be, at any time within 3 years beginning on the date of the commission of the offence or within 12 months beginning on the first discovery of the offence by the prosecutor, whichever period expires first.

PART 3
Restrictions on Voting Control Held by Unqualified Voting Controllers (Not Applicable in Relation to Domestic Pay Television Programme Service License)

19. Restrictions on percentage of voting control of unqualified voting controllers

(1) Subject to subsection (2), notwithstanding anything contained in the memorandum or articles of association of a licensee or any provision of any law apart from this section, where any question or matter is to be determined by a poll at any general meeting of the licensee, the following shall apply—

(a) no vote shall be cast on the poll, whether in person or by proxy, other than by or by proxy on behalf of any person who, at the time of the general meeting, is a registered shareholder of voting shares of the licensee in respect of which a document mentioned in section 22(1)(b) has, in accordance with any direction in that behalf issued by the Broadcasting Authority under section 30, been completed and returned to the licensee;
(b) where the total voting control exercised by unqualified voting controllers would otherwise exceed, in the aggregate, 49% of the total voting control exercised on the poll by both qualified and unqualified voting controllers, the votes cast on the poll by unqualified voting controllers shall, for the purpose of determining the question or matter, be reduced by multiplying those votes by the percentage determined by the formula specified in paragraph (c);
(c) the formula for the purposes of paragraph (b) is—
1
B×(49×A)
51×100
where A=the percentage of the total votes cast on the poll, the voting controllers of which are qualified voting controllers;
B=the percentage of the total votes cast on the poll, the voting controllers of which are unqualified voting controllers.
(2) Notwithstanding anything contained in the memorandum or articles of association of the licensee, this section shall not apply—

(a) where the question or matter which is to be determined by a poll at any general meeting of the licensee is the creation of different classes of shares in the licensee; or
(b) where the share capital of the licensee is for the time being divided into different classes of shares, to the variation, including abrogation, of any special rights attaching to any such classes of shares.
(3) The Broadcasting Authority may at any time before, at or during a general meeting of a licensee, direct the licensee orally or by notice in writing to conduct a poll upon any resolution and, where such a direction is given, the licensee shall comply with it.

20. 2% to 10% control limits by unqualified voting controller subject to approval of Broadcasting Authority

(1) An unqualified voting controller shall not, without the prior approval in writing of the Broadcasting Authority—

(a) hold;
(b) acquire; or
(c) exercise or cause or permit to be exercised,
2% or more but less than 6%, or 6% or more but not more than 10%, or more than 10%, in the aggregate, of the total voting control of a licensee.

(2) If an unqualified voting controller holds more than 10%, in the aggregate, of the total voting control of a licensee in contravention of subsection (1)(a), notwithstanding anything contained in the memorandum or articles of association of the licensee or any provision of the laws of Hong Kong apart from this section, he shall not exercise or cause or permit to be exercised, in relation to any question or matter arising at a general meeting of the licensee, voting rights exceeding, in the aggregate, 10% of the total voting control of the licensee.

(3) The Broadcasting Authority may, in respect of any unqualified voting controller who is in contravention of subsection (1), by notice in writing served on him, give such directions as appear to it to be required to effect a cesser of the contravention.

(4) A notice under subsection (3) shall specify—

(a) the directions given under subsection (3); and
(b) a period within which the directions are to be complied with.
(5) Nothing in this section shall be construed as restricting or otherwise affecting the power of a person to transfer a voting share.

21. Restriction on unqualified voting controllers acting in association with other voting controllers

(1) Where a person being—

(a) a qualified voting controller; or
(b) an unqualified voting controller,
holds or acquires voting control of the voting shares of a licensee as an associate of an unqualified voting controller and it appears to the Broadcasting Authority that a purpose of the holding or acquisition is to avoid a restriction imposed on an unqualified voting controller under this Part, then the Broadcasting Authority may, by notice in writing served on any voting controller whom it believes to be a party to the holding or acquisition, give directions to the voting controller which appear to the Broadcasting Authority to be necessary to—

(i) effect a cesser of the holding or acquisition; and
(ii) ensure compliance with the restriction.
(2) A notice under subsection (1) shall specify—

(a) where the directions are given for the purpose of subsection (1)(i), those directions;
(b) where the directions are given for the purpose of subsection (1)(ii), those directions and the restriction required to be complied with; and
(c) the period within which the directions are required to be complied with.
(3) Nothing in this section shall be construed as restricting or otherwise affecting a person’s power to transfer a voting share.

(4) Where 2 or more persons act together to hold or acquire the voting control of the voting shares of a licensee, then, for the purposes of this Part, each of those persons shall be regarded in relation to the voting shares of the licensee as being an associate of the other and of any other person acting on the directions of any of them to hold or to acquire voting control over those voting shares.

22. Duty of licensee to notify Broadcasting Authority in relation to general meetings, etc.

(1) For the purposes of this Part, a licensee shall, in relation to any general meeting and in accordance with any relevant directions given by the Broadcasting Authority under section 30—

(a) give the Broadcasting Authority notice in writing of any general meeting and a copy of all the documents relevant to the general meeting sent by it to its registered shareholders;
(b) distribute to each person whose name appeared in the licensee’s register immediately before the distribution, a document relating to the voting control attaching to the voting shares registered in that person’s name, to be completed and returned to the licensee;
(c) on receiving a request in writing from a registered shareholder, in that behalf, by reference to the document mentioned in paragraph (b), notify in writing the registered shareholder of the number and identity of the voting shares of the licensee in respect of which that registered shareholder is a person described in section 19(1)(a);
(d) by reference to the document mentioned in paragraph (b), notify in writing the Broadcasting Authority of the total number of voting shares held by any person mentioned in section 19(1)(a) and controlled by unqualified voting controllers and by qualified voting controllers and the proportion, expressed as a percentage, that the former bears to the whole;
(e) notify in writing the Broadcasting Authority of the name, address, and such further particulars as the Broadcasting Authority may require of all unqualified voting controllers who, by reference to the document mentioned in paragraph (b), hold 2% or more of the total voting control of the licensee; and
(f) notify in writing the Broadcasting Authority as to the details of the conduct of any poll held at the general meeting, including particulars of any calculation of voting control under section 19(1)(b), and such further particulars as the Broadcasting Authority may require.
(2) Where a person to whom a document is distributed under subsection (1)(b) is unable, from his own knowledge or belief, to complete the document or has no authority to do so, he shall, where he knows the name and address of any other person whom he has reason to believe may be able to complete or to assist in the completion of the document or who has authority to do so, send the document to that person.

23. Licensee’s power to investigate voting controllers

(1) Where a licensee knows or has reasonable cause to believe a person—

(a) to be a voting controller of voting shares of the licensee;
(b) to have been such a controller at any time during the relevant period; or
(c) to have assisted in or been a party to any transaction involving, in respect of any such voting shares, a change of voting controller,
then the licensee may, by notice in writing served on the person, require the person—

(i) to confirm or refute that fact; and
(ii) if he confirms it, to give such further particulars as may be required under subsection (2).
(2) A notice under subsection (1) may require the person on whom it is served—

(a) to give particulars as to his status as an unqualified voting controller or otherwise at any time during the relevant period;
(b) to give particulars which are within his knowledge or belief relating to the address and identity of any person who is a party to any holding or acquisition mentioned in section 21(1);
(c) where he has at any time during the relevant period been a voting controller, but at the time the notice is served has ceased to be so, to give particulars which are within his knowledge or belief relating to the address and identity of any person who became a voting controller immediately upon his ceasing to be a voting controller; and
(d) where he has at any time during the relevant period assisted in or been a party to any transaction involving, in respect of any voting share, a change of voting controller, to give particulars which are within his knowledge or belief relating to the address and identity of any person who became a voting controller upon the change.
(3) A notice under subsection (1) shall specify a period within which the requirements of the notice are to be complied with.

(4) Where any particulars are given to a licensee under this section, it shall, not later than 15 days beginning on the date it receives the particulars, give the Broadcasting Authority notice in writing of the particulars.

(5) In this section, “relevant period” (有關期間), in relation to a particular notice, means the period of 3 years immediately preceding the date on which the licensee serves the notice.

24. Broadcasting Authority’s power to obtain information as to voting controllers

(1) If it appears to the Broadcasting Authority that there is reason to investigate the voting controllers of any voting shares of a licensee, it may require any person whom it has reasonable cause to believe to have, or to be able to provide or obtain, any information as to any present or past voting controllers and their names and addresses and of those persons who act or have acted on their behalf, to give that information to the Broadcasting Authority.

(2) Without prejudice to the generality of subsection (1), where the Broadcasting Authority has reasonable cause to believe a person—

(a) to be a voting controller of voting shares of the licensee;
(b) to have been such a controller at any time during the relevant period; or
(c) to have assisted in or been a party to any transaction involving, in respect of any such voting shares, a change of voting controller,
then it may, by notice in writing served on the person, require the person—

(i) to confirm or refute that fact; and
(ii) if he confirms it, to give such further particulars as may be required under subsection (3).
(3) A notice under subsection (2) may require the person on whom it is served—

(a) to give particulars as to his status as an unqualified voting controller or otherwise at any time during the relevant period;
(b) to give particulars which are within his knowledge or belief relating to the address and identity of any person who is a party to any holding or acquisition mentioned in section 21(1);
(c) where he has at any time during the relevant period been a voting controller, but at the time the notice is served has ceased to be so, to give particulars which are within his knowledge or belief relating to the address and identity of any person who became a voting controller immediately upon his ceasing to be a voting controller; and
(d) where he has at any time during the relevant period assisted in or been a party to any transaction involving, in respect of any voting share, a change of voting controller, to give particulars which are within his knowledge or belief relating to the address and identity of any person who became a voting controller upon the change.
(4) A notice under subsection (2) shall specify a period within which the requirements of the notice are to be complied with.

(5) The Broadcasting Authority may, by notice in writing served on a licensee, direct the licensee to exercise its powers of investigation under section 23 in respect of a person named in the notice and, where the Broadcasting Authority gives such a direction—

(a) the licensee shall comply with it; and
(b) the following shall apply—
(i) the licensee shall, not later than 15 days after the investigation is concluded, give in writing to the Broadcasting Authority any information and particulars received by the licensee as a result of the investigation;
(ii) without prejudice to subparagraph (i), where the investigation is not concluded within 3 months beginning on the date the relevant notice under this subsection was served on the licensee, the licensee shall, not later than 15 days beginning on—
(A) the expiry of that 3 months period; and
(B) the expiry of every successive period of 3 months before the conclusion of the investigation,
give to the Broadcasting Authority an interim report relating to the information and particulars received by it during the period referred to in sub-subparagraph (A) or (B), as the case may be;
(iii) an investigation shall be regarded as concluded when the licensee has made all the inquiries necessary or expedient for the purpose of the investigation and any such inquiry shall be regarded as concluded when a response has been received by the licensee or the time given by the licensee for a response has expired.
(6) In this section, “relevant period” (有關期間), in relation to a particular notice, means the period of 3 years immediately preceding the date on which the Broadcasting Authority serves the notice.

25. Additional requirements regarding form and content of licensee’s records

(1) Where a licensee serves a notice under section 23(1), or serves such notice in consequence of a direction under section 24(5), it shall keep a record in the specified form containing—

(a) the date of the notice;
(b) the name of any person on whom it is served; and
(c) the particulars received by the licensee in response to the notice.
(2) A licensee shall retain a record mentioned in subsection (1) in accordance with any direction in that behalf given by the Broadcasting Authority under section 30.

26. Power of Broadcasting Authority to impose restrictions

(1) If—

(a) an unqualified voting controller is convicted of an offence under section 31(2) or (3); or
(b) a person is convicted of an offence under section 31(1), (5), (6), (7) or (8),
and it appears to the Broadcasting Authority that the offence was committed in relation to any voting share of a licensee, then the Broadcasting Authority may, by notice in writing, direct that the share, which shall be specified in the notice, shall be subject to such of the restrictions mentioned in subsection (3) as are specified in the notice until the Broadcasting Authority makes a further notice under this subsection in respect of the share.

(2) If, in connection with an investigation under section 23 or 24, it appears to the Broadcasting Authority that there is difficulty in ascertaining the relevant facts regarding a person who, in the opinion of the Broadcasting Authority, is or appears to be the voting controller of any voting share of a licensee, then the Broadcasting Authority may by notice in writing direct that the share, which shall be specified in the notice, shall be subject to such of the restrictions mentioned in subsection (3), as are specified in the notice until the Broadcasting Authority makes a further notice under this subsection in respect of the share.

(3) The restrictions for the purposes of subsections (1) and (2) are that—

(a) any transfer of the voting share or, in the case of a voting share that has not been issued, any transfer of the right to be issued with it or any issue of the share is void;
(b) no voting right can be exercised in respect of the voting share;
(c) no further voting share shall be issued in right of the voting share or under any offer made to the holder of it; and
(d) except in a liquidation, no payment shall be made of any amount due from the licensee on the voting share, whether in respect of capital or otherwise.
(4) Where a voting share is subject to a restriction mentioned in subsection (3)(a), an agreement to transfer—

(a) the voting share; or
(b) in the case of a share which has not been issued, the right to be issued with it,
is void.

(5) Where a voting share is subject to a restriction mentioned in subsection (3)(c) or (d), any agreement to transfer a right to be issued with any other voting share in the right of such voting share, or to receive any payment on it otherwise than on liquidation, is void.

27. Relaxation and removal of restriction under section 26

(1) Where a voting share of a licensee is the subject of a notice under section 26(1) or (2), the licensee or any person aggrieved by the notice may apply to the Court of First Instance for an order directing that the share—

(a) shall cease to be subject to the restrictions specified in the notice; or
(b) be sold, subject to the Court of First Instance’s approval for the sale.
(2) Where the Court of First Instance makes an order under subsection (1)(b), it may also direct that the voting share shall cease to be subject to any restrictions specified in the notice concerned under section 26(1) or (2).

(3) An order under this section directing that a voting share shall cease to be subject to restrictions specified in the notice concerned under section 26(1) or (2), if it is stated to be made with a view to permitting the transfer or directing the sale of the share, may direct that any such restrictions shall continue in whole or in part, in so far as such restrictions relate to a right acquired or offer made before the transfer or sale.

28. Provision as to proceeds of sale by order of Court of First Instance

(1) Where a voting share of a licensee is sold pursuant to an order under section 27(1)(b), the proceeds of sale, less the costs of the sale, shall be paid into court for the benefit of any person who is beneficially interested in the voting share and any such person may apply to the Court of First Instance for the whole or any part of those proceeds to be paid to him.

(2) Where a person makes an application under subsection (1), the Court of First Instance may order the payment to the applicant of the whole of the proceeds of sale together with any interest thereon or, if any other person had a beneficial interest in the voting share at the time of its sale, the Court of First Instance may apportion the proceeds and interest between the applicant and such other person in proportion to their respective beneficial interests and direct that payment be made accordingly.

(3) Where the Court of First Instance makes an order under section 27(1)(b), it may further order that the costs of an applicant in relation to the application under that section be paid out of the proceeds of sale and, if it makes such an order and the licensee is such an applicant, the licensee shall be entitled to the payment of its costs out of the proceeds before any other applicant is paid any part of the proceeds.

29. Privilege relating to non-disclosure and confidentiality

(1) A person is not obliged to comply with the requirements of a notice under section 23 if he is for the time being exempted by the Financial Secretary by notice in the Gazette from the operation of section 18 of the Securities (Disclosure of Interests) Ordinance (Cap. 396).

(2) Where a corporation is required to give information under section 23 or 24, the corporation may take advantage of the benefit conferred by section 128(3) or 129(3) of the Companies Ordinance (Cap. 32), but where as a consequence of taking such advantage, any information is not given, the fact of such omission shall be disclosed by the corporation.

(3) Subject to subsection (4), nothing in this Part shall be construed as requiring the disclosure of information by an authorized institution within the meaning of the Banking Ordinance (Cap. 155), or by a nominee of any such institution, acting as a banker or financial adviser in relation to the affairs of any of its customers.

(4) Subsection (3) shall not apply to the disclosure of the name and address of a voting controller by an authorized institution, or the nominee of such an institution, mentioned in that subsection.

(5) Subject to subsection (6), any information which is furnished by a person in confidence under this Part shall be treated as confidential.

(6) Subsection (5) shall not be construed as prohibiting the disclosure of information—

(a) with a view to the institution of or otherwise for the purpose of any criminal proceedings or any investigation in that connection, whether under this Ordinance or otherwise, in Hong Kong;
(b) by the licensee—
(i) to the Broadcasting Authority;
(ii) to the Secretary for Information Technology and Broadcasting; or
(iii) in connection with civil proceedings to which the licensee is a party.
30. Directions of Broadcasting Authority

(1) The Broadcasting Authority may issue directions for the purposes of this Part.

(2) Without prejudice to the generality of subsection (1), the Broadcasting Authority may under that subsection—

(a) specify the manner in which any document to be used for the purposes of this Part is to be distributed by a licensee, completed and executed by or on behalf of a person to whom the document is distributed and returned to the licensee, and assessed, processed, recorded or reported on by the licensee to the Broadcasting Authority;
(b) specify the manner in which any document to be used for the purposes of this Part is to be distributed by the licensee and returned to the licensee by or on behalf of a person to whom the document is distributed;
(c) where a period is not specified for the doing of anything in respect of which the Broadcasting Authority may issue directions under this Part, specify a period; and
(d) impose any duty or obligation on the licensee for the purpose of securing, or assisting the securing of, compliance by the licensee with this Part.
31. Offences

(1) A person who, in purported compliance with any duty or requirement to give information under this Part, gives, orally or in writing, information which is false in any material particular and which he knows or ought reasonably to have known was false in a material particular, commits an offence.

(2) An unqualified voting controller who fails to comply with the requirements of a notice served on the controller under section 20 within the period specified in the notice for complying with it commits an offence.

(3) A voting controller who fails to comply with the requirements of a notice served on the controller under section 21(1) within the period specified in the notice for complying with it commits an offence.

(4) A person who, without reasonable excuse, fails to comply with section 22(2) commits an offence.

(5) A person who fails to comply with the requirements of a notice served on him under section 23 within the period specified in the notice for complying with it commits an offence.

(6) A person who fails to comply with the requirements of a notice served on him under section 24 within the period specified in the notice for complying with it commits an offence.

(7) A person who votes on a poll at a general meeting of a licensee, whether in person or by proxy, in respect of a voting share which, to his knowledge, is for the time being subject to a restriction under section 26(3)(b), or appoints a proxy to vote in respect of the share, commits an offence.

(8) A person who being the holder of a voting share which, to his knowledge, is for the time being subject to a restriction under section 26(3) or having a right to be issued with another voting share in the right of the first-mentioned share, or to receive any payment in respect of the first-mentioned share otherwise than in a liquidation, enters into an agreement which is void under section 26(4) or (5) commits an offence.

(9) A person who commits an offence under this section is liable on conviction to a fine of $1,000,000 and to imprisonment for 2 years.

32. Prosecution of offences and limitation on institution of proceedings

(1) Without affecting the powers of the Secretary for Justice in relation to the prosecution of criminal offences, prosecution for an offence under this Part may be instituted by the Broadcasting Authority.

(2) Notwithstanding section 26 of the Magistrates Ordinance (Cap. 227), any information or complaint relating to an offence under this Part may be tried if it is laid or made, as the case may be, at any time within 3 years beginning on the date of the commission of the offence or within 12 months beginning on the first discovery of the offence by the prosecutor, whichever period expires first.

PART 4
Restriction on Domestic Free of Pay Television Programme Service Licensees Exercising Control on Disqualified Persons

33. Restrictions on licensees exercising control on disqualified person without Chief Executive in Council’s approval (1) A licensee shall not exercise control on a disqualified person—

(a) unless the Chief Executive in Council, on application in the specified form by a licensee, is satisfied that the public interest so requires and approves otherwise; and
(b) except in accordance with such conditions as are specified in the approval.
(2) In considering public interest for the purposes of subsection (1), account shall be taken of, but not limited to, the following matters—

(a) the effect on competition in the relevant service market;
(b) the extent to which viewers will be offered more diversified television programme choices;
(c) the impact on the development of the broadcasting industry; and
(d) the overall benefits to the economy.
⁠⁠

SCHEDULE 2

[ss. 2 & 43]

Items Which are not to be Regarded as Newspapers for the Purpose of Paragraph (c) of Definition of “Newspaper” in Section 2(1)

Item Description
1. Academic journals.
2. Almanacs.
3. Cartoons and comic strips.
4. Collections of photographic images (with or without captions).
5. Commercial advertisements and commercial advertising circulars and brochures.
6. Commercial circulars.
7. Company and partnership reports and company prospectuses.
8. Consumer information and reports.
9. Election pamphlets and posters.
10. Financial, economic and statistical reports.
11. Information sheets and newsletters relating to clubs, educational institutions, professional associations, societies, trade unions and other organizations.
12. Maps, charts and tables.
13. Price lists.
14. Public speeches and statements.
15. Racing tips, racing form reports and other related materials.
16. Religious materials.
17. Sales catalogues.
18. Sheet music.
19. Trade catalogues and journals.
20. Travel brochures.
21. Technical or technology journals and catalogues.
22. Television programme guides.
⁠⁠

SCHEDULE 3

[ss. 2 & 43]

Services not to be Regarded as Television Programme Services

1. A service consisting of the conveyance, without variation or alteration of contents, of a licensed service—

(a) by means of a telecommunications network; and
(b) under an interconnection agreement (within the meaning of the Telecommunications Ordinance (Cap. 106)) between the licensee of the licensed service and the owner or operator of the telecommunications network.
2. A service—

(a) consisting of the conveyance of a programme service exclusively between points specified by the person transmitting the programme service and the person receiving it; and
(b) which is not made available to any other person.
3. The provision of a transactional service, that is, a service which affords facilities to conduct from the place of reception of the service, using the same means of telecommunications by which the service is provided, transactions for the receipt of goods or services, or both, other than a transaction which consists of ordering and receiving a service that includes television programmes by the same means of telecommunications.

4. Any service (such as the services commonly known as video conferencing and video telephony) in which material is transmitted by means of telecommunications, and an essential feature of the service is that while the material is being transmitted there will or can be sent from the place of reception of the service, by the same means of telecommunications, material (other than signals sent for the operation or control of the service) for reception by the person providing the service or other persons receiving it.

5. Any service provided on the service commonly known as the INTERNET.

6. A service consisting of television programmes—

(a) which do not primarily target Hong Kong;
(b) uplinked from a place outside Hong Kong;
(c) transmitted from a satellite; and
(d) intended for general reception in that—
(i) the programmes are not encrypted or, where encrypted—
(A) the originator of the programmes has published a notice in a Chinese language newspaper circulating generally in Hong Kong, and in an English language newspaper circulating generally in Hong Kong, stating that the programmes are intended for general reception and that no fee will be charged for the right to view or listen to any such programmes in Hong Kong; and
(B) the Broadcasting Authority or the Telecommunications Authority states in writing that it or he is satisfied that the programmes are intended for general reception and that no fee will be charged for the right to view or listen to any such programmes in Hong Kong; and
(ii) no fee is in fact charged for the right to view or listen to any such programme in Hong Kong.
7. A service consisting of a closed circuit television system comprising a television transmitter unit, with or without an associated audio system, connected to reception units by wire or other material substance which does not cross a public street or unleased Government land, where the service is operated solely for internal information or security information purposes solely for users of the reception units.

⁠⁠⁠⁠

SCHEDULE 4

[ss. 2, 8 & 43 & Schs.
5, 6, 7 & 8]

Domestic free television programme service supplementary provisions

PART 1
General

1. Interpretation

licence” (牌照) means a domestic free television programme service licence;

“licensee” (持牌人) means the holder of a licence;

“service” (服務) means a domestic free television programme service the subject of a licence.

2. Application for licence

A licence shall not be granted to or held by a company which is the subsidiary of a corporation.

3. Television programmes supplied by Government

(1) Where a requirement is made on a licensee pursuant to a condition to include in its service, without charge, a television programme supplied by the Government or the Broadcasting Authority—

(a) the requirement may include the inclusion in its service, of television programmes supplied by the Government or the Broadcasting Authority, during the 3 hours commencing at 7 p.m., on any day from Monday to Friday inclusive;
(b) unless the licensee consents otherwise, the number of such hours of television programmes supplied by the Government or the Broadcasting Authority for inclusion in its service during the hours mentioned in paragraph (a) shall not be required to exceed, in any one day, 30 minutes in duration, in aggregate or otherwise;
(c) without prejudice to the operation of paragraphs (a) and (b), if the licensee’s service is not provided on demand, the duration of the television programmes supplied by the Government or the Broadcasting Authority shall not be required to exceed, in aggregate or otherwise, any of the following—
(i) 2 –12 hours in any period of 24 hours commencing at 6 a.m.;
(ii) 2 –12 hours in the 15 hours between the hours of 7 p.m. and 10 p.m. in any period from Monday to Friday inclusive in any one week;
(iii) in the case of a service in the Chinese language, 12 hours in any week; and
(iv) in the case of a service in the English language, 6 hours in any week.
(2) Nothing in subsection (1) shall be construed to prejudice the operation of section 19 of this Ordinance.

4. Duration of licence

(1) The Chief Executive in Council may by notice in the Gazette—

(a) specify the period of validity of a licence;
(b) order a licence to be reviewed within such period as is specified in the notice.
(2) A licence shall—

(a) subject to paragraph (b), be valid for such period as is specified in a notice under subsection (1)(a) applicable to the licence, and shall, unless otherwise provided under this Ordinance, cease to have effect on the expiration of that period; and
(b) be subject to review—
(i) within that period on such dates as are specified in the licence for the purpose; or
(ii) within such period as is specified in a notice under subsection (1)(b) applicable to the licence.
5. Disqualified persons not to increase control of licensee

(1) Subject to section 6, no disqualified person who exercises control of a licensee shall increase such control—

(a) by increasing the percentage of voting shares of the licensee which he holds as the beneficial owner; or
(b) as the result of any change of office held by him in the licensee.
(2) A disqualified person who contravenes subsection (1) commits an offence and is liable on conviction to a fine of $1,000,000 and to imprisonment for 2 years.

6. Circumstances in which disqualified person may increase control of licensee

On the application of a licensee, the Chief Executive in Council may, if he is satisfied that the public interest so requires, approve—

(a) an increase in the control exercised by a disqualified person in the licensee; or
(b) the introduction of a disqualified person to exercise control of the licensee.
7. Licensee to include certain statement in prospectus

A licensee shall ensure that a clear statement of the effect of section 8 of this Ordinance, of Schedule 1 and of sections 5 and 6 is made in any prospectus, within the meaning of the Companies Ordinance (Cap. 32), issued at any time in respect of the licensee.

PART 1
Effect of Non-Renewal or Revocation of License

8. Notice of non-renewal or revocation of licence

(1) Where the Chief Executive in Council decides under—

(a) section 11(5) of this Ordinance not to extend or renew a licence, he shall cause notice in writing of the decision to be served on the licensee at least 12 months before the expiry of the validity of the licence under section 4(2)(a); or
(b) section 32 of this Ordinance to revoke a licence, he shall cause notice in writing of the decision to be served on the licensee as soon as is practicable after the decision to revoke the licence.
(2) Where it is necessary for the purpose of complying with the requirement as to length of notice in subsection (1)(a), the Chief Executive in Council may extend the term of a licence (but no such extension shall continue in force any exclusive right to provide the licensed service).

9. Direction to Financial Secretary to purchase land and property belonging, etc. to licensee, etc.

(1) Where a notice is served under section 8(1)(a) or (b) in respect of a licence, or notice of a decision to revoke a licence is served under section 32(4) of this Ordinance, the Chief Executive in Council may direct The Financial Secretary Incorporated to purchase any property (including land) belonging to and used or kept by the licensee—

(a) for the purpose of the licence; and
(b) during the period of validity of the licence.
(2) Where a notice is served under section 32(4) of this Ordinance or section 8, then, not later than 12 months beginning on the date the notice is served, The Financial Secretary Incorporated shall do the following—

(a) where the property is land, purchase the entirety of the land or acquire a lease or a licence over the land for a period not exceeding 2 years;
(b) in the case of any other property, purchase the entirety of the property or acquire a licence to use the property for a period not exceeding 2 years.
(3) The consideration for the purchase of property under subsection (2) shall be an amount equal to the open market value of the property at the date of the decision not to extend or renew, or to revoke, as the case may be, the licence concerned as between a willing buyer and a willing seller but without regard to—

(a) loss of profit;
(b) goodwill;
(c) the right of pre-emption;
(d) the cost of related capital; and
(e) all the property being placed on the market at the same time.
(4) In default of an agreement between The Financial Secretary Incorporated and a licensee as regards the consideration mentioned in subsection (3), the consideration shall be determined by arbitration under the Arbitration Ordinance (Cap. 341) and, for that purpose, The Financial Secretary Incorporated and the licensee shall be regarded as having made an arbitration agreement within the meaning of that Ordinance whose provisions shall be deemed to include a provision that that consideration shall, in the absence of agreement, be determined by a single arbitrator.

(5) Where any land is purchased under this section, the licensee concerned shall execute an assignment in favour of The Financial Secretary Incorporated and The Financial Secretary Incorporated shall register the assignment in the Land Registry within 30 days of the execution of the assignment.

(6) Any property, other than land, purchased under this section shall vest in The Financial Secretary Incorporated—

(a) in the case of a decision not to extend or renew the licence concerned, upon the expiry of the licence after notice is served under section 8;
(b) in the case of a decision to revoke the licence concerned under section 32 of this Ordinance, when the revocation takes effect or when an offer for the purchase is made by The Financial Secretary Incorporated, whichever is the later, and upon such vesting all the rights of the licensee in that property shall cease and determine.
(7) Nothing in this section shall be construed as conferring on a licensee any right to require The Financial Secretary Incorporated to purchase any property owned by the licensee.

(8) Where land is purchased under this section, The Financial Secretary Incorporated shall, within 30 days beginning on the date the land is purchased, register in the Land Registry by memorial a declaration that the land has been so purchased.

(9) For the purposes of this section, “licensee” (持牌人) includes any subsidiary of the licensee.

PART 3
Television Programmes

10. Minimum duration of television programme service

The duration of each language television programme service provided under a deemed licence, within the meaning of Schedule 8 to this Ordinance, falling within section 2(1) of that Schedule shall be not less than 5 hours for each day.

11. Advertising

(1) Subject to subsection (2), the aggregate advertising time of a television programme service shall not exceed 10 minutes per clock hour between the period from 5 p.m. to 11 p.m. each day and at other times the aggregate advertising time shall not exceed 18% of the total time the service is provided in that period.

(2) Where the Broadcasting Authority is satisfied that compliance with subsection (1) would adversely affect, or would have adversely affected, the standards of presentation of a television programme, or of television programmes belonging to a class of television programmes, of a television programme service, it may, by notice in writing served on the licensee concerned, exempt that television programme, or those television programmes, as the case may be, from compliance with that subsection in the manner specified in the notice.

12. Certain advertisements prohibited

A licensee shall not include in its service any advertisement of a religious or political nature or concerned with any industrial dispute.

PART 4
Fees and Charges

13. Annual payment of fees

Subject to section 5 of Schedule 8 to this Ordinance, a licensee shall pay annually to the Director of Accounting Services a prescribed licence fee and such other fees as may be prescribed.

14. Procedural provisions for recovery of licence fees, etc.

(1) A licence fee or other fee or charge declared in writing by the Financial Secretary to be owing to the Government shall be recoverable as a civil debt.

(2) A declaration in writing purporting to be made under subsection (1) shall be prima facie evidence of the debt specified in the declaration.

(3) A licence fee, and other fees and charges, owing by a licensee to the Government shall constitute a first charge on the property belonging to the licensee.

⁠⁠⁠

SCHEDULE 5

[ss. 2, 8 & 43]

Domestic Pay Television Programme Service Supplementary Provisions

1. Application of Schedule 4

The provisions of Schedule 4, except sections 2, 3, 10 and 11 of that Schedule, shall apply to and in relation to a domestic pay television programme service licensee and its licensed service as they apply to and in relation to a domestic free television programme service licensee and its licensed service.

⁠⁠⁠

SCHEDULE 6

[ss. 2, 8 & 43]

Non-Domestic Pay Television Programme Service Supplementary Provisions

1. Application of Schedule 4

The provisions of section 12, and of Part 4, of Schedule 4 shall apply to and in relation to a non-domestic television programme service and its licensed service as it applies to and in relation to a domestic free television programme service licensee and its licensed service.

⁠⁠⁠

SCHEDULE 7

[ss. 2, 8 & 43]

Other Licensable Television Programme Service Supplementary Provisions

1. Restriction on exercising control of other licensees

An other licensable television programme service licensee, the persons exercising control of the licensee, and the associates of the licensee and those persons exercising control of the licensee, shall not hold such number of other licensable television programme service licences, or exercise control of other licensable television programme service licensees, the combined services of which are intended or available for reception by an audience of more than 200 000 specified premises.

2. Application of Schedule 4

The provisions of sections 12, 13 and 14 of Schedule 4 shall apply to and in relation to an other licensable television programme service licensee and its licensed service as they apply to and in relation to a domestic free television programme service licensee and its licensed service.

⁠⁠⁠⁠

SCHEDULE 8

[ss. 43 & 44 & Sch. 4]

Transitional and Saving Provisions

1. Interpretation

In this Schedule, unless the context otherwise requires—

“commercial television broadcasting licence” (商營電視廣播牌照) means a commercial television broadcasting licence within the meaning of section 2(1) of the repealed Ordinance and which was in force immediately before the relevant day or which was to come into force on or after that day;

“deemed licence” (當作批給的牌照) means a licence deemed under section 2(1), (2), (3), (4) or (5) to be—

(a) a licence granted under this Ordinance and a licence granted under the Telecommunications Ordinance (Cap. 106); or
(b) a licence granted under this Ordinance;
“hotel television service licence” (酒店電視服務牌照) means a hotel television service licence granted under the Telecommunications Ordinance (Cap. 106) and which was in force immediately before the relevant day or which was to come into force on or after that day;

“programme service licence” (節目服務牌照) means a programme service licence within the meaning of section 2(1) of the repealed Ordinance and which was in force immediately before the relevant day or which was to come into force on or after that day;

“relevant day” (有關日期) means the day on which section 44(1) of this Ordinance commences;

“repealed Ordinance” (已廢除條例) means the Television Ordinance (Cap. 52) repealed under section 44(1) of this Ordinance;

“subscription television broadcasting licence” (收費電視廣播牌照) means a subscription television broadcasting licence within the meaning of section 2(1) of the repealed Ordinance and which was in force immediately before the relevant day or which was to come into force on or after that day;

“telecommunications licence” (電訊牌照) means a licence entitled “Satellite Television Uplink and Downlink Licence” granted under section 7 of the Telecommunications Ordinance (Cap. 106) and which was in force immediately before the relevant day or which was to come into force on or after that day.

2. Licences under repealed Ordinance deemed to be licences under Ordinance, etc.

(1) A commercial television broadcasting licence shall be deemed to be—

(a) a domestic free television programme service licence granted under this Ordinance; and
(b) a licence granted under the Telecommunications Ordinance (Cap. 106), for—
(i) if the licence was in force immediately before the relevant day, the unexpired portion of the period of validity the licence had left to run immediately before the relevant day;
(ii) if the licence was to come into force on or after the relevant day, the period of validity of the licence commencing on the day the licence was to come into force, and the provisions of this Ordinance and the Telecommunications Ordinance (Cap. 106), as the case may require, shall apply accordingly.
(2) A subscription television broadcasting licence shall be deemed to be—

(a) a domestic pay television programme service licence granted under this Ordinance; and
(b) a licence granted under the Telecommunications Ordinance (Cap. 106),
for—

(i) if the licence was in force immediately before the relevant day, the unexpired portion of the period of validity the licence had left to run immediately before the relevant day;
(ii) if the licence was to come into force on or after the relevant day, the period of validity of the licence commencing on the day the licence was to come into force,
and the provisions of this Ordinance and the Telecommunications Ordinance (Cap. 106), as the case may require, shall apply accordingly.

(3) A programme service licence shall be deemed to be a domestic pay television programme service licence granted under this Ordinance for—

(a) if the licence was in force immediately before the relevant day, the unexpired portion of the period of validity the licence had left to run immediately before the relevant day;
(b) if the licence was to come into force on or after the relevant day, the period of validity of the licence commencing on the day the licence was to come into force, and the provisions of this Ordinance shall apply accordingly.
(4) A telecommunications licence shall be deemed to be a non-domestic television programme service licence granted under this Ordinance for—

(a) if the licence was in force immediately before the relevant day, the unexpired portion of the period of validity the licence had left to run immediately before the relevant day;
(b) if the licence was to come into force on or after the relevant day, the period of validity of the licence commencing on the day the licence was to come into force, and the provisions of this Ordinance shall apply accordingly.
(5) A hotel television service licence—

(a) shall be deemed to be an other licensable television programme service licence granted under this Ordinance for—
(i) if the licence was in force immediately before the relevant day, the unexpired portion of the period of validity the licence had left to run immediately before the relevant day;
(ii) if the licence was to come into force on or after the relevant day, the period of validity of the licence commencing on the day the licence was to come into force,
and the provisions of this Ordinance shall apply accordingly;
(b) which is renewed under the Telecommunications Ordinance (Cap. 106) before the expiration of 12 months immediately following the relevant day shall continue to be deemed to be an other licensable television programme service licence granted under this Ordinance for the period of validity of the licence as so renewed, and the provision of this Ordinance shall apply accordingly.
3. Provisions of deemed licences deemed to be conditions specified in licences

The provisions of a deemed licence shall be deemed to be conditions specified in the licence, and, accordingly, the licensee shall comply with the deemed conditions except that, where there is any conflict between the deemed conditions and the provisions of this Ordinance or the Telecommunications Ordinance (Cap. 106), then the provisions of this Ordinance or the Telecommunications Ordinance (Cap. 106), as the case may require, shall prevail over the deemed conditions.

4. Disapplication of certain provisions of Ordinance

(1) Section 5 of this Ordinance shall not apply to a broadcasting service consisting of a television programme service lawfully provided by a person pursuant to an agreement—

(a) lawfully entered into before the specified day; and
(b) to lawfully use facilities in Hong Kong—

(i) which are not owned (including beneficially owned) by that person; and
(ii) to uplink the service to a satellite.
(2) Section 13 of this Ordinance shall not apply to an agreement lawfully entered into before the specified day if, and only if, the agreement—

(a) continues to be lawful apart from that section; and
(b) is not amended in any way whatsoever apart from any amendment made to mitigate the conduct in contravention of section 13(1) of this Ordinance provided or permitted, whether directly or indirectly, under the agreement.
(3) Subsections (1) and (2) shall expire on the 2nd anniversary of the specified day.

(4) Section 21 of this Ordinance shall not apply to a person—

(a) who was, on the specified day, lawfully exercising control of a corporation holding a licence falling within section 2(1), (2) or (3); and
(b) for so long as the person does not, on or after the specified day, increase the interest the person has in that corporation in the person’s capacity as a person who exercises control over the corporation.
(5) Where—

(a) immediately before the commencement of this subsection, a person was not a disqualified person—
(i) in relation to a licensee; and
(ii) by virtue of falling within paragraph (ii) of the proviso to the definition of “disqualified person” in section 2(1) of the repealed Ordinance (“the proviso”); and
(b) the licence, within the meaning of section 2(1) of the repealed Ordinance, of which the licensee referred to in paragraph (a)(i) was the holder immediately before the commencement of this subsection is a deemed licence,
then the person is not a disqualified person for the purposes of sections 3 and 7 of Schedule 1—

(i) in relation to the deemed licence and the licensee;
(ii) to the extent only that the person was not a disqualified person by virtue of falling within paragraph (ii) of the proviso; and
(iii) until such time, if any, as the person ceases to fall within paragraph (ii) of the proviso.
(6) For the purposes of subsection (5)(iii), the proviso referred to in that subsection shall be deemed never to have been repealed.

(7) In this section, “specified day” (指明日期) means 28 January 2000.

5. Payment of annual fees

(1) In the case of a deemed licence falling within section 2(1), (2) or (3)—

(a) the Financial Secretary may, by notice in writing served on the licensee, specify the fee to be paid to the Government by the licensee—
(i) for the year commencing on the relevant day; and
(ii) not later than 30 days after the relevant day; and
(b) section 13 of Schedule 4 to this Ordinance shall not apply to the licensee until the expiration of that year.
(2) In the case of a deemed licence falling within section 2(4)—

(a) the licensee shall continue to comply with the provisions of the licence relating to a licence fee until—
(i) the expiration of the licence; or
(ii) the surrender of the licence for another licence,
whichever is the earlier; and
(b) section 13 of Schedule 4 to this Ordinance shall not apply to the licensee until the occurrence of the event mentioned in paragraph (a)(i) or (ii).
(3) In the case of a deemed licence falling within section 2(5)—

(a) the licensee shall continue to comply with the provisions of the licence relating to a licence fee until—
(i) the expiration of the licence; or
(ii) the surrender of the licence for another licence,
whichever is the earlier; and

(b) section 13 of Schedule 4 to this Ordinance shall not apply to the licensee until—
(i) the occurrence of the event mentioned in paragraph (a)(i) or (ii); and
(ii) the licence held by the licensee does not specify a licence fee to be paid by the licensee to the Government.
(4) A notice under subsection (1)(a) served on a licensee shall be deemed to be a condition specified in the deemed licence held by the licensee requiring the licensee to pay to the Government the fee specified in the notice.

(5) Where—

(a) a licensee has before the relevant day paid an annual fee for a deemed licence falling within section 2(1), (2) or (3);
(b) the period for which that fee has been paid would, but for the commencement of section 44(1) of this Ordinance, expire on or after the relevant day; and
(c) the licensee has paid the fee required by subsection (1)(a),
then the Financial Secretary shall remit to the licensee so much of the annual fee referred to in paragraph (c) as is equivalent to so much of the fee referred to in paragraph (a) which, on a pro rata basis, relates to so much of the period referred to in paragraph (b) which would, but for the commencement of section 44(1) of this Ordinance, run on and after the relevant day.

6. Suspended licences

Where any licence falling within section 2(1), (2) or (3) was, immediately before the relevant day, suspended under the repealed Ordinance, then that licence shall, in the like manner, be deemed to be suspended under this Ordinance for the unexpired portion of the period of suspension left to run on that day, and the provisions of this Ordinance shall apply accordingly.

7. Actions, etc. under repealed Ordinance deemed to be done under Ordinance

Where an act, matter or thing has been done under the repealed Ordinance to or in relation to a licensee within the meaning of section 2(1) of that Ordinance, then to the extent that but for the enactment of this Ordinance that act, matter or thing would on or after the relevant day have had any force or effect or been in operation, that act, matter or thing shall, in the like manner, be deemed to have been done under this Ordinance to or in relation to the licensee as if, on the relevant day, that act, matter or thing were, to that extent, done under this Ordinance to or in relation to the licensee, and the provisions of this Ordinance shall apply accordingly.

8. Section 23 of Interpretation and General Clauses Ordinance

(1) Subject to sections 2 to 7 inclusive, section 23 of the Interpretation and General Clauses Ordinance (Cap. 1) shall apply to the repeal effected by section 44(1) of this Ordinance.

(2) It is hereby declared that a royalty within the meaning of the repealed Ordinance payable by a licensee (or former licensee) within the meaning of that Ordinance is payable on a pro rata basis in respect of that portion of the licensee’s (or former licensee’s) accounting year which has effluxed before the relevant day, and subsection (1) shall apply accordingly.

9. Deemed licence may be surrendered

Nothing in this Schedule shall operate to prevent a licensee which is the holder of a deemed licence from surrendering the deemed licence to the Chief Executive in Council or the Broadcasting Authority, as the case may require, in return for a licence granted under this Ordinance which, in the opinion of the Chief Executive in Council or the Broadcasting Authority, as the case may require, is equivalent to the deemed licence.

10. Certain Codes of Practice applicable for interim period for licensees that are holders of deemed licence

Where—

(a) a Code of Practice (“old Code”) within the meaning of section 2 of the repealed Ordinance was in force immediately before the relevant day; and
(b) a licensee who is the holder of a deemed licence was required to comply with the old Code immediately before the relevant day,
then—

(i) the old Code shall, in relation to the licensee, be deemed to be a Code of Practice within the meaning of section 2 of this Ordinance until the date on which a Code of Practice approved under section 3 of this Ordinance, and expressed to be in substitution for the old Code, comes into effect; and
(ii) subject to paragraph (iii), the licensee shall comply with the old Code until that date; and
(iii) the old Code shall be read and have effect with such modifications as are necessary to take into account the provisions of this Ordinance,
and the provisions of this Ordinance (including sections 23(2)(d), 24, 28(2)(d), 30(2)(d), 31(2)(b)(i)(D) and 32(4)(c)(i)(D) of this Ordinance) shall be construed accordingly.

⁠

SCHEDULE 9

[s. 44]

Consequential Amendments

Telecommunications Ordinance

1. Interpretation

Section 2 of the Telecommunications Ordinance (Cap. 106) is amended, in the definition of “licensee”, by repealing paragraph (b) and substituting—

“(b) includes the holder of a licence (other than a programme service licence)—
(i) granted under the Ordinance repealed by section 44(1) of the Broadcasting Ordinance (48 of 2000);
(ii) in force immediately before that repeal; and
(iii) deemed to be a licence granted under this Ordinance by virtue of Schedule 8 to the Broadcasting Ordinance (48 of 2000);”.
2. Prohibition of establishment and maintenance of means of telecommunications, etc., except under licence

Section 8(4)(e) is amended by repealing “broadcast by any company licensed under the Television Ordinance (Cap. 52)” and substituting “provided by any company licensed under the Broadcasting Ordinance (48 of 2000)”.

3. Interpretation

Section 13A(1) is amended, in the definition of “disqualified person”—

(a) by adding—
“(da) a person who is—
(i) a domestic free television programme service licensee, or a domestic pay television programme service licensee, within the meaning of section 2(1) of the Broadcasting Ordinance (48 of 2000); or
(ii) an associate, within the meaning of that section, of a licensee referred to in subparagraph (i);”;
(b) in paragraph (e), by repealing “or (d)” and substituting “, (d) or (da)(i)”.
4. General provisions as to licences, etc.

Section 34(6) is repealed and the following substituted—

“(6) Nothing in this section applies in respect of a licence—
(a) granted under Part IIIA; or
(b) deemed to be granted under this Ordinance by virtue of Schedule 8 to the Broadcasting Ordinance (48 of 2000).”.
5. Authority may determine terms of interconnection

Section 36A(3)(a) and (aa) is repealed and the following substituted—

“(a) and between telecommunications systems or services licensed under section 7 or expressed as being licensed in exercise of the powers conferred by sections 7 and 34 or deemed to be licensed under this Ordinance by virtue of Schedule 8 to the Broadcasting Ordinance (48 of 2000); and
(aa) and between services the subject of a licence the subject of section 2(3) of Schedule 8 to the Broadcasting Ordinance (48 of 2000); and”.
Telecommunications Regulations

6. Schedule 1 amended

Schedule 1 to the Telecommunications Regulations (Cap. 106 sub. leg.) is amended—

(a) in Part I, in item 28, by repealing “Hotel Television Services Licence” and substituting “Hotel Television (Transmission) Licence”;
(b) in Part II—
(i) by repealing “HOTEL TELEVISION SERVICES LICENCE” and substituting “HOTEL TELEVISION (TRANSMISSION) LICENCE”;
(ii) in the “HOTEL TELEVISION (TRANSMISSION) LICENCE”, in paragraph 1, by repealing “hotel television services licence” and substituting “hotel television (transmission) licence”.
7. Form of Licences

Schedule 3 is amended—

(a) by repealing “HOTEL TELEVISION SERVICES LICENCE” and substituting “HOTEL TELEVISION (TRANSMISSION) LICENCE”;
(b) in the form for the Satellite Master Antenna Television Licence, by adding at the end—
“NOTE: Any reference in this form to a service, licence or licensee under the Television Ordinance (Cap. 52) shall, with all necessary modifications, be construed to be a reference to a service, licence or licensee under the Broadcasting Ordinance (48 of 2000), and the provisions of this licence shall apply accordingly.”;

(c) in the form for the Fixed Telecommunication Network Services Licence, in the General Conditions, in General Condition 29(3)(e), by repealing “Television Ordinance (Cap. 52)” and substituting “Broadcasting Ordinance (48 of 2000)”.
Gambling Ordinance

8. Gambling is unlawful

Section 3(8) of the Gambling Ordinance (Cap. 148) is amended by repealing “Television Ordinance (Cap. 52)” and substituting “Broadcasting Ordinance (48 of 2000)”.

Road Traffic (Construction and Maintenance of Vehicles) Regulations

9. Visual display units

Regulation 37(3)(a) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations (Cap. 374 sub. leg.) as amended by the Road Traffic (Construction and Maintenance of Vehicles) (Amendment) Regulation 2000 (L.N. 1 of 2000) is repealed and the following substituted—

“(a) any television programme within the meaning of section 2(1) of the Broadcasting Ordinance (48 of 2000); or”.
Control of Obscene and Indecent Articles Ordinance

10. Ordinance not to apply in case of certain films, etc.

Section 3(c) of the Control of Obscene and Indecent Articles Ordinance (Cap. 390) is repealed and the following substituted—

“(c) material within the meaning of section 2(1) of the Broadcasting Ordinance (48 of 2000) permitted to be provided under that Ordinance.”.
11. Prohibition on publishing obscene articles

Section 21(2)(c)(ii) is repealed and the following substituted—

“(ii) by a person licensed under the Broadcasting Ordinance (48 of 2000) for the purpose of submitting it under that Ordinance for provision under that Ordinance;”.
12. Prohibition on display of indecent matter

Section 23(2)(a) is repealed and the following substituted—

“(a) included in a television programme service provided by a company licensed under the Broadcasting Ordinance (48 of 2000); or”.
13. Prohibition on possession of indecent article for the purpose of publication

Section 27A(2)(b)(ii) is repealed and the following substituted—

“(ii) as a person licensed under the Broadcasting Ordinance (48 of 2000) for the purpose of submitting it under that Ordinance for provision under that Ordinance;”.
Broadcasting Authority Ordinance

14. Interpretation

Section 2 of the Broadcasting Authority Ordinance (Cap. 391) is amended—

(a) in the definition of “broadcasting”, by repealing paragraphs (b) and (c) and substituting—
“(b) in relation to television broadcasting services, the provision of a television programme service within the meaning of section 2(1) of the Broadcasting Ordinance (48 of 2000);”;
(b) in the definition of “Code of Practice”, by repealing paragraphs (b) and (c) and substituting—
“(b) in relation to television broadcasting, a Code of Practice approved and issued under section 3 of the Broadcasting Ordinance (48 of 2000);”;
(c) in the definition of “licence”, by repealing paragraphs (b) and (c) and substituting—
“(b) in relation to television broadcasting services, a licence granted (or deemed to be granted) under section 8 of the Broadcasting Ordinance (48 of 2000);”.
15. Section substituted

Sections 9 to 9D inclusive are repealed and the following substituted—

“9. Functions and powers of the Authority
(1) The Authority shall have the following functions—
(a) the functions imposed on it under the Broadcasting Ordinance (48 of 2000);
(b) the functions imposed on it under Part IIIA of the Telecommunication Ordinance (Cap. 106);
(c) to administer the provisions of licences and any other provisions of such licences that confer a function on the Authority;
(d) to secure proper standards of television and sound broadcasting with regard to both programme content (including advertisements) and technical performance of broadcasts including, without limitation, restrictions on the time of day when programmes and advertisements may be provided, whether for the same or different licensees or broadcasts;
(e) to submit proposals and recommendations to the Chief Executive in Council with respect to technical, programme and advertising standards of television and sound broadcasting in order to assist the Chief Executive in Council in the making and amendment of regulations under the Broadcasting Ordinance (48 of 2000) or under Part IIIA of the Telecommunications Ordinance (Cap. 106) governing such standards;
(f) to conduct inquiries into such matters as may be referred to it by the Chief Executive in Council and to report the conclusions of such inquiries to the Chief Executive in Council;
(g) such other functions as are assigned to it under this or any other Ordinance.
(2) The Authority shall have, in addition to the powers expressly or impliedly conferred on it by or pursuant to this Ordinance, the Broadcasting Ordinance (48 of 2000) or Part IIIA of the Telecommunication Ordinance (Cap. 106) or any other Ordinance, such incidental powers as are reasonably necessary for the performance of its functions.”.
16. Consideration of complaints by the Complaints Committee

Section 11 is amended—

(a) in subsection (1)(a), by repealing “Television Ordinance (Cap. 52)” and substituting “Broadcasting Ordinance (48 of 2000)”;
(b) by repealing subsection (2) and substituting—
“(2) Subsection (1) shall not apply to a complaint concerning—
(a) any matter referred to in section 13(1) or 14(1) of the Broadcasting Ordinance (48 of 2000); or
(b) any matter referred to in section 19 of the Broadcasting Ordinance (48 of 2000) or any script or material supplied for broadcasting by the Government and broadcast by a licensee.
(2A) The Authority shall refer to the Government a complaint which falls within subsection (2)(b).”;
(c) in subsection (5), by repealing “21 of the Television Ordinance (Cap. 52)” and substituting “38 of the Broadcasting Ordinance (48 of 2000)”;
(d) in subsection (7), by repealing “45 of the Television Ordinance (Cap. 52)” and substituting “25 of the Broadcasting Ordinance (48 of 2000)”.
17. Section added

The following is added—

“11A. Consideration of complaint that a licensee has contravened section 13(1) or 14(1) of Broadcasting Ordinance
(1) A person may make a complaint in writing to the Authority that a licensee has contravened section 13(1) or 14(1) of the Broadcasting Ordinance (48 of 2000).
(2) Subject to subsection (3), the Authority, upon receipt of a complaint under subsection (1), shall—
(a) give the licensee the subject of the complaint a reasonable opportunity to make representations in writing;
(b) consider any representations in writing made by or on behalf of the complainant and the licensee; and
(c) consider any evidence received by it, whether tendered on behalf of the complainant or otherwise, which it considers relevant to the complaint.
(3) The Authority may receive such evidence as it thinks fit and neither the provisions of the Evidence Ordinance (Cap. 8) nor any other rule of law relating to the admissibility of evidence shall apply in proceedings before the Authority.”.
18. Delegation of powers, etc. to principal executive officer

Section 14(2)(b) is repealed and the following substituted—

“(b) section 3, 4, 8, 9, 10, 11, 28, 31, 32 or 33 of the Broadcasting Ordinance (48 of 2000).”.
19. Indemnity

Section 16 is amended by repealing “Television Ordinance (Cap. 52)” and substituting “Broadcasting Ordinance (48 of 2000)”.

20. Authority may impose financial penalties

Section 24 is amended—

(a) in subsection (3)—
(i) in paragraph (a), by repealing “$20,000” and substituting “$80,000”;
(ii) in paragraph (b), by repealing “$50,000” and substituting “$200,000”;
(iii) in paragraph (c), by repealing “$100,000” and substituting “$400,000”;
(b) by adding—
“(3A) The Authority shall not impose a financial penalty under this section unless, in all the circumstances of the case, the financial penalty is proportionate and reasonable in relation to the failure or series of failures concerned giving rise to that penalty.
21. Section added

The following is added—

“25A. Licensee to include correction or apology in sound broadcasting service
(1) Subject to subsection (3), the Authority may, in a case described in subsection (2), direct a licensee by a notice in writing served on it, to include in a sound broadcasting service specified in the notice, a correction or apology, or both, in a form approved by the Authority, in such manner (including within such period and within such time of day) as is specified in the notice.
(2) The Authority may issue a direction under subsection (1) if it is satisfied that the licensee did not comply with—
(a) a licence condition;
(b) a requirement under this Ordinance applicable to the licensee;
(c) a direction or order issued, or determination made, under this Ordinance applicable to it; or
(d) a provision in a Code of Practice applicable to it.
(3) The Authority shall not issue a direction under subsection (1) unless the licensee has been given a reasonable opportunity to make representations in writing to the Authority regarding the matter complained of.
(4) Where the licensee carries out a direction under this section, it may announce that it is doing so pursuant to the direction.”.
Copyright Ordinance

22. Reception and re-transmission of broadcast in cable programme service

Section 82(1)(b) and (2)(b) of the Copyright Ordinance (Cap. 528) is amended by repealing “under the Television Ordinance (Cap. 52)” and substituting “, or deemed to be licensed, under the Telecommunication Ordinance (Cap. 106)”.

23. Reception and re-transmission of broadcast in cable programme service

Section 259(1)(b) and (2)(b) is amended by repealing “under the Television Ordinance (Cap. 52)” and substituting “, or deemed to be licensed, under the Telecommunication Ordinance (Cap. 106)”.

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