The one-country two-systems concept has been the centrepiece of how Hong Kong has been governed since China took the territory back in 1997. There are now growing – and disturbing signs – that the one-country element is over-riding two-systems, and that could have far-reaching implications on Hong Kong's autonomy and one of its most fundamental rights – freedom of expression and press freedom.

 

This trend is not new. Indeed, observers have noted that Beijing has become more aggressive in pursuing its policies towards Hong Kong since massive protests over a proposed national security law forced the government to withdraw the draft in 2003. In some ways, this issue has become a lightning rod for Hong Kong's autonomy, with mainland officials suggesting that Macau had done better than Hong Kong because it had enacted such legislation without the kinds of protests witnessed in Hong Kong at the time. Such comments exert pressure on those both within and outside the government.

 

The argument over Hong Kong's autonomy is vital. Upon the handover in 1997, there was an assumption that Hong Kong would enjoy what was known as "a high degree of autonomy" in all matters except for defence and foreign affairs. This autonomy has undoubtedly been diminished over time, in particular as Beijing became more interested in – and more involved in – Hong Kong's affairs.

 

This trend has been highlighted in several ways. The police have become more intolerant towards protests, in particular those staged in front of Beijing's Liaison Office in Western. Protesters have been arrested far too easily. For example, a protester was detained in October 2010 for accidentally splashing a security guard at the Liaison Office with spray from a just opened champagne bottle. In this case, fortunately, sense prevailed and no charge was laid against the woman involved. But protesters are reporting that the police have become less tolerant of their activities. We highlighted our fears on this front in our 2010 annual report – and continue to do so this year.

 

The rise of the one-country element of the formula is also shown in the government's refusal to allow mainland dissidents to visit Hong Kong. They include the 1989 student leader, Wang Dan, who wished to attend the funeral of Hong Kong democracy leader Szeto Wah, who played a leadership role in the efforts to spirit dissidents such as Mr. Wang out of China in the wake of Beijing's crackdown against the 1989 pro-democracy movement there.

 

It is also evident in the refusal of the Hong Kong government to countenance true independence for government-owned Radio Television Hong Kong (RTHK). The government announced in September 2009 that RTHK would remain a government department – despite strong calls from the broadcaster and the public for it to become an independent corporation, along the lines of most overseas public service broadcasters. In the year under review, the government has continued to implement policies which cement RTHK as a government department – thereby opening it to potential government interference in its editorial policies.

 

A pointer to the change of approach towards the one-country two-systems concept came during a Legislative Council debate on press freedom in May 2011. The convenor of the pan-democratic camp in the Legislative Council, Cyd Ho, put forward a non-binding motion calling on the government "to safeguard freedom of the press and the right to expression." It was eventually passed in an amended form – with an amendment put forward by a pro-Beijing stalwart, Philip Wong. Mr. Wong's motion urged the government to continue to safeguard freedom of the press and the right to expression "in accordance with the Basic Law and the principle of one country, two systems." The latter wording turns the motion into a pro-government and pro-Beijing expression of views.

 

Other amendments were voted down, including one urging the government to abide by the International Covenant on Civil and Political Rights, the Basic Law and the Hong Kong Bill of Rights Ordinance over the staging of processions and assemblies. The final motion – with its pro-Beijing slant – was endorsed by all but eleven legislators. Among those endorsing it were legislators from the Democratic Party, who are normally vocal in support of freedom of expression. The pan-democrat Civic Party abstained in the final vote – although it backed Philip Wong's amendment in an earlier vote.

 

The past year has also seen signs that the problem of self-censorship in the media may be growing. A University of Hong Kong Public Opinion Programme survey released in April 2011 found that 54 percent of respondents believed that the media practised self-censorship. This is a record figure since the 1997 handover, and is attributed mainly to the media's unwillingness to criticise the central government in Beijing. It also reported that the general credibility rating of the news media had dropped to 6.03 – the lowest level since 2006 – on a scale from zero to 10. The chairperson of the

Hong Kong Journalists Association (HKJA) noted: "It's not about whether the media does (self-censor) or not any more, but whether we've internalised it to the point where we do it unconsciously."

 

Our 2010 annual report also reported that the political scene in Hong Kong was turning decidedly sour. This trend has continued in the current year. At times, it has appeared that the government has been losing its authority, with controversy surrounding illegal structures at the homes of top government officials, including the chief executive, allegations that the government tried to skew a tender for internet services for the poor for political reasons, and a government move to scrap by-elections for popularly elected Legislative Council seats – in reaction to the resignation of five pan-democrat legislators who tried to turn the campaign into a referendum on full democracy.

 

The current administration of the chief executive, Donald Tsang, has one more year left – until the end of June 2012. Elections for a new chief executive will take place in March 2012. The electoral process – which is now underway in an informal manner – is also undoubtedly eroding the ability of the current administration to operate effectively.

 

Mr. Tsang cannot serve another term. Three names are now being mentioned as possible chief executives – although none is yet in a position to confirm whether they will run. They are the current chief secretary for administration, Henry Tang, the convenor of the Executive Council, Leung Chun-ying, and the former president of the Legislative Council, Rita Fan, who is currently Hong Kong's most senior member of China's National People's Congress.

 

Indeed, one of the potential contenders – Rita Fan – went public in May 2010 for the next chief executive to enact ct national security legislation under Article 23 of the Basic Law. This legislation poses a massive threat to freedom of expression insofar as it will outlaw treason, sedition, subversion, secession and the theft of state secrets. The 2003 attempt to enact the law failed after half a million people took to the streets – in large part because of how the law would affect freedom of expression. Fears over another attempt to enact such a law will be equally controversial – in particular given that one National People's Congress delegate from Hong Kong, Peter Wong, has suggested that the expression of views might constitute subversion.

 

Given that the sun is setting on the current government, we will this year focus on what we believe the next chief executive should do to strengthen freedom of expression during his or her term of office from 2012 to 2017, and for a further five years if the new leader chooses to serve a second term.

 

The HKJA therefore calls on the next chief executive to take the following action:

 

1) Resist pressure to enact national security legislation. The HKJA believes that such legislation is unnecessary as there is no pressing need for its enactment and existing laws are already sufficient in prohibiting acts contained in Article 23 of the Basic Law. However, if the government does decide to proceed with such legislation, then the law must contain safeguards that are robust enough to protect freedom of expression and press freedom. The minimum standards are the adoption of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, as well as proper public interest and prior publication defences.

 

2) Enact as a matter of urgency freedom of information legislation to ensure access to government information and documents. The legislation should be based on the principles of maximum disclosure, limited and narrowly drawn exemptions and an effective and independent appeal mechanism. The government should also move quickly to enact an archives ordinance to ensure that documents which should be available under a freedom of information law are kept in a proper manner.

 

3) Review government policies on the release to the media – and thereby to the public – of government and police information. The government should adopt the principle of maximum disclosure of such information, and should make it a rule to release information on new government policies at full press conferences, where journalists can question senior officials about their plans. Background briefings should be used only to supplement what is released at press conferences, not to replace them. Further, the police and fire services should release information about crime reports and other incidents of public interest in full and in a timely manner, omitting only personal information.

 

4) Review its policy and attitude towards dissent, including policing, arrests and harassment of protesters, as well as the admission of dissidents to Hong Kong. This should be done on several levels, including a review of restrictive provisions in the Public Order Ordinance, which bars unauthorised marches and rallies. The government should also review whether its actions against protesters are in line with its obligations under the International Covenant on Civil and Political Rights.

 

5) Reverse its decision to retain Radio Television Hong Kong as a government department. The decision runs counter to international trends and UNESCO's call for state-controlled media to be turned into independent public service broadcasters. The government should – as a matter of urgency – launch plans to separate RTHK from the government. The broadcaster should be re-constituted by legislation guaranteeing its independence in clear and unambiguous terms.

 

6) Take a robust line with Beijing over the treatment of Hong Kong journalists carrying out legitimate duties in mainland China. The government should make it clear to Chinese leaders that harassment and detention of journalists are totally unacceptable. It should also urge the government in Beijing to scrap all regulations that impose restrictions on Hong Kong-based journalists working on the mainland, including those that deny access for journalists working for publications which are considered to be unfriendly to Beijing.

 

 

The HKJA has in the past highlighted the increasing influence of China over Hong Kong – to the detriment of guarantees that Hong Kong would enjoy a high degree of autonomy in the way it handles domestic issues. Critics of government policy have pointed to harsher treatment of protesters and the barring of mainland dissidents from Hong Kong. There was, however, some good news. The government announced that it would not enact national security legislation during the remainder of the term of the serving chief executive, Donald Tsang, who steps down at the end of June 2012, although pressure is growing for the government to tackle the issue once a new leader is in place.

 

The trend for the government, and in particular the police, to take a harsher line against protesters has continued in the year under review, although it has been mitigated by several high-profile court acquittals of those arrested. In June 2011, the Civil Human Rights Front – which organizes the annual July 1st anti-government march – reported that 179 people were arrested in protests in the first half of the year, compared with 53 in 2010.

 

In August 2010, the front released a report accusing the police of abusing its powers more often in arresting protesters. It also noted that many of those arrested had to wait for an extended period of time to learn that they would not face charges.

 

The front also noted that an increasing number of people were being charged under the tougher Offences Against The Person Ordinance, rather than the Police Force Ordinance. The offences are the same, but the first law provides for a maximum penalty of two years in jail, while the second sets out six months in prison as the maximum possible sentence. A spokesman for the front, Icarus Wong, said both the Department of Justice, which decides whether to proceed with a prosecution, and the police were responsible for the rise in the number of cases brought under the tougher law.

 

Many of the pro tests in which police have intervened forcefully took place outside Beijing's liaison office in Western – one of the most sensitive areas in Hong Kong given Beijing's fear of dissent. For example, there were scuffles between protesters and the police during a protest calling for the release by the mainland authorities of artist Ai Weiwei, who was detained in April 2011 at Beijing's airport as he was about to board a flight to Hong Kong. Two protesters were detained inside police vehicles – although on this occasion neither was arrested.

 

Action to seek Mr. Ai's release also saw criticism of the police over its actions to find a street artist who painted images of the detained mainland activist on pavements throughout Hong Kong in April 2011, with the tagline "Who's Afraid of Ai Weiwei?" The Yau Ma Tei district crime squad is in charge of the investigation, with help from the West Kowloon Regional Crime Unit, which normally handles more serious crimes such as murder and rape. The director of Hong Kong Human Rights Monitor, Law Yuk-kai, said: "It is very clear that the police are under political pressure to pay special attention to the Ai Weiwei drawings."

 

There was also controversy after the People's Liberation Army (PLA) in Hong Kong protested against the projection of an image of Mr. Ai on to the wall surrounding its headquarters in Central. The PLA said it "reserves its legal right" over the incident. A spokesman said the move was "a breach of Hong Kong law". However, the police commissioner Andy Tsang said confidently that beaming the images was not a criminal offence – and Civic Party legislator Ronny Tong said he could not see how the artist had breached the law. Mr. Ai's image was also projected onto other buildings in the area, including the police headquarters.

 

However, two activists were arrested in May 2011 on suspicion of criminal damage while teaching people how to spray-paint Ai Weiwei graffiti on the ground. They were both members of the League of Social Democrats – former legislator Tsang Kin-shing and former district councillor Lam Sum-shing. They were later released without being charged.

 

In late April 2011, several hundred protesters marched form Mong Kok to Tsim Sha Tsui to protest against Mr. Ai's detention. Among them was the young artist of the street paintings, who goes by the nickname "Chin". One of the march organisers, Kacey Wong, noted: "This kind of disappearance (Mr. Ai's) could be foreshadowing what is to come. This could happen in Hong Kong. Look at what's happening to the graffiti girl (Chin), who is being chased by police. It's a warning sign of censorship." At the time of publication, Chin was still free.

 

MULTIPLE ARRESTS AT ANTI-BUDGET PROTEST

 

One of the most prominent protests in the year under review took place in March 2011 following a march against the government's much criticized budget. The police used pepper spray and arrested 113 people after a group of people mounted a late night sit-in at a road junction in the central business district. The police came in for severe criticism over their actions, and in particular the pepper-spraying of an eight-year-old boy who was among the protesters.

 

There were further arrests in June 2011, when some of those arrested and their supporters tried to march to North Point police station to call for the unconditional release of those who had been detained during the March protest. They staged the march following the annual candlelight vigil to remember those who died in the June 4th 1989 crackdown against the pro-democracy movement in Beijing. Scuffles broke out around midnight – and 53 people were detained, including one woman who was accused of stealing a police baton.

 

There was controversy also at the candlelight vigil held in Victoria Park. The organisers said more than 150,000 people attended the event – about the same figure as in 2010. But the organiser, legislator Lee Cheuk-yan, complained that the police had prevented many people from attending, by restricting access to the venue. Citing political reasons for the police action, Mr. Lee threatened to take the case to the Independent Police Complaints Council.

 

The police maintained, however, that their policy towards protesters had not changed. The outgoing police commissioner, Tang King-shing, said in January 2011 that the force had to balance the interests of different sectors of the public. He said: "We wish on one hand to facilitate citizens expressing their opinions, and on the other hand to minimise the disturbance to others." But Mr. Tang did not respond to the allegation that the police had special treatment for those taking part in protests outside Beijing's liaison office.

 

Mr. Tang's successor, Andy Tsang, has a reputation for being tougher on policing issues. However, he dismissed suggestions that he would take a tougher stance against demonstrators. He said that under his leadership the force would respect the rights of protesters, although police would strike a balance to ensure public order and safety at such events. He said the force was required to ensure demonstrations and public meetings were conducted peacefully.

 

The new director of public prosecutions, Kevin Zervos, also weighed into the controversy. He pledged to adhere to legal principles in deciding whether to prosecute protesters, but stressed that action would be taken if people engaged in "violent and aggressive action". He added: "The prosecutor usually has a degree of leeway. Demonstrators have the fundamental right of assembly but sometimes they are in an agitated and excited state.”

 

THE COURTS C OME TO THE RESCUE... SOMETIMES

 

Some activists were convicted following their participation in protests. For example, online radio station host Yang Kuang was sentenced to 14 days in jail for tearing off a woman constable's shoulder badge during a protest outside Beijing's liaison office in June 2010. However, the magistrate acquitted Mr. Yang of obstructing a police officer in the execution of her duty. The accused rejected the charge of assaulting the officer, saying he was trying to read the constable's badge number so he could lodge a complaint.

 

Yang Kuang found himself in court again – once more for tearing off the epaulette of a police officer. This incident happened in January 2011 during a protest in the central business district against the construction of a high-speed rail link from Hong Kong to Guangzhou. Yang was found guilty and sentenced to 80 hours of community service.

 

The most high-profile acquittal involved six activists who were charge d with unlawful assembly for taking part in a 2009 Christmas Day protest outside Beijing's liaison office following the jailing – on the same day – of mainland dissident Liu Xiaobo for 11 years, which was considered a particularly harsh sentence. Mr. Liu was accused of inciting the subversion of state power. Among those charged with unlawful assembly were legislators Leung Kwok-hung and Lee Cheuk-yan.

 

In December 2010, Eastern Court magistrate Anthony Yuen found the defendants not guilty on the basis that their conduct – in entering the compound inside the liaison office complex – could not have provoked other people to commit a breach of the peace, because the only people present were protesters, security guards, police officers and reporters. The accused said the charges were politically motivated.

 

The Christmas Day protest was organised by the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, which in April 2010 staged a march to protest against "political persecution". The then chairman of the Alliance, Szeto Wah, said: "The government wants to silence our voice. But we shall not be frightened off. We shall continue to fight and voice our views over human rights and democracy."

 

In September 2010, the same magistrate – Anthony Yuen – acquitted student activist Christina Chan of assaulting a police officer during a New Year's Day rally – also outside Beijing's liaison office. Ms. Chan had been arrested outside the main office of Radio Television Hong Kong – after attending a radio programme. The magistrate agreed with the defence contention that Ms. Chan's action in hitting a policewoman might have been accidental, given that there was much pushing during the protest. Ms. Chan said: "The police prosecute activists without much evidence – but even if the court acquits arrested protesters, they still have to spend time and money to defend themselves."

 

One of the strangest cases involved the arrest of another activist, Ip Ho-yee, for her involvement in a protest – again outside Beijing's liaison office. The protest was held in October 2010 to celebrate the awarding of the Nobel Peace Prize to the jailed mainland dissident Liu Xiaobo. It was reported that activists opened three bottle s of champagne, and some of the spray from Ip's bottle accidentally hit a security guard behind the main gate of the liaison office. Ms. Ip was arrested after the security guard complained to the police.

 

A police spokeswoman said one month later that all charges against Ms. Ip had been dropped after the Department of Justice decided against prosecution. Democratic Party legislator James To said the arrest "made Hong Kong a laughing stock among the international community" and that "the police are only putting their own integrity in doubt".

 

However, in April 2011 an assistant to lawmaker Leung Kwok-hung was arrested for throwing flour during a protest outside Beijing's liaison office in December 2010. League of Social Democrats member Penny Keung was arrested at his home in connection with a protest calling for the release of mainland tainted milk activist Zhao Lianhai. Mr. Keung threw a plastic packet of corn flour – in an act meant to symbolise the tainted milk formula. Two policemen were taken to hospital after flour went in their eyes. Mr. Keung said his arrest was "political" and was an attempt by the government "to suppress freedom of expression of protesters."

 

Two other League members, Steve Wong and Raphael Wong, were charged with acting in a disorderly manner over an incident in March 2011 in which the chief executive, Donald Tsang, claimed to have been injured in an assault during a ceremony at the Museum of History. Television footage of the incident cast doubt on Mr. Tsang's claim. If an attack had taken place, the police could have laid more serious common assault charges. The pair pleaded not guilty to the charge. The police commissioner, Andy Tsang, denied that the arrests were political in nature.

 

In another court case, an executive member of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, Li Yiu-kee, faced trial over the erection of several artworks at a prominent public place – Times Square – in Causeway Bay. The artworks included a replica of the Goddess of Democracy statue and a relief titled "Tiananmen Massacre". They were displayed ahead of the anniversary of the suppression of the 1989 pro-democracy movement in China. The police seized the artworks – before returning them three days ahead of the Hong Kong Alliance's annual June 4^th vigil.

 

Mr. Li was charged with using a place of public entertainment without a licence under the Places of Public Entertainment Ordinance – a charge he denies. The chairman of the Democratic Party, Albert Ho, had noted previously that organisers had staged activities in Times Square before – and the police had not taken any action. Indeed, in late May 2011, the organisers erected another Goddess of Democracy statue at Times Square. This time, the police did not take any action against the organisers.

 

The Places of Public Entertainment Ordinance was used again in May 2011 to stop a dance by participants at an anti-homophobia rally. Police stopped the dancers five minutes into their routine in a pedestrian area. An organizer of the march, Reggie Ho, called the police action "an act of intimidation". One of the participants – who has chosen to remain anonymous – announced that he would seek a judicial review of the police action.

 

DISSIDENTS BARRED FROM SZETO WAH'S FUNERAL

 

On January 2nd 2011 the revered pro-democracy fighter Szeto Wah passed away at the age of 79 after a long fight with lung cancer. He had long been a thorn in the side of the Chinese government – and indeed Beijing's influence was much in evidence in the decision taken by the Hong Kong government to bar several prominent mainland dissidents from Mr. Szeto's funeral, which was held at the end of January.

 

Mr. Szeto had played a leadership role in the operation to spirit Chinese pro-democracy activists out of the country in the wake of the suppression of the pro-democracy movement there in June 1989. Two prominent student leaders from that movement – Wang Dan and Wu'er Kaixi – expressed a wish to attend Mr. Szeto's funeral, to pay their last respects to the man they considered to be their saviour.

 

Initially, there were indications that the Hong Kong government might agree to their request to be granted visas to Hong Kong, especially after Wang Dan pledged publicly not to speak to the media and to return to Taiwan – where he is living – immediately after the funeral. Indeed, the newly appointed director of the State Council's Hong Kong and Macau Affairs Office, Wang Guangya, had told a delegation of Hong Kong editors that a decision on whether to grant visas lay with the Hong Kong government.

 

Just days before the funeral, Democratic Party legislator Cheung Man-kwong revealed that the government had decided against issuing visas to the pair. He said the government official he was dealing with did not give any explanation. The chief executive, Donald Tsang, also refused to comment on the issue when pressed by journalists.

 

Mr. Cheung said he suspected the final decision on the issue had been made by Beijing. He said: "The Hong Kong government has discussed with us the details of the arrangement on Wang's activities in the city... They would not discuss all these things if they had decided to deny him entry."

 

Wang Dan expressed sadness and anger over the decision. He said: "I think the government decision has once again proved that the so-called one-country two-systems is a lie. Can the Hong Kong government explain clearly what kind of harm I would pose to the public?" He added: "The Hong Kong government has completely given up the right to self-rule".

 

Wu'er Kaixi was allowed to enter Hong Kong in 2004 to attend the funeral of Cantopop singer Anita Mui. He accepted several media interviews at the time, and gave a speech to the Foreign Correspondents' Club. However, Wang Dan has consistently been refused entry to Hong Kong, despite several attempts to attend the June 4th candlelight vigil.

 

MACAU DENIES ENTRY TO HONG KONG ACTIVISTS

 

Hong Kong was not alone in refusing entry to those it considered potential troublemakers. In November 2010, Macau turned away several Hong Kong activists who wanted to stage protests during a visit to the territory by the Chinese premier, Wen Jiabao – his first to Macau. They included seven activists from the April Fifth Action Group and five from the Hong Kong Alliance in Support of Patriotic Democratic Movements of China.

 

The two groups had planned to separately hand petitions to Mr. Wen asking for the release from prison of Nobel Peace Prize winner Liu Xiaobo and tainted milk activist Zhao Lianhai. Macau immigration officials told them they were being refused entry under the city's internal security law. No further explanation was given. They were put on a ferry back to Hong Kong.

 

One of those refused entry, then alliance vice-chairman Lee Cheuk-yan, said: "We find the reason given by the Macau government very ridiculous. It said our entry would threaten its internal stability and security".

 

Macau has a long history of turning away Hong Kong activists. In December 2009, a group of 15 tried unsuccessfully to enter Macau to petition Chinese president Hu Jintao, who was visiting the city to celebrate the 10^th anniversary of Macau's return to China.

 

However, concern was raised several notches in October 2010 when Macau immigration officers turned away a little known Hong Kong social worker, Nano Yeung. She said she had no idea why she had been denied entry, adding that she was visiting the city for the day with her family. Ms. Yeung is involved with a Hong Kong group called Concerning CSSA Review Alliance, which helps poor people. The director of Hong Kong Human Rights Monitor, Law Yuk-kai, called the denial of entry a "worrying trend".

 

JOURNALISTS FACE HARASSMENT ON MAINLAND

 

In a symbolic act, six human rights groups, including the HKJA, staged a protest in April 2011 to highlight attacks in mainland China on freedom of expression. They warned Hong Kong people not to travel to certain parts of China, which were witnessing particular repression of free speech. They are Beijing, Shanghai, Sichuan and Guangdong – for which the groups issued black travel warnings – in a spoof of the Hong Kong government's own travel advisory system.

 

The groups noted that around 60 activists, writers and lawyers had been detained in the previous few months, including artist Ai Weiwei. They said four activists in Sichuan province faced criminal charges.

 

The renewed crackdown came after calls were made for Chinese people to take part in protests modelled on the so-called "Jasmine Revolution" in Tunisia. A large police presence was visible at sites where protests were meant to take place. In one case, in central Beijing in late February, police beat, kicked and detained reporters and camera crews from at least 16 foreign media outlets, including Bloomberg, the BBC, CNN and Voice of America.

 

In early March, there were reports that more than a dozen foreign journalists were summoned to the Public Security Bureau, to be told that they would have trouble renewing their visas if they covered further jasmine-style rallies. They were also told that they would have to seek approval to cover news in certain areas, including central Beijing, so that the streets could be kept clear of congestion. There were previously no such restrictions.

 

Violence against journalists also extended to Hong Kong reporters. In December 2010, a group of Hong Kong journalists was attacked outside the home of jailed activist Zhao Lianhai. The activist was jailed for two and a half years after launching a campaign on behalf of children who had become ill after drinking tainted milk. The activist's own son was one of the victims. Mr. Zhao was later released from prison on medical parole.

 

A group of reporters gathered outside Mr. Zhao's home in Beijing, to follow up rumours that Mr. Zhao would be released. About 40 people, identifying themselves as members of the local residential committee, rushed out and attacked the journalists after a TVB cameraman started taking shots of the housing estate. During the incident, a woman wearing a residential committee badge slapped an RTHK reporter, Teresa Wong, who was using her mobile phone to take pictures as the TVB cameraman was being kicked.

 

Media groups in Hong Kong, including the HKJA, expressed outrage at the incident and urged the mainland authorities to investigate the attack. RTHK also expressed anger. Its then director, Franklin Wong, said: "It is unacceptable for journalists to be attacked amid normal news reporting."

 

Xinhua news agency prompted further anger when it put out a release saying that the reporters were upsetting residents. The agency said the incident happened after several residents and volunteers demanded that the Hong Kong reporters stop filming because they were blocking their passage. The HKJA's chairperson, Mak Yin-ting, said the Xinhua report was one-sided – adding that the Hong Kong reporters could not have caused any obstruction because there were so few of them. She called on the Hong Kong government to follow-up on the incident. For his part, the secretary for constitutional and mainland affairs, Stephen Lam, said they had expressed concern to the State Council's Hong Kong and Macau Affairs Office. Nothing more was heard from the Hong Kong government on this issue.

 

GOVERNMENT DECIDES AGAINST ENACTING SECURITY LAW

 

In October 2010, the chief executive, Donald Tsang, announced in his policy address that the government would not enact national security legislation in his current term, which ends in June 2012. The Hong Kong government is under an obligation, under Article 23 of the Basic Law, to enact legislation banning treason, sedition, subversion, secession and the theft of state secrets. Hong Kong tried to enact such legislation in 2003, but the government shelved the draft law after half a million people took to the streets to oppose it.

 

Mr. Tsang said he was aware of the "diverse opinions" regarding the enactment of national security legislation. He said the majority view was that the government should focus on promoting economic development, improving people's livelihood and maintaining the prosperity, stability and development of Hong Kong society in the remainder of his term. However, he noted that the government had a constitutional duty to enact such legislation – and he expressed the hope that "different sectors of the

community will eventually arrive at a consensus and complete this task in due course."

 

Pressure had been growing among politicians close to Beijing for the government to enact a national security law. In February 2010, a Hong Kong delegate to the National People's Congress (NPC), Peter Wong, launched a bid to initiate debate on the issue ahead of the annual NPC session in Beijing. Mr. Wong's bid did not receive support from NPC delegates. Then in August 2010, a pro-Beijing legislator, Philip Wong, urged the chief executive to reintroduce the bill. He said: "We have a constitutional duty to enact laws under Article 23. Do you think the mainland relies on us to maintain national security? No, but that shouldn't stop us from fulfilling our duty." Mr. Wong also cited the case of Macau, which enacted its own national security law in February 2009.

 

Beijing's reaction to the chief executive's October 2010 announcement was muted. A deputy director of Beijing's liaison office, Li Gang, would only say that Mr. Tsang was right not to introduce a national security law. Mr. Li said he had nothing to add on the issue.

 

The issue came to the fore again in May 2011, when a Hong Kong member of the standing committee of the National People's Congress, Rita Fan, highlighted the need for the next chief executive – who will start his or her term in July 2012 – to enact national security legislation. Mrs. Fan – who has been tipped as a potential candidate for the top post – cited the Macau example. She said: "It's the (Hong Kong) government's responsibility to enact Article 23 that covers national security legislation.... I think the next government cannot avoid tackling this issue." She acknowledged that many Hong Kong people were worried about enactment of the legislation, but added – using a Chinese idiom to describe woes – that it was "neither a flood nor a ferocious beast".

 

Analysts questioned why Mrs. Fan – as a potential candidate who is considered to be close to Beijing – had raised the issue. Some suggested that she may be trying to exert pressure on the two potential frontrunners in the race to become the next chief executive – the chief secretary Henry Tang and the convenor of the Executive Council Leung Chun-ying.

 

Mrs. Fan's comments started a debate on the issue. National People's Congress delegate Peter Wong suggested – without elaborating – that there had already been many subversive utterances, meaning that Hong Kong should move quickly to legislate on Article 23. Others took a more cautious approach. Legislator Regina Ip, who as security secretary was responsible for the national security legislation in 2003, expressed the view that Hong Kong should first address more pressing problems, including housing and poverty. Mrs. Ip has also been tipped as a potential chief executive candidate.

 

The visiting director of Beijing's Hong Kong and Macau Affairs Office, Wang Guangya, also waded into the controversy, although he muddied the waters somewhat. He said it was up to the next Hong Kong administration to decide whether it was time to enact national security legislation. He added: "Hong Kong should introduce a national security law under Article 23 of the Basic Law. It will be introduced when everyone reaches a consensus."

 

The HKJA has taken a consistent position that there is no pressing need to enact national security legislation and existing laws are sufficient in prohibiting acts contained in Article 23 of the Basic Law. But if the government does decide to proceed with such legislation, then it must contain safeguards that are robust enough to protect freedom of expression and press freedom. The minimum standards are the adoption of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, as well as proper public interest and prior publication defences.

 

SECTION 2
Government lurks behind frosted glass

While there are cases in which the central government in Beijing poses threats to freedom of expression in Hong Kong – whether real or self-induced in Hong Kong – the SAR government too at times limits this freedom – thereby going against its claim that it is an open government which respects press freedom.

The ability of the media to access government information is a significant example of this. For example, a project to digitalise the police communications system in 2004 led to a dramatic change in the way that media organisations follow spot news, with the force sending out only bare details of stories to the media. The Fire Services Department will also soon digitalise its communications system – meaning that the media will probably face similar problems to those it faced with the police information system.

The government has also been abusing the sys tem of off-the-record briefings, which leads to manipulation of the media, as well as information which should be released in the public interest. Further, the lack of a freedom of information law severely limits the information available to the media, and the lack of archive legislation means the government may not be as rigorous as it should be in retaining and storing information and documents.

It is no wonder therefore that the media believes that the government is less open than the pre-1997 colonial government. Should the government remain sluggish in making itself more open and transparent, one of Hong Kong's four pillars of success – the free flow of information – will be put at serious risk.

POLICE RELEASE INFORMATION IN DRIBS AND DRABS

Spot news information is a public asset which may contain important information in the public interest. However, police dissemination to the media changed in December 2004, when the police switched from an analogue to a digital communications system. Before the change, journalists were able to listen in to the police communications system – and react accordingly if they heard about an interesting crime story.

With the launch of the digital system, the information arm of the police, the Police Public Relations Branch (PPRB), issued only short announcements about incidents through the Government Information Services system. It would categorise an incident as, for example, "robbery", "snatching" or "request for police investigation." The location and time would be given, but nothing more.

According to a study conducted by the Hong Kong Journalists Association (HKJA) between July and December 2009, the PPRB released far fewer alerts than it had promised to do. The HKJA found that the police disseminated on average just 2.7 spot news messages each day during that six-month period, accounting for a mere 1.27 percent of the total crimes reported to the police. And no items were sent out on nine days. More unacceptable was the withholding of spot news information in cases involving senior police staff.

 

The HKJA also found that the information invariably came in too late for reporters to be sent to the scene for coverage. The study found that less than 20 percent of the information was disseminated within twenty minutes, as the police had promised. A total of 13 percent of information was released after one hour – and there were some cases in which information was released four hours after callers informed the police.

The paucity and the severe delay in news dissemination prompted the HKJA to organise a meeting between media representatives and the PPRB in October 2010, to work out ways to improve the system. The HKJA called for simultaneous access to spot news information after personal data had been deleted for privacy reasons. The police response was far from satisfactory. It agreed to issue releases in English only from November, in the hope of saving time in translation. The HKJA expressed concern that the police may return to its old secretive and sluggish way of disseminating information after the public lowered its guard.

This scenario was reflected in follow-up research by the HKJA. The number of alerts increased sharply – from an average of 9.55 a day in October 2010, the month after the HKJA published its findings, to 17.97 in the following month. However, the average daily number dropped to 13.07 in April 2011. During that month, the number of alerts ranged from five to 21. Irrespective of whether the police referred to absolute or average numbers, the figure was still far below the number pledged by the police when the new digital communication system was launched – of between 60 and 100 releases a day.

In terms of speed, there was little improvement – from an average of 38 minutes and 33 seconds in October to 32 minutes and five seconds in November. The figure was almost the same in April 2011 – at an average of 32 minutes. The fact is there is still a sizeable gap from the 20-minute rule pledged by the police when it launched its new system.

The police took more than 20 minutes to release information in nearly 54 percent of cases in April 2011. In the four worst cases, journalists had to wait between two and three hours 39 minutes to receive alerts. The HKJA is disappointed and puzzled over the failure by the police to release information in a timely manner – even if it does not involve criminal activities.

Moreover, the over-simplified messages always leave journalists confused, making it difficult for them to decide on the newsworthiness of any incident. But the police maintain that it is not a priority for them to sort out the gap between speed and comprehensiveness of news dissemination.

While the police insisted they respected press freedom, they stressed that they had to consider the government's code on access to information in considering dissemination of information to the media. They pledged to continue facilitating the media as far as possible by providing timely information, as long as it did not hamper police operations, infringe personal privacy or affect court proceedings.

The next battle will come with the digitalisation – in July 2011 at the earliest – of the Fire services Department's communication system. The HKJA held a meeting with representatives in December 2010. There was meant to be a follow-up session in March 2011, but this has been put on hold. It appears that one stumbling block in talks is the definition of personal information.

The HKJA believes that the problem can be resolved easily once the police and the Fire Services Department no longer act as "gatekeepers" in the release of spot news information. The HKJA strongly recommends that they revamp their information dissemination mechanism by allowing journalists free access to spot news information after the caller's personal data has been deleted. This could alleviate fears that they release information in a selective manner.

GOVERNMENT HIDES BEHIND OFF-RECORD BRIEFINGS

There is a long history of governments using background briefings, whether in Hong Kong or overseas. Government officials ask that their names and titles not be used or they are not directly quoted in news reports, in exchange for in-depth discussion with writers and journalists on government policies. It is generally understood that the use of background briefings is just one of many ways for a government to deliver information.

Editorial writers and editors were usually the targets of background briefings on controversial policies during the colonial administration and in the early years of the administration of the first post-handover chief executive, Tung Chee-hwa. Briefing rules could usually be discussed between officials and media representatives.

However, the media has found that in recent years there has been an increasing abuse of background briefings by government officials, to the extent that the public's right to know about government policies is being infringed. The briefings also allow government officials to avoid responsibility for their words by hiding behind the veil of "sources".

According to research conducted by the HKJA during a three-month period from March to May 2010, a total of 2,784 articles quoting "sources" were found in Chinese-language newspapers, and 351 in English-language newspapers in Hong Kong. This means an average of 29.8 and 3.8 articles per day for each category. The HKJA also found that at least 12 background briefings were conducted by different government bureaus and departments during that period – making an average of one background briefing per week.

The ratio of government press conferences to background briefings during the same period was six to four. The government held 22 press conferences in that time, or an average of 1.8 press conferences per week. They included trivial subjects such as the Hong Kong Observatory's annual report and announcements on musical shows and drama performances by the Leisure and Cultural Services Department. There were only a few press conferences on significant issues, such as the government's political reform package and a report on a fatal building collapse in Ma Tau Wai.

The HKJA also found that briefings were arranged in a very tricky way. Information officers would inform reporters about a briefing two to three hours in advance. They usually started late in the afternoon and ended in the evening. This ensured that reporters had almost no time to seek reaction from other parties, as they had to meet writing deadlines. The HKJA also noted that briefings could be held on holidays, which also makes it difficult for reporters to seek alternative views.

The HKJA discussed the question of off-the-record briefings with representatives of the Information Ser vices Department, including its director, Michael Wong. The director responded to the HKJA's research by stating that press conferences and background briefings were two different types of media activities held for different purposes. He said that officials used various means to inform the public about government policies. However, he agreed that press conferences would usually be held to announce policies and to explain them to the public in a comprehensive manner.

A SLIGHT IMPROVEMENT – BUT NOT MUCH BETTER

Following the meeting, the HKJA observed that the government did organize more press conferences. However, background briefings still flourished. For example, there were seven briefings from September to December 2010 and 20 press conferences during the same period. Most of the background briefings were on controversial topics and had enormous public implications. They focussed, for example, on second stage public consultation on healthcare reform, cross-harbour tunnel charges, new measures against property speculation, the review of the Personal Data (Privacy) Ordinance and a review of the law governing drug-driving.

In the following three months, starting in late December 2011, the government reverted to its old ways. While the number of press conferences held during that period remained the same, the number of background briefings jumped back to nine. These briefings covered subjects including a government proposal to ban idling car engines, measures to revitalize the secondary market for Home Ownership Scheme flats and legislative amendments on unfair trade practices.

This practise continued well into 2011. For example, the government organised briefings on a transport allowance for people working across districts, sites for columbarium development, the design of the West Kowloon Cultural District project, a study on an action plan for the Bay Area of the Pearl River Estuary and reference guidelines for the statutory minimum wage. Relevant government officials held brief on-the-record standups prior to the more in-depth background briefings. The HKJA found this practice to be unacceptable both in terms of freedom of information and government accountability.

There was one notable off-the-record briefing on February 28th, 2011. Journalists reported that the secretary for transport and housing, Eva Cheng, held a briefing on housing matters. Ms. Cheng's comments on information on the waiting list for public rental housing could be attributed to her. But her comments on the property market and the so-called "My Home Purchase Plan" could only be attributed to "sources".

There was another notable off-the-record briefing on June 16th, 2011.Government officials briefed the media about applications for and distribution methods for a one-off payment of HK$6,000 for every adult permanent resident. This was obviously a matter of great public interest, yet journalists could only quote "a government spokesman".

The government also manipulates the media by inviting journalists to briefings on a selective basis. The electronic media were not invited to a briefing held by the Planning Department on a paper called the "Action Plan for the Bay Area of the Pearl River Estuary". Photography was also banned, but those present could use the name of the source. A government spokesperson explained that the department had called the briefing mainly because some newspaper journalists said they did not fully grasp the content of the action plan, which was causing concern to the public. The HKJA considers this explanation to be absurd, as it makes the assumption that those viewing or listening to the electronic media do not have the right to hear the government's explanation.

The abusive use of background briefings is obvious. As many frontline reporters point out, the government wants to use the media to "test the water" about how the public will react to their policies or strategies. The government might simply deny a media report if the public disapproves of a policy, thereby harming media credibility.

By using background briefings, the government can also manipulate public opinion by influencing news angles in media reports. Worse, the increasing use of such briefings is unhealthy for the collection of public views and holding high-quality discussion, as only piecemeal information is released to the media.

An open, transparent and accountable government should face up squarely to the public and tell them what it is doing and plans to do, instead of hiding in a room to announce its measures in an anonymous way. The HKJA urges the government to cut back on the number of background briefings, and instead hold more press conferences – in particular for new policies – to allow journalists to question officials in an open environment.

STRONG NEED FOR AN ACCESS TO INFORMATION LAW

Another issue that the HKJA has long been campaigning over is access to government information. There have been innumerable examples of the government refusing to disclose information or documents, despite the existence of a non-statutory code on access to information.

In March 2011, the government admitted asking the public if the financial secretary, John Tsang, should quit over problems with the budget. It noted that this was not the first time that its think tank, the Central Policy Unit, had polled people on the performance of top officials. But the government refused to disclose the findings of the polls, saying that to do so would hurt its ability to run future polls.

The South China Morning Post then used the code on access to information to seek the poll's findings. But the government refused to release the findings, saying that it needed "to ensure objectivity of the surveys". It said in a letter to the newspaper that the survey results were not made available to the public so as not to influence the public over their attitudes. It also said such disclosure would prejudice the proper and
efficient conduct of operations of the Central Policy Unit.

The newspaper was not alone in failing to prise information out of the government through its code on access to information, which is not a legally binding document. The government said it had received 30,898 requests for information under the code from the time it came into being in March 1995 up until the end of March 2011. Of these requests, 1,730 were subsequently withdrawn, 1,251 covered cases in which the bureaus or departments concerned did not hold the information sought and 86 requests were still being processed.

The HKJA has long questioned the acceptance rate. It tested the system in late 1997 by sending out 81 requests for documents mentioned or clearly identified in the government's 1997 annual progress report. The acceptance rate was just 43 percent.

Another pertinent fact is that complaints to the Ombudsman are on the rise. There were just five in 2006. This figure rose to 25 in 2008. This increase may well be the reason why the Ombudsman decided to investigate how the code on access to information is working. The Ombudsman was critical of the way that the code was being implemented – although the HKJA regretted the fact that he did not consider the merits of giving individuals a statutory right of access to government information and documents.

A survey conducted by the HKJA in 2007 found that news workers commonly held the view that the government was less open than the one in 1997. This echoed the findings of an earlier survey conducted among HKJA members in January 1998, which found that 69 percent of respondents considered that the government had become less open since the 1997 handover to Chinese rule. They were particularly scathing of the chief executive's office. As m any as 72 percent of respondents called for legislation to replace the administrative code.

The HKJA believes the Hong Kong government has been stalling too long on this vital issue. A freedom of information law is essential to ensure stronger democracy and to promote open and accountable government, which is a stated goal of the government. The HKJA believes that such legislation must set out clear principles on maximum disclosure of documents and information, limited and narrowly drawn exemptions and an effective and independent appeals mechanism, with final recourse to the courts.

It is pointless for the government to trumpet its statistics on the administrative code at a time when many countries are adopting freedom of information laws. The former colonial power, Britain, enacted an access law in the year 2000, while the current power, China, put into effect "The Provisions on the Disclosure of Government Information" in 2007.

We note that the United Nations' Human Rights Committee has been discussing a general comment urging state parties to "enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation." This relates to the implementation of the International Covenant on Civil and Political Rights, which applies to Hong Kong and is enshrined in the Basic Law. If this general comment is adopted, then the Hong Kong government would be failing in its constitutional duty if it did not enact access to information legislation.

ACCESS LAW MEANINGLESS WITHOUT AN ARCHIVE LAW

 

An archive law is another tool for the public to gain access to government information. The government has been dragging its feet on calls for such a law for years. Despite support from lawmakers from different political parties, the government is still reluctant to tackle the issue, which arose from repeated instances of the government not storing records correctly.

In December 2011, the South China Morning Post requested the records of public funds paid to people as compensation for disruption to their fung shui as a result of the construction of two rail lines in the New Territories. Government officials variously said the information had been destroyed, was kept by other departments or was not kept in the first place. The storage or discarding of any official records would be covered by law if such an archive ordinance existed.

CONTROVERSY OVER LAW ENFORCEMENT WIRETAPS

Apart from holding back information that should otherwise be in the public domain, officials have shown themselves to be under-sensitive to the protection of journalistic material, which may threaten the identities of anonymous sources. This came after it emerged that law enforcement agencies had intercepted calls to journalists as part of their spying activities – the first time this had been done since an interception law came into effect in 2006. The revelation was made in the annual report compiled by the Commissioner on Interception of Communications and Surveillance, Mr. Justice Woo Kwok-hing.

The report noted that one of two such cases involved the interception of a call made to an editor by a person who was suspected of being involved in a serious crime involving a member of a media organisation. Mr. Justice Woo noted: "In the first case, a set of restrictive conditions was imposed on obtaining journalistic material, in line with the one for obtaining material subject to legal professional privilege.... In the second case, although no restrictive conditions were imposed at the time of authorisation, the judge revoked the authorisation after receiving reports that journalistic materials were involved." Nevertheless, the HKJA believes that a judge should not in any circumstances authorise such action.

The commissioner's report also highlighted other problems, including authorized intercepts that did not meet requirements, continued intercepts after the termination of warrants, inter-departmental sharing of intercept material and the unauthorized use of listening devices. Mr. Justice Woo described the irregularities as "inadvertent" and "careless mistakes" amounting to negligence. The Secretary for Security Ambrose Lee later told a meeting of the Legislative Council's security panel that the officers involved had been disciplined, while those authorised to undertake covert surveillance had been informed of the legal boundaries involved in their work.

The Independent Commission Against Corruption, the police, and the Customs and Excise and Immigration departments are allowed to apply to carry out wiretaps and other forms of surveillance if they can prove probable cause. Applications require approval from a panel of Court of First Instance judges. Approval may be given if serious crime is involved.

The government plans to review the ordinance later in 2011. The HKJA has been calling for the government to strengthen protection of journalistic material. In particular, it wants the government either to exclude confidential material from the scope of the bill or impose higher thresholds before an intercept is permitted, for example in cases where there is a grave threat to Hong Kong's security or where there is an imminent threat to lives.

The HKJA also says the government should ensure that the law cannot be used in any way – directly or indirectly – to obtain information that may enable the authorities to determine a journalist's source of information. The HKJA's chairperson, Mak Yin-ting, says: "If journalistic materials are allowed to be intercepted by law enforcement agencies, it will make whistleblowers afraid to reveal malpractices by the establishment."

SECTION 3
The rise of the new media

Monitoring the power centres within society has long been the goal pursued relentlessly by the mass media and journalists. The profession's unique role as the fourth estate grants it special rights to question and gain access to first-hand information provided by the power centres.

The entry barrier for the mass media is considered high as it requires huge capital investment. The few media organizations that can come into being or survive can reach a sizeable audience. As the internet and information technology advance, this pattern of mass communication has been turned upside down. The entry barrier is lowered considerably. Anyone who wishes to express their own opinion or publicise material, be it through audio, text or pictures, can do so by setting up a website, a blog or a Twitter-style site. Everyone becomes a journalist, and everyone operates their own media.

T he lowering of the entry barrier can be a double-edged sword. There is no effective check against the credibility of the information published in the new media. On the other hand, it can also be regarded as a golden opportunity for civil society. Minority opinions and concerns can be expressed freely at low cost on the Internet.

There are various types of new media outlets in Hong Kong. There is, for example, inmediahk.net, which is a citizen media website specialising in social issues, current affairs commentaries and citizen reportage. There are also internet radio stations, such as Hong Kong Reporter, Green Radio, FM 101 and the pirate station Citizens Radio, which often tackle issues in a far more critical fashion than the mainstream media – and many of which have a decidedly political orientation.

Many new media outlets which are devoted to public issues do not run in a capitalist or profit-making model. Circulation and revenue from advertising are not their main concern. Their editorials therefore do not adhere to traditional news values. They can set their own agenda. In this sense, they do not have to give in to patriotic, business or government pressure in order to get close to insider information. The new media therefore performs a complementary role in monitoring the government. This chapter attempts to illustrate how the new media contribute in this regard.

CASE ONE: MEI FOO SUN CHUEN

Residents of the middle-class housing estate, Mei Foo Sun Chuen, rallied against a high-rise project by lying in the street outside the construction site at phase 8 on April 3rd, 2011. They were concerned that the new development – once built – would obstruct their views and stifle ventilation. Their grievances were taken up by inmediahk, which revealed that the case was rooted deeply in a problematic urban planning policy that affects the whole of Hong Kong. It also highlighted the maneouvres among developers and the government.

Initial news coverage by the mainstream media on the Mei Foo dispute can be dated back to August 2nd, 2010, when residents took to the streets. On September 12th, Hong Kong Connection, a documentary TV programme produced by Radio Television Hong Kong (RTHK), provided an in-depth analysis of the issue. It pointed out that the Mei Foo case was due to the problem of residual plot ratio that the existing policy failed to address. The Mei Foo case, therefore, is not isolated. However, except for the above TV programme and a report in Ming Pao on November 24th, the Mei Foo case was not in the media's spotlight until residents blocked the road to the construction site on March 4th, 2011.

Inmediahk published a five-part investigative report on this issue from March 30th, 2011. However, the focus of these reports was not the rally itself. Instead, it examined numerous documents and archives belonging to the government and developers, with the oldest dating back 30 years. This series of investigative reports chronicled how developers had exploited the residual plot ratio and the loophole in urban planning.

The report traced the building plans of the private estate in 1973 and other related documents. In 1999, Mobil Oil Hong Kong (later ExxonMobil), the owner of the LPG storage plant at phase 8, moved the plant to another site it owned, while at the same time rejecting a land swap proposed by the government. Later, it sold the original site and the adjacent roads to Billion Star Development. No premium was charged for the sale of the original LPG storage plant site. While the site's co-owners, ExxonMobil and New World Development, earned HK$100 million in net profit by selling the land, Billion Star would be able to build homes on the site at a much lower cost because there was "residual plot ratio" in Mei Foo phase 8. This became possible because the maximum plot ratio of about 7.4 was not fully used, leaving about 120,000 square feet of floor space unbuilt. Another report by inmediahk found that two other Mei Foo sites had unused potential for development.

Although there has been speculation that that there are close links between New World Development and Billion Star, no substantial evidence was found. Inmediahk spent much time and effort carrying out company searches. It found that a few board members of a company acquired by Billion Star had close links with New World Development. The acquisition took place when the high-rise project was started at phase 8 in 2009. Although there is no concrete evidence that New World Development is the mastermind behind the project, the citizen journalist involved in the search deserves applause for engaging in such a complicated task.

The mainstream media extensively quoted the investigative report. On March 30th, the Hong Kong Economic Times quoted this report to provide background information on the dispute. On April 7th, Ming Pao, the Hong Kong Economic Journal and the South China Morning Post (SCMP) reported that two more Mei Foo sites had residual plot ratio – one day after inmediahk released its report. On May 11th, Ming Pao quoted inmediahk's article on the alleged links between New World Development and Billion Star Development.

It is generally held that the new media in Hong Kong are invariably led by social activists, which makes them less objective. Investigative reporting requires access to official documents and a large amount of technical knowledge. In this respect, it is generally believed that mainstream media perform better. However, the investigative series on Mei Foo demonstrates that the new media can produce work of a high quality that can scoop the mainstream media.

CASE TWO: TAI LONG SAI WAN

On July 16th, 2010, when the SCMP published a scoop about plans by businessman Simon Lo Lin-shing to build a private lodge at pristine Tai Long Sai Wan on the eastern fringes of the Sai Kung peninsula, no one could imagine it would take less than a month to block the project. This happened after the mainstream media and netizens joined hands in opposing the development.

In less than a day, the SCMP scoop was translated into Chinese by a user of inmediahk and widely shared by other netizens on other social networks. A Facebook group entitled "condemn Lo Lin-shing" was set up and users planned a protest against the Agriculture, Fisheries and Conservation Department a week later. A netizen went to shoot a video of the construction site, which was later shared widely. Users of the Facebook group also organised a field trip to Sai Wan on July 18th, joined by a reporting team from Now TV. On the same day, more than 30,000 people joined the Facebook group.
Intriguingly, no Chinese-language newspaper followed up the issue on July 17th and 18th. It was only on July 19th that four newspapers followed it up. On July 20th, the issue became the centre of discussion. One netizen pointed out on Facebook that the construction site was part of an archaeological site, which was protected by the government. Shortly afterwards, Mr. Lo suspended excavation work. On August 6th, the Draft Tai Long Sai Wan Development Permission Area Plan was gazetted, effectively putting an end to the businessman's plans.

 

The mainstream media focussed on the number of people joining the Facebook group, which reached more than 60,000. Unlike other social movements, the Tai Long Sai Wan campaign was not led by experienced social activists. Media organisations were unable to identify any particular spokesperson for the Facebook group, which consisted of netizens in love with the beauty and serenity of the area.

A later report by Ming Pao revealed that the Agriculture, Fisheries and Conservation Department had received complaints from the public before work started at the site, and referred the case to the Lands Department. But the latter did not inform the Antiquities and Monuments Office and did not stop bulldozers from entering the site. The cost of the government's negligence in protecting the city's most valuable natural heritage could have been extremely high. The success of the Tai Long Sai Wan campaign is encouraging as it demonstrated how the response of netizens can help bring about change.

CAMPAIGNING ON BEHALF OF THE VOICELESS

According to a survey conducted by the University of Hong Kong's Public Opinion Programme in April 2011, the net satisfaction rate of the Internet surpassed that of newspapers by five percentage points. Between 2000 and 2011, the percentage of respondents identifying the Internet as their main source of news increased from 5.7% to 15.2%. While the mainstream media face problems such as patriotic pressure and obstruction of government information, the new media are playing an increasingly important role in monitoring the government. While mainstream journalists visit a few websites every day to check if there are fresh news ideas, individual netizens and independent media actively monitor the government by writing their own news reports and organising social movements.

Some of the reports are of a very high quality surpassing those of mainstream media. As in the case of the Mei Foo dispute, mainstream journalists often followed investigative reports published by the new media. At the same time, the new media allow coverage of issues that may concern few people. For instance, after the protests against the high-speed rail link from Hong Kong to Guangzhou, the mainstream media did not report much on what happened to residents of Choi Yuen village, who had to make way for the project. The new media provided a platform for them – the voiceless – to speak.

However, the new media in Hong Kong still face some difficulties. When they report on social movements, citizen reporters are often, themselves, social activists. This may undermine their objectivity in the eyes of readers. While this may hold back their development, it is certain that they will not disappear from the media scene. They are more likely to learn from past experience – and become ever more relevant in complementing the efforts of mainstream journalists.

SECTION 4
Further Uncertainty at RTHK

The government pressed ahead – in the year under review – with its plans to reform Radio Television Hong Kong (RTHK) as a government department. It finalised a charter for the broadcaster and appointed an 11-member board of advisers. It also announced plans for RTHK to run its own television channel and for the introduction of digital audio broadcasting. Less progress was made over how RTHK should run community broadcasting services. There was further uncertainty when the director of broadcasting, Franklin Wong, announced that he would not seek a further term of office.

RTHK staff and non-governmental organisations, including the HKJA, had expressed disappointment when the government announced – in September 2009 – that the station would remain a government department, instead of being hived off from the government to become a truly independent public service broadcaster. T his followed a 25-year period when efforts were made to corporatise RTHK. The station came very close to this happening in the early 1990s, but China objected to the move through Sino-British diplomatic channels.

In August 2010, the government announced the appointment of a board of advisers and the promulgation of RTHK's Charter, which replaced a framework agreement between the government and RTHK. The board of advisers is headed by a former president of the Law Society, Lester Huang. There are nine other non-official members, plus RTHK's head – the director of broadcasting. The nine other non-officials include a former editor of the South China Morning Post, C.K. Lau, and May Fung, who is described by the government as a media veteran. There are also several people who are relatively unknown, including consumer advocate Jolly Wong, architect Marisa Yiu and company director Raj Sital Motwani.

Critics have expressed fears that the board of advisers will become more than just an advisory body, and whether over time it would develop a de facto executi ve role, in particular over programme and editorial policy. One of its tasks – according to RTHK's Charter – is to advise the director of broadcasting "on all matters pertaining to editorial principles, programming standards and quality of RTHK programming." It will also receive reports on complaints against editorial principles, programming standards and quality of RTHK programming.

The HKJA criticised the composition of the board, noting that the appointees do not have deep experience in public service broadcasting. The chairperson of the RTHK Programme Staff Union, Janet Mak, expressed fear that the board could become a "backstage ruler".

However, the board's chairman, Lester Huang, denied that the committee would exercise undue influence over RTHK. He said: "It is not appropriate to describe the board as a backstage ruler. We don't have a role as a ruler. We only cooperate with the director of broadcasting." He also said he would not have a problem with RTHK programmes as long as they were fair and factual and did not breach any laws.

However, Ms. Mak expressed regret that the board's meetings would not be open to the public, even though the agenda and minutes of meetings would be available on RTHK's website. She said: "If Lester Huang says he is not a backstage ruler and will not interfere with editorial independence, why is there a need to conduct proceedings behind closed doors?"

The board of advisers has been briefed on the operations of the broadcaster. It has also been asked for preliminary views on the implementation of community broadcasting. The board also formally decided against allowing representatives of the RTHK Programme Staff Union and the non-governmental group, the Save RTHK Campaign, to attend its meetings.

RTHK CHARTER RAISES QUESTIONS

The most important document for RTHK is its charter, which was signed in August 2010 by the chief secretary for administration, Henry Tang, the then director of broadcasting, Franklin Wong, and the chairman of the Broadcasting Authority, Ambrose Ho. The then secretary for commerce and economic development, Rita Lau, who had policy responsibility for RTHK, said: "The signing of the charter lays a solid foundation for RTHK to enhance its services and fulfill its mission as a public service broadcaster, and proceed with the implementation of various new services including
digital audio broadcasting, digital terrestrial television and community involvement in broadcasting."

The charter states that RTHK has five public purposes – sustaining citizenship and civil society; providing an open platform for the free exchange of views without fear or favour; encouraging social inclusion and pluralism; promoting education and learning; and stimulating creativity and excellence to enrich the multi-cultural life of Hong Kong people. The charter elaborates that sustaining citizenship includes the need to promote understanding of the concept of "One Country Two Systems" and its
implementation in Hong Kong, and engendering a sense of citizenship and national identity through programmes that contribute to the understanding of the community and the nation.

Some of these public purposes had been markedly different – and potentially threatening – in an initial draft. One stated that RTHK should foster social harmony – a concept used as a political tool on the mainland to ensure that everyone unites behind the Communist Party's goals for the country. Further, the government failed to include a proposal by the RTHK Programme Staff Union that the broadcaster's public purposes should incorporate the concept of monitoring the administration.

The charter also states that "RTHK is editorially independent" and that the director of broadcasting, as editor-in-chief, "is responsible for making the final editorial decisions in RTHK and is accountable for editorial decisions taken by RTHK programme producers." The charter further states that the board of advisers "is advisory in nature. It has no executive power. The ultimate editorial responsibility for RTHK rests with the Director." But at the same time, the charter states that the director must explain any case in which he disagrees with the board's advice.

The HKJA considered that the changes in the Charter were not substantial. It reiterated that the government should delink the broadcaster from the government, so it can become a genuine public service broadcaster. This, it added, should be done in accor dance with a resolution adopted by UNESCO at the 27th session of its General Conference in 1993. The resolution is aimed at encouraging "the development of journalistically independent public service broadcasting in place of existing State-controlled broadcasting structures."

RTHK GIVEN GO-AHEAD FOR NEW SERVICES

In December 2010, the government announced what it called "a comprehensive package" to support RTHK's development as a public service broadcaster. This included additional money to support new services and a renewed recruitment drive. The new services include expansion of high-definition television programme production from about 50 hours to no less than 200 hours per year from the 2011/12 financial year. RTHK will also launch five digital audio broadcasting (DAB) channels in late 2011. Four will be for existing AM radio services. The fifth will be for the mainland Chinese broadcaster, China National Radio.

On funding, the government pledged HK$45 million for a three-year trial in community broadcasting. This is a new mandate given to RTHK. It is controversial because a pro-democracy radio station, Citizens Radio, has been demanding a licence to broadcast its material. At the moment, it broadcasts without a licence and faces periodic raids by the government. The authorities have rejected its application for a licence – and have instead opened up the possibility of community groups offering their own broadcasts through RTHK and what is known as the Community Broadcasting Involvement Fund, which RTHK will run. RTHK's board of advisers has been consulted on this issue – although it is uncertain who will have legal liability for the programmes – RTHK or the programme providers.

As a symbolic indicator of RTHK's status as a government department, the administration announced that the hiring of civil servants would resume – for the first time for several years. RTHK plans to fill 80 civil service vacancies – half of them at junior levels. Senior posts will be filled only if existing civil service staff cannot fill them.

The RTHK Programme Staff Union expressed concern that experienced non-civil service staff could lose their jobs once the civil service recruitment exercise moves ahead, as additional posts will not be created. But senior managers expect existing non-civil service staff to have an advantage in applying for civil service posts.

CONTROVERSY OVER SATIRICAL PROGRAMME

At the heart of worries over RTHK's future has been the fear that politicians close to Beijing and some in government would like to see RTHK become more sympathetic to the Hong Kong and Beijing governments. It is in this context that controversy arose in late 2010 over the future of a satirical programme called Headliner which often pokes fun at the government.

There were reports that the then director of broadcasting, Franklin Wong, wanted to replace the programme's hosts, Ng Chi-sum and Tsang Chi-ho, who have been accused of being too critical of the government. The two hosts had their freelance contracts renewed – although this is always done on a short-term basis. But Mr. Wong's initial refusal to comment on the issue failed to dampen suggestions that he wanted changes. Later, in February 2011, he clarified that he never considered replacing them; rather he was looking at ways to improve the programme, which consists of satire, comedy and songs. He said he had suggested that the programme producers hire a scriptwriter specialising in satire.

The programme has come under fire several times, most notably in October 2002, when it compared the then unpopular chief executive, Tung Chee-hwa, with the former Taliban government in Afghanistan. Mr. Tung hit back, saying the programme was "in bad taste". The Broadcasting Authority issued an "advice" to RTHK – the lowest form of censure given to a radio or television station. The authority said Headliner, which it categorised as a current affairs programme, had failed to strike a fair balance between different viewpoints on Mr. Tung's policy address. RTHK disagreed, saying Headliner was clearly satirical in nature and was not a current affairs programme.

RTHK CAUSES CONTROVERSY OVER SZETO FUNERAL

RTHK also caused controversy in late January 2011 when it dropped plans to provide a live webcast of the memorial service and funeral for the pro-democracy campaigner Szeto Wah, who died earlier that month. The RTHK Programme Staff Union wrote to the broadcaster's then director, Franklin Wong, asking why the webcast had been dropped. Mr. Wong said the station valued the news concerning Mr. Szeto's death and had carried comprehensive news and television coverage on the issue. He also noted that RTHK's website provided a hyperlink to the memorial service and funeral through the website set up by the funeral organisers.

The chairperson of the RTHK staff union, Janet Mak, said the cancellation of the live webcast added to doubts about the independence of the broadcaster. She said RTHK's leadership had put the public broadcaster's "editorial independence into limbo". She added that the cancellation was against the station's usual practice, citing a live webcast of the 2009 East Asian Games torch relay, even though the organisers had a webcast on their own website.

A day later, the acting director of broadcasting, Gordon Leung, denied that the decision was made under government pressure. He said: "This is an editorial decision by RTHK itself, no one else has influence on anyone." He also noted that the decision was a "collective" one. Ms. Mak said in reply that if it really was a collective decision, then the whole top RTHK management would "really have to look into the question of their judgement and whether they are under pressure".

DIRECTOR OF BROADCASTING STEPS DOWN

In November 2010, RTHK's director of broadcasting, Franklin Wong, announced that he would step down when his contract expires in February 2011. Mr. Wong cited health reasons, saying he had recently undergone coronary bypass surgery. There had been widespread expectations that the government wanted Mr. Wong to serve another two-and-a-half-year term as director.

The government announced that it would launch an open recruitment for a new director – a move opposed by the RTHK Programme Staff Union. Its chairperson, Janet Mak, said RTHK's new director should be chosen through internal promotion. She said: "The director of broadcasting is the chief editor of RTHK. He must be someone who shares the organisational culture of RTHK, who can stand firm against any test of editorial independence, and who is very clear on our mission."

Mr. Wong had a tense relationship with staff during his term as director. He faced sessions with staff where he was peppered with questions about his commitment to editorial independence, including his attitude towards the hosts of the Headliner programme. He was also criticised for shunning a non-governmental organisation, the Save RTHK Campaign, which campaigns for the broadcaster's separation from the government and the strengthening of its editorial independence. The campaign has held several protests outside RTHK's headquarters.

Several academics questioned whether the government wanted to hire someone who would be a true advocate for RTHK and its editorial independence. An assistant professor in Baptist University's department of journalism, To Yiu-ming, said: "By opting out of internal promotion, the government is clearly indicating that it does not want someone from RTHK – with a mission to promote public service broadcasting – to lead the broadcaster."

It emerged that 20 candidates were in the running to become the new director. They included the serving assistant director of broadcasting, Tai Keen-man. Media reports said the frontrunner for the job is Timothy Jim, who has worked for the South China Morning Post and ATV. He is currently the managing director of overseas operations for the Sing Tao newspaper, which is considered to be close to the government. At time of publication, there had been no announcement on the new director.

 

SECTION 5
MEDIA OWNERSHIP CHANGES AFFECT TV STATIONS

The year under review has seen a significant change in the ownership of Hong Kong's biggest free-to-air TV network, Television Broadcasts (TVB). There were also continuing bitter ownership disputes at the other free-to-air broadcaster, Asia Television (ATV), and reports that the government was about to open up the free-to-air TV market by issuing up to three new licences. But there was little apparent progress in handling a complaint from ATV alleging that TVB had abused its dominant position. These issues were all linked to the bigger issue of media diversity, which is essential for freedom of expression to flourish.

In March 2011, an investor group led by a local dealmaker, Charles Chan Kwok-keung, paid HK$6.26 billion for Shaw Brothers' 26% stake in TVB. Charles Chan provided more than half of the funds needed to acquire the stake. The man behind Shaw Brothers is Sir Run Run Shaw – who at the age of 103 had for several years wanted to sell his stake.

After obtaining the Broadcasting Authority's approval for the change in shareholding, TVB announced the appointment of three new non-executive directors to represent the investor group. They are Mr. Chan himself – the chairman of ITC Corporation; Taiwanese information technology entrepreneur Cher Wang Hsiueh-hong; and the chief executive of United States-based Providence Equity Partners, Jonathan Nelson. Wang is the daughter of the late Taiwan plastics tycoon Wang Yung-ching. She is one of Taiwan's richest tycoons with an estimated net worth of US$5.5 billion.

TVB – the leading local television station for more than 40 years – said the relevant experience and background of the new investors would not only help the company, but benefit the well-being of the media industry in Hong Kong as a whole.

However, it remains to be seen whether the acquisition is purely a commercial decision or whether Charles Chan, who is known to have a good relationship with business tycoon Li Ka-shing, had other political motives in mind in acquiring the TVB stake. Mr. Li's Cheung Kong Holdings denied any involvement in the deal.

In 2000, Charles Chan was behind a takeover of one of Hong Kong's oldest Chinese-language newspapers, Sing Pao. He sold his stake in the publication within two years.

Some pro-democracy legislators expressed concern over the source of the capital for the TVB acquisition. The Democratic Party's Lee Wing-tat said the consortium may seek to influence the broadcaster's editorial independence, if the funds come from either Hong Kong property developers or the Chinese authorities.

Another Democratic Party legislator, Emily Lau, was also worried that the shareholding change may affect TVB's editorial independence and news production. She called on members of the public to keep an eye on the quality of its programmes and news productions.

When the deal was first announced in January 2011, the chairperson of the Hong Kong Journalists Association, Mak Yin-ting, said: "We are concerned with TVB's future. Its possible changes will take place gradually... When ATV was acquired by Taiwan and with mainland capital, they also said there wouldn't be changes to the programmes, but the news programmes are clearly more and more pro-Beijing."

The HKJA's 2010 annual report also raised concerns over the news coverage of the two local free-to-air operators, TVB and ATV – and the need for greater competition within the TV sector. The report noted: "The calls for greater diversity have also been prompted by a growing feeling that the existing operators are offering far from critical news coverage."

The TVB acquisition was completed on March 31, 2011. The Broadcasting Authority announced at the same time that it had approved the application for the change in shareholding structure. The authority said its approval was subject to the conditions that TVB shall continue to comply with all the relevant regulatory requirements applicable to it and that after the shareholding change, TVB and Charles Chan shall be respectively bound by the statements, representations, assurances and undertakings made in their application.

The authority also said that it was satisfied that TVB would continue to comply with the regulatory requirements under the Broadcasting Ordinance following the acquisition, and was convinced that the change would not affect TVB's commitment to invest HK$6.3 billion between 2010 and 2015 as part of the government's mid-term review of its licence.

There had been previous reports about possible takeovers of TVB. The son of the owner of Henderson Land, Peter Lee, confirmed that he examined a possible takeover. The second largest media group in mainland China, Shanghai Media Group, was also mentioned as a possible buyer. The group has had a long relationship with TVB – and has entered a joint venture agreement with the broadcaster to produce dramas.

ATV SHAREHOLDERS CONTINUE TO FIGHT

The ownership of Asia Television (ATV) continues to be a controversial issue in the media industry. The tussle between the broadcaster's major shareholders – Payson and Johnson Cha, Tsai Eng-meng and Wang Zheng (also known as Wong Ching) – took a new twist at the end of June 2010, when the Broadcasting Authority received an application from ATV for changes to its shareholding structure.

Earlier that month, the ATV board had endorsed a proposal to implement a share transfer from the mainland property tycoon, Wang Zheng, to his investment partner and relative, Wong Ben-koon, who chairs the listed company, Prosperity International Holdings. Wang Zheng is a member of the Chinese People's Political Consultative Conference.

The infighting intensified in mid-July when chief executive Nancy Hu, who is backed by another major shareholder, Taiwanese tycoon Tsai Eng-meng, was suspended. Tsai threatened legal action in what he said was a breach of a directors' agreement. He called the suspension shocking and ridiculous.

Wang Zheng, who was battling for control of ATV, revealed in early August that he had injected more than HK$200 million into the troubled broadcaster.

In September 2010, the Broadcasting Authority announced that it had approved ATV's application for a change in shareholding and ownership structure. However, the authority's approval for Prosperity International Holdings' chairman Wong Ben-koon to acquire 52.4 per cent of voting shares in ATV left Tsai Eng-meng – who was unaware of the deal – out in the cold.

After Wong's share acquisition, Tsai, who owns 49 per cent of the voting shares of Antenna, a company he co-owns with the brothers Payson and Johnson Cha, will have little say in the broadcaster.

Tsai's camp said it strongly objected to the transaction as no written approval had been obtained from the board. It said the board had not been informed about the application for a shareholding structure change or Wang Zheng's investment plans.

Despite the takeover, the long-standing legal battle between Tsai and the two Cha brothers has not come to an end. They chose to pursue mediation to settle their dispute, but these efforts have apparently not worked.

In March 2011, Tsai Eng-meng handed in a mediation report to the High Court – almost three months after he and the Cha brothers had agreed to pursue mediation to settle their two lawsuits. After receiving the report, master Justin Ko suggested that the two parties should consolidate their lawsuits. The case was adjourned until July 18 2011. There are two lawsuits – involving the issue of convertible bonds which can be exchanged for ATV shares and an injunction seeking to prevent the Cha brothers from selling their stakes to Wang Zheng.

The struggling broadcaster faced another legal challenge in April 2011. One of its directors, Kevin Tsai, who is the son of Tsai Eng-meng, sought a court order to force the station and its top management to surrender records and documents concerning the company's operations that are being withheld from its board of directors. This came a few days after another Tsai-appointed director, Rebecca Huang, stormed into ATV's headquarters in an unsuccessful bid to obtain the documents. A hearing has been scheduled for July 7th.

NEW FREE-TO-AIR TV LICENCES YET TO BE GRANTED

In the year under review, three pay-TV operators are still waiting to hear whether they will be granted licences to operate free-to-air television services – in competition with TVB and ATV. They are i-Cable Communications, which operates Hong Kong's major cable network – Cable TV; PCCW, which operates the broadband Now TV network; and City Telecom, which runs a service called Hong Kong Broadband Network. The new licences are expected to be granted in the second half of 2011. There have however been unconfirmed media reports that all three applicants will be granted licences. However, the government is refusing to comment on the reports, saying only that the Broadcasting Authority will submit its recommendations to the Executive Council.

Two of the companies – City Telecom and i-Cable Communications subsidiary Fantastic TV – said at the beginning of a public consultation in July 2010 that they would each invest HK$1 billion in capital and operating expenditure in the first six years of operation. PCCW subsidiary HK Television and Entertainment Company (HKTVE), pledged to invest HK$600 million in three years.

However, the proposed investments lag far behind the commitments made by TVB and ATV in the mid-term review of their licences. TVB has pledged to invest HK$6.3 billion from 2010 to 2015, while ATV says it will spend HK$2.3 billion over the same period.

City Telecom has pledged to offer 12 channels – the highest number among the three applicants. They will include two self-produced channels and 10 channels with content from third parties, in both analogue and digital formats. It says it will increase the number of channels to 20 within three years of launch and to 30 within six years.

Cable TV plans to launch a Cantonese-language service within six months. It says it will feature news, business and finance, entertainment, information, sports, film and children's programmes. An English-language channel will be launched within two years providing documentaries, lifestyle programmes, news, information, and finance and business.

The PCCW subsidiary, HKTVE, said it would initially offer only one Cantonese-language channel. However, a few months later it said it was willing to cooperate in providing bilingual services.

The reaction from the weaker of the existing two free-to-air broadcasters has been strong. Its major shareholder, Wang Zheng, said the city could not afford too many free-to-air operators. He said there would be chaos if too many licences were issued. ATV also complained that the newcomers would not have to invest so much money in their services. For its part, TVB said new stations would make it harder to compete for advertising and production and human resources.

The government later revealed that TVB and ATV had raised some concerns, including suggestions that any new licensees should be subject to the same licence conditions as they are and that new licences should not be granted before the expiry of TVB and ATV's current licences in 2015. The concerns were raised in submissions sent to the Broadcasting Authority during a public consultation exercise on the question of new licensees. It ran from July to September 2010, and resulted in the authority receiving a total of 256 submissions.

TVB DOMINANCE PROBE CONTINUES

In August 2010, the Broadcasting Authority completed a preliminary enquiry into a complaint brought by ATV alleging that TVB had abused its dominant position by engaging in anti-competitive practices in contravention of section 14 of the Broadcasting Ordinance. The authority decided that a full investigation into the complaint should be conducted before coming up with any conclusions. The watchdog said it would ask artists, singers and staff from record companies and advertising agencies to testify at a hearing to be held later in 2011. It also stressed that no assumption should be made at this stage that there has been an infringement of relevant provisions.

ATV lodged its complaint with the Broadcasting Authority in December 2009. The broadcaster is alleging that TVB monopolises the talent pool by signing exclusive contracts with actors and singers, and offering discounted advertising rates to clients. ATV also complained that the government-owned Radio Television Hong Kong (RTHK) supplied its most popular programmes exclusively to TVB. TVB insisted, however, that contacts signed between artists and the broadcaster were agreed willingly, and that clients demanded the best advertising packages.

There was also bad blood between the two broadcasters over viewing figures. ATV challenged the validity of ratings research commissioned by TVB. ATV said the research was aimed at attacking its performance. TVB sought a public apology and clarification from ATV, and when these were not forthcoming, launched defamation action in the High Court.

The dispute followed a decision by ATV to commission the University of Hong Kong's public opinion programme to evaluate the audience size for its programmes. It had previously participated in a joint survey with TVB. The University of Hong Kong's audience figures were far higher than those coming from the company that is now used solely by TVB. Those figures showed that TVB had a market share of more than 80 percent. The University of Hong Kong figures showed that TVB's share was significantly lower – at 56 percent.

SECTION 6
MTRC consultant drops press freedom bombshell

In April 2011, the government-controlled Mass Transit Railway Corporation (MTRC) and its media consultant, OMD, made a serious mistake which put press freedom at risk.

OMD sent a letter – dated April 19th – to 15 media groups, saying the MTRC reserved the right to "cancel or reschedule any media insertion booked" with any organisation that published "negative news coverage about the brand image of the MTR Corporation". It said the punishment also applied to negative coverage of "rail incidents that happened in other markets" which the local audience might associate with the MTRC. The agency also asked the media to "communicate the warning clearly to your internal staff including traffic team and editors/journalists".

The letter was sent out after an MTRC advertisement on track safety was placed next to a feature story in the Ming Pao newspaper that criticised an MTR property development in Tseung Kwan O.

The MTR Corporation and the media consultant immediately apologised for sending the letter. The corporation's acting chief executive officer, Thomas Ho, said: "We apologise for the misunderstanding caused to the public... We respect freedom of the press and have never had any intention to interfere with it."

The MTRC put the blame on the consultancy, OMD, which misunderstood its instructions in sending the letter. OMD, which has worked for the MTRC for more than seven years, retracted the letter. The government – the biggest shareholder in the corporation – declined to comment.

The letter was condemned by journalists. The chairperson of the Hong Kong Journalists Association, Mak Yin-ting, said the incident was unacceptable, describing the incident as "a brutal interference with press freedom". The Hong Kong News Executives' Association also expressed concern. Independent legislator Andrew Cheng said it was a "nasty blow" to "one of the core values of Hong Kong society".

Media analysts note that it is not unusual for big companies to withdraw their advertising if they are unhappy about media coverage. But an assistant professor in the department of journalism at Baptist University, To Yiu-ming, described the MTRC incident as one of the worst interventions he had seen. He said: "It was never as obvious, never as ugly."

Despite apologies and retraction of the letter by the MTRC and its media consultant, it remains to be seen whether the corporation and other companies will in future reserve some form of "punishment" for uncooperative publications – albeit in more indirect and subtle ways.

COMMERCIAL RADIO FINED OVER POLITICAL ADVERTISEMENTS

In August 2010, the Broadcasting Authority announced that it was fining the private broadcaster, Commercial Radio, HK$60,000 for carrying what it called political advertisements without permission from the authority. The advertisements were placed by rivals – pan-democrat legislator Emily Lau and the pro-Beijing DAB party. Commercial Radio was fined HK$30,000 for each advertisement.

The greatest concern centred on the DAB slots. The party paid HK$600,000 for the right to co-host a series of overnight programmes called "Night Rider 18". A junior DAB member interviewed youngsters and took calls during the programme. The Broadcasting Authority received 906 complaints about the programmes.

The other item – placed by Ms. Lau – called on people to take part in a march for universal suffrage. Ms. Lau paid HK$38,000 for a series of advertising slots. The authority received 322 complaints about this advert.

The Broadcasting Authority ruled that both items were of a political nature. Commercial Radio said it accepted the decision – and suspended remaining episodes of the DAB-sponsored programme. The broadcast of Ms. Lau's item had already ended.

The deputy chairman of the DAB, Lau Kong-wah, said the existing law was outdated. And the Democratic Party's Emily Lau said that censors hip of political adverts affected freedom of speech. She said the law needed to be relaxed, while ensuring that rich political parties did not dominate such adverts.

DAB SERVICES GIVEN THE GO-AHEAD

In November 2010, the government announced approval for three commercial operators to launch 13 DAB (digital audio broadcasting) channels. The operators are Metro Broadcast (which runs existing analogue services), as well as newcomers Digital Broadcasting Corporation (previously known as Wave Media) and Phoenix U Radio, which is a subsidiary of Phoenix Satellite Television. It was later announced – as mentioned in section 4 – that Radio Television Hong Kong (RTHK) would provide five DAB channels, including one devoted to China National Radio.

The development is the first in the radio sphere since the launch of Metro Broadcast in 1991 – and comes amid criticism that radio services in Hong Kong lack diversity. Digital Broadcasting will provide the largest number of channels – a total of seven, including one aimed at ethnic minorities in Hong Kong. The other two commercial operators will each run three channels.

Digital Broadcasting was originally granted a licence to run a single Cantonese-language AM radio service, but it dropped the plan after residents of an outlying island opposed its plan to set up a transmission aerial. It then decided to offer DAB services. The group is backed by several pro-establishment businessmen, including banker David Li. It is run by former radio talk-show host Albert Cheng, who is considered to be close to the chief executive, Donald Tsang.

The services are expected to be launched in late 2011 or early 2012, although Digital Broadcasting is expected to have a soft launch several months earlier. The three private sector operators have pledged to invest HK$1 billion in DAB services in the first six years of operation. The then secretary for commerce and economic development, Rita Lau, called the move a "great leap forward" in the development of digital audio broadcasting services.

But some doubted whether the new technology would take off, given that people would have to buy relatively expensive digital radio sets. The information technology representative in the Legislative Council, Samson Tam, said: "Young people nowadays like to listen to internet radio. High-quality digital audio broadcasting could have been an advantage 10 years ago, but nowadays people listen to music using iPods or iPhones... Few would bother to buy a digital radio to listen to music."

Indeed, one commercial operator, Commercial Radio, withdrew its application to run DAB services, opting instead to focus on mobile phone and online broadcasts.