HKSAR v. Poon Tat Keung

FAMC Nos. 58 & 59 of 2016

FAMC No. 58 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 58 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 322 OF 2015)

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BETWEEN

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FAMC No. 59 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 59 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 322 OF 2015)

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BETWEEN

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1.At the hearing, this leave application was dismissed for the reasons which follow.

2.The applicants were convicted under section 23 of the Telecommunications Ordinance[1] because, in taking part in a radio broadcast by “Citizen's Radio”, they had plainly transmitted messages using a means of telecommunications which they knew was unlicensed.

3.The applicants sought leave to argue on appeal that they had a defence which entails showing that their conviction involved an infringement of their constitutional right of free expression.  They applied for certification of the following questions:

(1) In an offence under s 23 of the Telecommunications Ordinance, does non-compliance by the Communications Authority to Communications Authority Ordinance section 4(4) constitute a defence?

(2) Was Secretary for Justice v Ocean Technology Ltd[2]wrongly decided?

4.For their argument to succeed, they had to show that it was reasonably arguable (i) that an infringement of their constitutional rights had occurred and (ii) that it was relevant by way of defence to the section 23 charge.

5.Adopting an orthodox approach, no such unconstitutionality is discernible.  There is no unrestricted right to broadcast on the airwaves.  The available spectrum for radio transmissions is a limited public resource and it is clearly necessary to have a system for allocating frequencies and avoiding interference.  That is the legitimate aim of the Ordinance’s licensing scheme. The offences under section 23 do no more than necessary to enforce that system and are rational and proportionate measures to accomplish that legitimate end.  On the facts so approached, there is no arguable case of unconstitutionality.

6.As indicated by the questions put forward, the applicants sought leave on the basis of a highly unorthodox approach.  They sought to conjure up unconstitutionality alleging (i) that the Communications Authority was in breach of its duty under section 4(4)(d) of the Communications Authority Ordinance[3] to have regard to acting in a manner consistent with the provisions of the Bill of Rights;[4] (ii) that if it had complied with its duty, it would have recognized that it was under a positive duty to facilitate the applicants’ free expression through a community radio station and thus “might well have” created a class license under 7B;[5] and (iii) that had it in fact created such a licence, their transmissions would not have constituted a section 23 offence.   Thus, so it was argued, unconstitutionality was available as a defence to the criminal charge.

7.Having examined the evidence, including evidence that no FM frequencies were available for allocation, Albert Wong J[6] found no factual basis for the alleged breach of the section 4(4) duty.  Nor was it established that section 7B licences would have been appropriate for the applicants’ purposes.  In any event, the convoluted argument advanced rests on unsound legal premises and begs crucial questions which it is unnecessary to explore in the present context.  Even if it were a viable argument, we were not satisfied that any basis had been made out for contending that Secretary for Justice v Ocean Technology Ltd[7] was wrongly decided.

8.For the foregoing reasons, we were not satisfied that a reasonably arguable case was advanced for the grant of leave to appeal.

Mr Douglas Kwok, instructed by Ho Tse Wai & Partners, assigned by the Director of Legal Aid, for the Applicants

Mr David Leung SC, DDPP and Ms Laura Ng SPP, of the Department of Justice, for the Respondent