Secretary for Justice v. Tsang King Shing and Another
Read the full judgment text of HCMA 211/2020 on BabelCite. This High Court CFI judgment was delivered on 20 September 2021.
1. The present case is concerned with three summonses issued by the Secretary for Justice (“the appellant” or “SJ”):
Cited by 1 case · Cites 6 cases
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[English translation – 英譯本] HCMA 211/2020 [2021] HKCFI 2509 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 211 OF 2020 (ON APPEAL FROM ESS 41118 - 41120/2014) ________________
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JUDGMENT 1.The present case is concerned with three summonses issued by the Secretary for Justice (“the appellant” or “SJ”):
Prosecution case 2.The 1st respondent was the only shareholder and one of the directors of the 2nd respondent, and he ran the Citizens’ Radio through the 2nd respondent. On the day in question, the Citizens’ Radio held a forum at the area near the entrance to the lower deck of Star Ferry Pier (for Central bound ferry), and the 1st respondent was one of the speakers. The prosecution alleged that at the material time, the two respondents maintained a means of telecommunications, namely a radio transmitting system operating at the frequency of 102.8 MHz without the relevant licence, and that the 1st respondent knowingly transmitted messages by such means of communications. The magistrate’s findings 3.At trial, after the close of the prosecution case, the magistrate[2] accepted the defence’s submissions for no case to answer and dismissed the above three summonses. Appeal from the SJ 4.The SJ was not content with the said determination of the magistrate, contending that it was erroneous in point of law. By virtue of section 105 of the Magistrates’ Ordinance[3] (“Section 105”), the SJ appealed to the Court of First Instance by way of requesting the magistrate to state a case for the opinion of a judge. Testimonies of prosecution witnesses 5.At trial, the prosecution called two witnesses who were both officers of the Office of the Communications Office (“OFCA”), and their testimonies may be summarised as below.[4] The 1st prosecution witness (PW1) 6.PW1 was an Acting Assistant Controller of the Investigation and Prosecution Sub-section, Enforcement Division, OFCA. On the day in question, he was assigned to investigate the present case at the Star Ferry Pier in Tsim Sha Tsui and be the exhibit officer of the case. 7.At 6:30 pm on the day in question, PW1 arrived at the Star Ferry Pier in Tsim Sha Tsui. He saw that the 1st respondent and two other men were setting up a stage for a forum at the scene. There were two loudspeakers, some display boards and flags at the scene, and at the back of the stage, there was a banner written with the expressions of “Atmospheric Radio Wave occupying Star Ferry / Safeguard Freedom of Speech & Freedom of the Press / Civic Nomination Indispensable” (original Chinese text: 大氣電波佔領天星∕捍衛言論及新聞自由∕公民提名不可或缺). PW1 also saw an audio mixer and a black object suspected to be an FM transmitter by the side of the stage. Above the stage, on the roof of the Star Ferry Pier, there were a set of ground plane antenna and a coaxial cable with one end of which connected to the suspected FM transmitter and the other end extended to the cover of the stage. 8.At around 6:53 pm, PW1 stood in front of the stage to observe. At the same time, he tuned the radio app of his own mobile phone to 102.8 MHz, and, with the use of his earphones, discovered that somebody was broadcasting at the said frequency, and that the content of the broadcasting and what he heard at the scene were one and the same. 9.At around 8:26 pm, the forum concluded and at the same time the broadcasting at 102.8 MHz also ended. A few minutes afterwards, the 1st respondent packed the audio mixer and the suspected FM transmitter at the scene. 10.After that, outside the Cultural Centre, PW1 received from other OFCA officers some exhibits connected with the present case, including, inter alia, a memory card passed to him from PW2’s hand. The 2nd prosecution witness (PW2) 11.PW2 was responsible for taking record on video at the scene. The legal issues involved and the effects of the magistrate’s decisions on the trial hearing 12.At trial, under cross-examination by the defence[5], it was put to PW1 that he had knowingly received suspected unlicenced broadcasting at the frequency of 102.8 MHz with the radio app of his personal mobile phone, and so he himself also contravened sections 8 and 23 of the TO. PW1 said that he had the warrant card issued by the CA, and since he was enforcing the TO for working purpose, he was not required to have the relevant licence. 13.At that time, the prosecution and the defence both agreed that PW1 was wrong in thinking he was not required to have the relevant licence during the enforcement of the TO at work because he had the warrant card. However, the prosecution pointed out, by virtue of section 5(1)(a)(ii) of the Telecommunications (Telecommunications Apparatus) (Exemption from Licensing) Order[6], when PW1 was receiving suspected unlicensed broadcasting at MHz 102.8 with his mobile phone, he was exempted from holding a licence as required by section 8 of the TO. 14.The magistrate had reservations about whether the prosecution’s understanding of the said section 5(1) was correct, and as a matter of fairness and protecting PW1’s right against self-incrimination, he reminded PW1 that he was entitled to refuse to answer questions which might incriminate him.[7] After that, the hearing was adjourned. 15.At the hearing on 28 July, the prosecution altered their previous stance, and said that pursuant to “Application to Crown” under section 3 of the TO, save as otherwise expressly provided, that Ordinance did not bind the Crown. In other words, when OFCA officers (including PW1) acted in the capacity of the Crown, they were not bound by the requirements of licences under the TO and in turn became entitled to immunity from criminal liability, therefore the court did not have to give PW1 the caution on the right against self-incrimination. The defence did not agree with the stance of the prosecution and referred to the Communications Authority Ordinance[8] (“CAO”), in particular sections 3(3)[9] and 19[10] to support their argument. The magistrate adjourned the hearing. 16.On 1 August, after considering the submissions from both sides, the magistrate ruled that under the CAO, the OFCA officers (including PW1) were not entitled to immunity from criminal liability. 17.Before PW1 continued his testimony, the magistrate continued the caution given to him and again reminded him of his entitlement to the legal right against self-incrimination. The magistrate also told PW1 that he could have time to seek legal advice if so required. Since PW1 indicated that he needed to seek legal advice, the court adjourned the hearing. 18.The hearing resumed on 19 October. PW1 told the court that he was not willing to continue to give evidence, and hence the defence did not further cross-examine him. 19.After that, PW2 gave evidence. At the initial stage of the examination-in-chief, the defence suggested that PW2 might possibly have been in a joint enterprise or conspiracy with PW1, or incited PW1 to commit crime, and hence invited the court to give PW2 the same caution about the right against self-incrimination. In response, the prosecution said that each member of the OFCA was assigned with specific investigation work in Tsim Sha Tsui on the day in question. The officers had no connection with each other and did not constitute any joint enterprise or conspiracy / incitement to commit any crime, and therefore no such caution was necessary. The hearing was adjourned again. 20.After seeking legal advice, PW2 also indicated that he did not wish to continue his testimony. The prosecution informed the court that other prosecution witnesses also did not wish to give evidence in court, which brought an end to the prosecution case. 21.The defence made a submission of no case to the court, alleging that the prosecution simply had no prima facie evidence to support the charges after PW1’s refusal to be cross-examined. 22.After consideration, the magistrate found that PW1’s evidence was not regarded as complete because he had not undergone cross-examination. Coupled with the other prosecution witnesses’ refusal to give evidence, the prosecution failed to complete its case. Under such circumstances, the magistrate found that even if the prosecution case was taken to its highest, a properly directed jury would still be unable to reasonably return a verdict of guilty of the said three summonses. He therefore found that no prima facie evidence was established in support of the three summonses faced by the two respondents. The two respondents had no case to answer and were found not guilty. The magistrate’s reasons for findings 23.The magistrate explained that he ruled the OFCA officers did not benefit from section 3 of the TO on account of the following four reasons:
The points of law on which the opinion of the Court of First Instance was sought 24.The points of law which have arisen from the above determinations made by the magistrate and in respect of which the opinion of the Court of First Instance are sought are as follows:
Can SJ appeal by way of case stated 25.Before dealing with the above points of law, Mr Kwok and Mr Tang acting for the respondents raised a procedural issue. They submitted that since the SJ had not identified for what she was aggrieved, the application did not satisfy the condition for an appeal by way of case stated under Section 105. 26.Mr Kwok submitted that the magistrate’s determinations in fact did not have any really adverse influence on the appellant, and that PW1 and PW2 refused to give evidence only because of the unsatisfactory legal advice given by the Civil Division of the Department of Justice. The appellant just should not put the blame on the magistrate’s determination. Besides, the magistrate could not compel the witnesses to give evidence because the appellant had neglected issuing witness summonses to the witnesses. Under such circumstances, the appellant did not meet the requirements of being “aggrieved” under Section 105 and the appeal should be dismissed. 27.Section 105 provides as follows:
28.In view of the provision, I do not accept Mr Kwok’s submissions in this regard for three reasons:
29.Mr Kwok cited AG v Davies[19] but that case did not support the argument that the SJ could not appeal on such ground due to special factual circumstances. In that case, a magistrate fined a prosecution witness because of his absence from the hearing. Therefore, that witness, and not the Attorney General, was the aggrieved person. Under such special circumstances in the case, the Attorney General could hardly assert to be a party of the hearing. It was mentioned in the ruling in that case that the right referred to in para 28(III) above was exercisable only in a private prosecution. In my view, such an understanding of the legislative intent may be too narrow. Nevertheless, since the prosecution does not rely on this part of the provision, I am not going to make any decision on this point. 30.Based on the above reasons, in particular the first and second reasons, I find that the SJ has the right to rely on Section 105 to appeal by way of case stated in the present case. Point of law (I) 31.The question is: Whether, on the correct construction of section 3 of the TO, the magistrate erred in law in holding that the section was not applicable to the OFCA staff. Appellant’s submissions 32.Mr Lai’s submissions addressed each argument[20] set out by the magistrate, and the main points are as follows:
Respondents’ submissions 33.On the other hand, the main points in Mr. Kwok’s submissions are as follows:
34.Mr Kwok pointed out that although PW1 and PW2 were OFCA staff members, the main point was whether they acted in the capacity of the Government and enjoyed the status, immunity or privilege to which the Government/Crown was entitled, including the immunity specified under section 3 of the TO. 35.Mr Kwok emphasised that according to the CAO under which the CA was established, the CA was a statutory body independent of the Government and not a servant or an agent of the Government, and it did not enjoy any status, immunity or privilege of the Government[27]. Hence it did not belong to the Crown, and therefore the immunity under section 3 of the TO was not applicable to the CA. Section 3 clearly stated that it was only the Crown that the Ordinance did not bind, whereas the CA was an independent body and not a part of the Crown. 36.As to the appellant’s contention that since the OFCA was a government department supporting the CA, it acted in the capacity of the Crown, and therefore could invoke the immunity under section 3, Mr Kwok said in response that even if the OFCA was a government department, it was still an executive arm of the CA acting with the authority of the CA and on the CA’s instructions, it therefore was not a part of the Crown. 37.Mr Kwok referred to Town Investments Ltd v Department of the Environment[28]to support his argument:
38.He emphasised that only the CA had the power of law enforcement conferred by the relevant Ordinances, and such power came from section 4(2) of the CAO, section 35 of the TO and other relevant Ordinances. The Ordinances conferred power to only the CA and not the OFCA. Besides, the OFCA was the executive arm of the CA, the OFCA staff had to be authorized in writing by the CA before supporting the CA and performing the functions of the CA. 39.Mr Kwok also submitted that the magistrate did not err in giving caution to PW1 and PW2. He said that before giving them caution, the magistrate was not required to be sure that PW1 and PW2 definitely committed any offence. Provided he considered that PW1 and PW2 would likely commit any offence, it would not be erroneous in law to give caution. He cited two English cases Blunt v Park Lane Hotel Ltd[30] and R v Boyes[31] to support his argument. 40.He said that in the present case, the magistrate gave PW1 and PW2 caution for they would reasonably likely commit an offence (and not having committed the offence concerned). The magistrate’s analysis on this decision sufficiently reflected that his worry was not a danger of an imaginary and unsubstantial character, and was not an extraordinary and barely possible contingency. Discussion and consideration 41.The offences that the evidence at trial showed the two prosecution witnesses might have committed were created under sections 8, 20 and 23[32] of the TO, and the respondents were also charged under the same provisions of the Ordinance. 42.The appellant contended that since section 3 of the TO expressly provided that the Ordinance did not bind the Crown, it was simply not possible that the prosecution witnesses committed the above offences, and hence the magistrate was wrong in law to caution them. 43.The provision under section 3 of the TO could be read in para 23(I)(1) above, in which the expression “this Ordinance does not bind the Crown” is relevant to the present case, and the essential issues are: how “the Crown” should be construed and what is the meaning of “does not bind”. 44.Section 3 of the TO expressly states that the Ordinance does not bind the Crown, and one of the obvious purposes is that the regulatory provisions of the Ordinance do not bind the Crown, including those on the telecommunications established or maintained without a licence stipulated under sections 8 and 23. 45.I agree with the appellant’s submission that it is not only the effect of the statute but it is also the embodiment of the consistent position of the common law. 46.In Province of Bombay v Municipal Corporation of the City of Bombay[33], the United Kingdom Privy Council[34] held that unless it was expressly stated or the necessary implication of the statute, the Crown was not bound by a statute. In Lord Advocate v Dumbarton[35], the United Kingdom House of Lords[36] made the same ruling. 47.One of the crucial issues in the present case is how the term “the Crown” should be construed. 48.In the present case, the magistrate has unnecessarily mentioned concepts such as “sovereign”, “sovereignty” and so on[37], and he has also failed to give full consideration to the context of the relevant provisions in the IGCO[38]. Sections 2A(3) and section 2 in Schedule 8 to the IGCO provide that “the Crown” shall be construed as a reference to the Government of the Hong Kong Special Administration Region. In other words, since the circumstances of the present case do not involve land, affairs of the Central Government or the relationship between the Central Authorities and the Special Administrative Region[39], “the Crown” mentioned in the Ordinance refers to the Government of the Special Administrative Region. 49.As such, in the circumstances in the present case, which bodies were included by the Government of the Special Administrative Region and whether the two witnesses were part of “the Crown” and acted for “the Crown” became essential issues. 50.Two bodies are involved in the present case, namely, the CA and the OFCA. The latter is a government department whereas the status of the former requires further examination. 51.The CA was established under the CAO[40] (which was enacted in 2012) as a body corporate[41]. 52.According to the Report of the Bills Committee on Communications Authority Bill[42], such arrangements were made with the following background:
53.The functions of the CA can be seen in section 4 of the CAO:
54.The CA also has various powers conferred by the law[45], including the powers to issue some licences, create class licences, vary conditions of licences and issue permits for certain activities, and the power concerning use of land for telecommunications lines. Generally speaking, these powers are held by the Government, or it may also be said that the powers conferred to CA are in concert with certain public power of the Government. 55.On the other hand, section 3(1) of the CAO expressly states the CA is a body corporate.
56.If some functions of the CA are in general executed by the Government, why is there such a provision in section 3 above? 57.In the Record of the Proceedings of the Legislative Council Meeting on 30 June 2011[47], in particular the speech given by the then Secretary for Commerce and Economic Development, the matter becomes discernible. 58.It can be seen from the above Record of Proceedings of the Legislative Council that the statutory functions of regulating the telecommunications and broadcasting sectors belong to the CA, and not any other persons or bodies. The concerns were the freedom of speech and freedom of press and that the CA could work independently. The Secretary made it clear that the absence of the word “independent” did not mean that the CA could not make any independent decision or was subject to government interference in respect of its acts, and in his view, the provisions have addressed the concern that the Administration might interfere with the CA’s operation through any government department such as the OFCA. 59.Section 4(4) of the CAO reflects precisely the importance of the independent operation of the CA. It provides that the CA, in performing its functions, must have regard to such of the following as appear to be relevant in the circumstances:
60.In order to achieve the above purposes, it is considered to be very important that the CA can operate free from interference. The Ordinance is set out and designed in a way that the statutory function of regulating the telecommunications and the broadcasting sectors belong to the CA instead of any other persons or bodies. In discharging its powers and obligations, the CA is not interfered with by the Government, and the Government would not influence the operation of the CA. 61.Besides, the CAO also provides the following:
62.The above sections 15 and 16 provide for the relationship between the CA and its executive arm (the OFCA), and that the Director-General of the OFCA must support the CA in performing or implementing the decisions of the CA and administering and enforcing the relevant Ordinances including the TO, and that the OFCA must support and assist the Director-General in the performance of the Director-General’s statutory functions. The use of the word “must” is significant in that it is not open to the OFCA, which is a government department, not to follow the decisions of the CA, and such arrangement demonstrates the independence of the CA and the purpose of it being free from any Government interference. 63.The OFCA is a government department, whose head is the Director-General as stated in the Ordinance. I agree it was the intent of the legislature that the CA’s functions associated with the TO are to be enforced by the public officers of the OFCA. 64.Therefore, it can be seen that the Ordinance is set out and designed in a way that the CA is authorized by law to perform what are essentially the powers and obligations of the Government, and it may make its decisions independently without being restrained by the Government. The actual daily operation of the CA is carried out by the OFCA which is a government department, and the OFCA must do so to ensure the implementation of the CA’s decisions and of the provisions of the Ordinances related to the powers and obligations of the CA. Since the OFCA, which is a government department, must implement the decisions and provisions, there is no room for intervention or non-enforcement. 65.In my view, generally speaking, the term “the Crown”, where appropriate, may cover bodies which perform what are essentially the functions or powers and obligations of the government. 66.Therefore, I am inclined to take the view that when the CA performs the powers and obligations under the criminal regime in the TO, it is conceptually acting in the capacity of the Crown. However, under the provision of section 3(3) of the TO, in particular the expression of “nor does it enjoy any status of the Government”, coupled with the reference that “the Crown” is to be construed as a reference to the Government of Hong Kong Special Administrative Region as set out under in section 2 in Schedule 8 to the IGCO[50], I will not consider the present case on the premise that the CA itself belongs to the Crown. 67.Mr Lai has also indicated that the appellant would not take a stance that the CA belonged to the Crown. 68.The OFCA is a government department, and in my view, when it, as the Ordinance requires, provides support to the Director-General of the CA to whom it has the duty to support and hence performs the duty of enforcing the criminal regime in the Ordinance, it acts in the capacity of the Crown. 69.The Government or the Crown may perform its powers and obligations and enforce its decisions only through its officers. When the OFCA officers, with the authorization by law, support the CA in enforcing the criminal regime in the TO, they are acting in the name and the capacity of the Hong Kong Government. 70.Even if PW1, in a way Mr Kwok suggested, had used his personal mobile phone to facilitate his action, in the circumstances of the present case, the nature of his action, namely acting in the name of the Hong Kong Government and in his capacity of the Crown, would not thereby change. 71.As to the argument that the CA is above the OFCA in the hierarchy, having regard to the abovementioned policies and the setting and design of the Ordinance, in my view, the said hierarchy is not relevant to whether the witnesses in question are entitled to the immunity enjoyed by the Crown. The main point is: whether they were supporting the CA as required by the Ordinance and thus performed the duty of enforcing the criminal regime in the Ordinance. 72.In my consideration, I took into account the following stipulation in section 19 of the TO:
73.This gives rise to an issue related to what the magistrate thought, ie, whether it is the case that the OFCA officers can benefit from the general immunity under section 3 because they are public officers, whereas the CA officers were only entitled to immunity from civil liability under section 19. 74.In my view, the setting and design mentioned above have to be taken into consideration. The CA simply would not enforce its decisions nor the criminal regime in the Ordinance on its own, and all these duties are to be performed by the OFCA and its officers. The officers of the CA had the risk of incurring civil liability in performing their duties, eg in advising the Government or making policies within its powers. If the CA officers commit a criminal offence in the execution of their duties, there would be no reason that they could have immunity from criminal liability, and hence entitlement to immunity from civil liability[51] is sufficient. 75.The OFCA officers are also entitled to the immunity from civil liability within the ambit of the above section 19. As to criminal liabilities, they would not automatically or necessarily be entitled to the protection provided by section 3 simply because of their identity as OFCA officers. They must be lawfully performing the duties as required by the TO for them to be regarded as officers of the Crown who are not bound by the Ordinance under section 3, and such protection was not unrestricted as it was described by the magistrate. 76.As the English court held in Cooper v Hawkins[52], an officer must be acting in accordance with the instructions of his superior officer and in the course of his duty instead of acting in his personal capacity before his act could be regarded as an act of the Crown. 77.The magistrate queried that the officers would still be entitled to immunity from criminal liability if they contravened the law in law enforcement. This is of course not the case. At the most, the effect of section 3 is that when an OFCA officer acts properly in the capacity of an officer of the Crown in performing the duties under the Ordinance and enforcing the restrictions of the criminal regime, he is not subject to the criminal regime in the Ordinance. If in the course of it, the officer commits a criminal offence which is just outside the ambit of section 3, the officer would not be entitled to the general and unrestricted immunity from criminal liability as described by the magistrate. Therefore, the concern raised by the magistrate does not in fact exist. 78.The magistrate also suggested that the OFCA officers have the power of law enforcement only upon satisfying the conditions under section 35 of the TO. 79.Section 35 of the TO sets out some powers of the CA and the officers authorized by it and also provides that officers must be authorized in writing by the CA for exercising such powers. Nevertheless, this requirement is to be complied with only when the powers described by section 35 are involved, which include the powers to arrest, enter and inspect premises, and seize, remove and detain articles involved in cases. 80.If a matter involves a power described by section 35, the conditions and restraints mentioned in the paragraph 75 above must also be observed. In the present case, the acts of the prosecution witnesses did not involve the powers under section 35. 81.Section 35 is also connected with the issue of whether the powers of the OFCA come from the Authority. Mr Kwok submitted, inter alias, that if the powers of the OFCA came from the Authority, then since the Authority is not “the Crown”, the OFCA would not be “the Crown”. 82.Mr Lai accepted, and I also agree, that all functions under the TO belonged to the CA. However, as stated above, the law is designed in such a way that the OFCA must provide support in the implementation and enforcement of the Ordinance. The word “support” is used here to illustrate that the two do not have the ordinary superior-subordinate relationship, and also to highlight the situation that even if the CA does not belong to “the Crown”, the OFCA is not affected in acting in the capacity of the Crown in the implementation and enforcement of the public affairs and public powers under the TO. 83.Since the OFCA is duty-bound to support the Authority in implementing and enforcing the TO, in performing its duties, it does not have to wait for the instructions from the Authority before commencing work in each and every case. Section 35 appears to be related to certain powers only, it is also my view that since the OFCA has irrefutable duties to support the Authority in implementing and enforcing the Ordinance, the authorization of the necessary power for implementing and enforcing the Ordinance to the OFCA and its officers must be implied in the Ordinance. In any event, Mr Lai pointed out that the relevant authorization was set out expressly on the warrant card of each OFCA officer:
84.Although Mr Kwok raised that:
However, I am of the view that the present case involves only points of law, the court is therefore entitled to have a look at the document in question. Having looked at the document, I find that what is stated does express an authorization. Whether the authorization is proper does not affect the consideration of the point of law in question, and the Authority obviously intends to give authorization to the officer concerned. 85.The magistrate also pointed out that sections 3(3) and 19 of the CAO were what “otherwise expressly provided”[53] referred to in section 3 of the TO. Mr Kwok supported this view. On this issue, I do not agree with the magistrate. According to my analysis above, in considering whether the acts of the prosecution witnesses in the present case amounted to an act of the Crown so that the Ordinance did not bind them, these two provisions do not constitute what is otherwise expressly provided. 86.In view of the above reasons, I find that the acts of the two prosecution witnesses amounted to acts of the Crown, and section 3 of the TO therefore applied, and the acts of these two persons were not bound by the criminal regime in the TO. 87.As such, my answer to point of law (I) is “yes”, the magistrate had erred in law. Point of law (II) 88.Here, the question is: whether the magistrate erred in law in cautioning the prosecution witnesses about their right against self-incrimination? 89.Generally speaking, when a witness gives evidence, if the answer to any question or any document or physical object requested to be produced would likely incriminate him of any offence, then he is protected from answering the question or producing the document or physical object[54]. 90.PW1 and PW2 played the following roles in the case:
91.Mr Lai submitted that at the time of the offence, PW1 and PW2 were both public officers on duty and assigned with the carrying out of duties in question under the TO. If the Court of First Instance ruled that the immunity under section 3 of the TO was applicable to the OFCA and its officers, there would not possibly be any contravention of the criminal provisions under the TO on the basis that PW1 and PW2 were at the material time OFCA officers who were not bound by the TO at the time of law enforcement. 92.Mr Lai asserted that under the circumstances of the present case, there was just no danger that PW1 and PW2 would be prosecuted for contravening the TO, the magistrate nevertheless cautioned them of the right against self-incrimination, which reflected that he had not considered or had not given appropriate consideration to whether PW1 and PW2 would incriminate themselves (ie criminal liability under sections 8 and 23 of the TO) by testifying or continuing to testify so that they would each face the danger of being criminally prosecuted. The magistrate was wrong to have done this and he erred in law. 93.Mr Lai also submitted that if the two witnesses could benefit from section 3 of the TO, it was simply not possible that they committed any offence, and hence there was no need to caution them. 94.The main line of Mr Kwok’s submissions was that if the court’s opinion on point of law (I) was in the negative, the answer to point of law (II) would definitely be negative. 95.Mr Kwok also submitted that regardless of the answers, the magistrate did not need to be sure that PW1 and PW2 would definitely commit an offence before he cautioned them. As long as he thought PW1 and PW2 would likely commit an offence, then his caution would not be erroneous in law. He cited Blunt v Park Lane Hotel Ltd[55] and R v Boyes[56] to support his argument. 96.Mr Kwok said that the magistrate had analysed the provisions in the Ordinance and also considered the actual situation. The analysis on his decision of giving caution was on the basis that PW1 and PW2 would reasonably likely[57] commit an offence (instead of having committed the relevant offences). As far as the present case is concerned, his worry was not a danger of an imaginary and unsubstantial character[58], nor was it an extraordinary and barely possible contingency[59]. Mr Kwok also pointed out that since PW1 had used the radio function of his personal phone, at least it was likely that he could not benefit from section 3 of the TO, and therefore the magistrate was not necessarily wrong to give the caution concerned. 97.Mr Kwok said in his submissions that under such circumstances, even if the court’s answer to point of law (I) was “yes”, in view of the magistrate’s analysis before giving caution, the answer to point of law (II) should still be “no”. 98.Since this court has ruled that section 3 of the TO was applicable to the present case, it would be hard to apprehend the likelihood that the two prosecution witnesses committed the relevant offence. 99.I have considered Mr Kwok’s submissions, namely if the magistrate’s caution was given on the basis of the likelihood that the two witnesses committed the offence, he would not be wrong. 100.I agree with Mr Lai’s submissions. Based on the effect of section 3 of the TO, there was simply no room for the existence of the said danger. 101.Mr Kwok said in his submissions that if he had the chance to cross-examine the witnesses, he could possibly bring out the evidence that the said officers’ conduct did not satisfy the conditions for benefitting from section 3. 102.In my view, the situation described by Mr Kwok did not happen at trial or at least did not happen after the material stage. At trial, up to the material stage, there had been no sign of such situation. The evidence only suggested that the two witnesses had carried out public duty in a case of suspected contravention of the Ordinance. At that time, the magistrate should only consider if the two witnesses were officers of the Crown and hence benefitted from section 3. 103.My answer to point of law (II) is also “yes”: it was erroneous in law for the magistrate to give the witnesses the relevant caution. Should there be a retrial? 104.The appellant applied to the court for a direction of a retrial of the case to be held before another magistrate under section 119(1)(d) of the Magistrates Ordinance if the appeal was allowed. 105.The appellant submitted that although there had been a lapse of six odd years after the occurrence of the case, it involved no undue delay caused by the prosecution. From the time the prosecution commenced the appeal by way of case stated to the time the magistrate signed on the stated case, although it was not a short period, the matter was delayed mainly because the respondents had insisted on obtaining the transcript of the entire trial. 106.The following material dates were involved in the course of the event:
107.In the case of香港特別行政區 訴 劉棟平[62], the Court of Appeal made the following comments:
108.Furthermore, in HKSAR v Lee Shing Hung[63], the Court of Final Appeal indicated that even if the appellant had finished serving the sentence, this did not of itself make an order for retrial wrong in principle, and that whether a retrial should be ordered involved an exercise of discretion by the appellate court taking into account all relevant considerations, including the public interest and the legitimate interests of the defendant[64]. 109.In HKSAR v Ma Sin Chi[65] and HKSAR v Ng Chun To Raymond[66], after going through a number of relevant precedents[67], the Court of Appeal pointed out some relatively important factors which should be taken into account in considering whether an order for retrial should be made, including the following:
110.The present case is serious to a certain extent, and it was not the first time that the respondents committed the offence in question. However, the penalty for the offence is only a fine after all [69]. 111.It has been over seven years since the alleged offence happened. As to the lapse of time, the appellant is not really responsible. As the appellant has pointed out, it was attributed to the respondents’ insistence on having the transcript of the recordings of the trial, which was time consuming. This was actually what has happened. Nevertheless, in the circumstances of the present case, the respondents’ request for the transcript cannot said to be completely unreasonable. 112.In my consideration, I have taken into account the following three matters:
113.Having carefully considered the relevant circumstances as a whole, I do not think that an order for retrial is necessary or proper. Although the long lapse of time was not attributable to any fault of the prosecution, the risk of resulting in an unfair trial or hindrance in the proceedings must be taken into account. Therefore, the appellant’s application is refused and no order for retrial is made. Conclusion 114.Therefore, my answer to point of law (I) is: “yes”, the magistrate erred in law. 115.My answer to point of law (II) is also “yes”, the magistrate’s giving the cautions in question to the witnesses was erroneous in law. 116.The appeal is allowed and I make no order for retrial.
Mr Ned Lai, Deputy Director of Public Prosecutions (Ag) and Mr Andrew Li, Assistant Deputy Director of Public Prosecutions (Ag), of the Department of Justice, for the Appellant Mr Douglas Kwok and Mr Howard Tang, instructed by JCC Cheung & Co., for the Respondents Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law. [1] Cap 106 of the Laws of Hong Kong. [2] Mr Pang Leung Ting. [3] Cap 227 of the Laws of Hong Kong. [4] Modified extracts from paras 9 to 14 and 22 of the case stated by the magistrate. [5] At trial, the defence was represented by Mr Douglas [Kwok] of counsel. [6] Cap 106Z of the Laws of Hong Kong. [7] Statement of findings, para 15. [8] Cap 616 of the Laws of Hong Kong. [9] See para 23(I)(1) below. [10] See para 72 below. [11] The English version of “官方” in the Ordinance is “the Crown”. [12] Cap 1 of Laws of Hong Kong. [13] Cap 616 of the Laws of Hong Kong. [14] It is called “the Authority” in the TO. [15] This means the CA. [16] See para 23(I)(1) above. [17] See para 79 below. [18] The appellant is represented by Mr Ned Lai, Deputy Director of Public Prosecutions (Ag) and Mr Andrew Li, Assistant Director of Public Prosecutions (Ag). [19] [1970] HKCR 203. [20] See para 23(I) above. [21] See para 23(II) above. [22] [1904] 2 KB 164. [23] See para 23(III) above. [24] See para 23(IV) above. [25] See sections 4(2) and 15(3) of the TO. [26] See para 23(IV) above. [27] Section 3(3) of the TO. [28] [1978] AC 359. [29] This is an English case which has no official Chinese translation, and the original text is as follows: “if instead of speaking of ‘the Crown’ we were to speak of ‘the government’ – a term appropriate to embrace both collectively and individually all of the ministers of the Crown and parliamentary secretaries under whose direction the administrative work of government is carried on by the civil servants employed in the various government departments. It is through them that the executive powers of Her Majesty’s government in the United Kingdom are exercised … Executive acts of government that are done by any of them are acts done by ‘the Crown’ in the fictional sense in which that expression is now used in English public law.” [30] [1942] 2 KB 253. [31] 121 ER 730. [32] The time limit of the offence under section 23 in fact already expired at the time of the trial and prosecution could not be brought. [33] [1947] AC 58. [34] Privy Council. [35] [1990] 2 AC 580. [36] House of Lords. [37] See para 23(I)(4) above. [38] See footnote 12. [39] See section 1, Schedule 8, IGCO. [40] See footnote 8. [41] See section 3(1) of the TO. [42] LC Paper No. CB(1) 2582/10-11. [43] The Broadcasting Authority is a statutory body established under the Broadcasting Authority Ordinance (Cap 391). [44] The Telecommunications Authority operates under the Trading Fund Ordinance (Cap 430). [45] Including those set out in Parts 2 to 4 of the TO. [46] According to the English version of the Ordinance, “政府”in the Chinese version means “government”. [47] See item 8 of the appeal bundle, document at p 9422. [48] Cap 383 of the Laws of Hong Kong. [49] This is the Director-General of the OFCA. [50] See para 48 above. [51] See para 72 above. [52] See footnote 22. [53] See para 23(I)(1) above. [54] See para 12-91, Archbold Hong Kong 2020. [55] See footnote 30. [56] See footnote 31. [57] Namely “reasonably likely". [58] Namely “not a danger of an imaginary and unsubstantial character”. [59] Namely “extraordinary and barely possible contingency". [60] HKSAR v Tsang Kin Shing & Anor, HCMA 322/2015. [61] FAMC 58, 59/2016. [62] Judgment dated 3 November 2004 in CACC 303/2003. [63] FAMC 29/2006. [64] The original text is: “4. In our view, the fact of having served the sentence does not of itself make an order for retrial wrong in principle. Whether a retrial should be ordered involves an exercise of discretion by the intermediate appellate court taking into account all relevant considerations, including the public interest and the legitimate interests of the defendant. The decision in the present case cannot be said to fall outside the proper scope of that discretion and leave to appeal must be refused.” [65] CACC 424/2013. [66] CACC 178/2010. [67] Including Au Pui Kuen v AG (1979) HKLR 16, Ting James Henry v HKSAR [2008] 4 HKLRD 850, Dennis Reid v R [1980] AC 343, R v Maxwell [2011] 1 WLR 1837 and R v Holgate (No 2) [1996] 3 HKC 324. [68] See R v Holgate (No 2) [1996] 3 HKC 324. [69] Section 23 of the TO. |
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