Secretary for Justice v. Ocean Technology Ltd and Others
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HCMA 173/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO.173 OF 2008 (ON APPEAL FROM ESS Nos. 31207-31211 OF 2006, 36868-36870 OF 2006, 36871-36873 OF 2006 and 36925-36927 OF 2006) ---------------------- BETWEEN
---------------------- Before: Hon Ma, CJHC, Stock JA and A Cheung J in Court Dates of Hearing: 10-12 September 2008 Date of Judgment: 12 December 2008 ------------------------ J U D G M E N T ---------------------- Hon Ma CJHC: 1.For the reasons contained in the judgment of Stock JA, I too would allow the appeal. I also agree with the proposed orders. Hon Stock JA: The issue 2.Section 20 of the Telecommunications Ordinance, Cap 106, when read with s.8, creates the offence of establishing or maintaining a means of telecommunications save under a licence granted by the Chief Executive in Council. 3.The respondents to this appeal were charged with contravening those provisions. The magistrate acquitted them. He found that the licensing regime prescribed by the Telecommunications Ordinance was not prescribed by law and was therefore unconstitutional and it followed that, as he put it ‘the charges … were unconstitutional.’ 4.This is an appeal by way of case stated from that decision. 5.The key question raised by this appeal is whether the constitutionality of the statutory licensing regime prescribed by the Telecommunications Ordinance has any bearing on the constitutionality of the offence-creating provisions. 6.Although the case stated does not pose the issue in those terms and although it asks further and much wider questions, the issue I have identified is the one which the magistrate ought first to have identified and answered. Had he done so, much else would have fallen away. Background 7.The first respondent, Ocean Technology Ltd, is a company registered in Hong Kong in 2005. The second respondent is its sole shareholder and one of its directors. In September 2005, the company applied for a licence to operate a non-commercial and non-profitmaking radio station called “Citizens Radio Station” to provide a sound broadcasting service. The application was to establish, in the first stage, an FM station that would operate a community radio service. 8.On 12 December 2006, the Chief Executive in Council rejected the application. 9.It is alleged against the first and second respondents that before the rejection of that licence application, they established a transmitting system, that other respondents conspired with them to do so, and that one or more of them used that system; in short, that they were engaged in broadcasting without a licence. 10.Accordingly, the respondents were charged with a variety of offences contrary to ss. 8 and 20 of the Telecommunications Ordinance, Cap 106. Those provisions make it an offence to establish or maintain any means of telecommunications, or to use apparatus for radio communications, save under and in accordance with a licence granted by the Chief Executive in Council. There were 14 charges alleging offences between July 2005 and October 2006. 11.On 12 November 2007, the respondents appeared before Mr Douglas Yau, a magistrate sitting at the Eastern Magistracy. The respondents pleaded not guilty to each charge and contended that the provisions pursuant to which the charges had been laid were unconstitutional in that they were allegedly contrary to art. 27 of the Basic Law and art. 16 of the Hong Kong Bill of Rights Ordinance which protect freedom of expression. 12.Art. 39 of the Basic Law provides that freedoms enjoyed by Hong Kong residents shall not be restricted “unless as prescribed by law” and art. 16 of the Bill of Rights Ordinance similarly provides that restrictions shall only be such as are “provided by law”, whereas, the argument ran, the power given to the Chief Executive in Council by the Ordinance to refuse applications for a broadcasting licence (and thereby to restrict freedom of expression) was not “prescribed by law”. 13.Although the case stated records the arguments in the court below that the legislative requirement to obtain a licence for broadcasting was itself a disproportionate restriction on the freedom of expression and that the licensing regime was “not proportionate to legitimate aims”,[1] the magistrate determined the matter on the basis of that which he described as “one single issue – whether the licensing regime is prescribed by law as required by articles 27 and 39 of the Basic Law and article 16 (3) of the Hong Kong Bill of Rights."[2] That, too, is the single basis upon which the respondents have argued their case in this Court. 14.The magistrate held that the provisions in question were unconstitutional as not being prescribed by law, and he dismissed the charges. 15.On 9 January 2008, the Secretary for Justice applied to the magistrate to state and sign a case pursuant to the provisions of s. 105 of the Magistrates Ordinance, Cap 227. The case stated was signed on 15 February 2008 and on 10 March 2008 a judge of the Court of First Instance directed under s. 118(1)(d) of the Magistrates Ordinance that the appeal by way of case stated should be heard by the Court of Appeal. This is that appeal. What the case is not about 16.The complaint that the relevant statutory provisions are not prescribed by law rests on the contention that the licensing discretion vested in the Chief Executive in Council is unfettered. Whether, even if that were so, that affects the validity of the offence-creating provisions is an issue which we must address, but there was much in the argument before us that disclosed grievances that, on any view, do not fall for us to determine in these proceedings. 17.There were suggestions that the statutory regime for broadcast licences does not cater for modern needs; that, by comparison with countries of similar population, Hong Kong falls woefully behind in the number of radio stations that operate; that the prosecution of these respondents was unfair; that the applicants had, as allegedly evidenced by the grant of a licence to others, been excluded from fair consideration by reason of their political leanings; that the application for a licence was not fairly considered; that there was undue delay in its consideration; that the decision maker took into account irrelevant matters and failed to take into account relevant factors; that, contrary to the decision maker’s assertion, FM frequencies were available; and that there exists no policy for community radio, where such a policy ought to have been espoused. 18.It is important to recognize that this case is not an application for judicial review of the decision of the Chief Executive in Council to refuse to issue a licence to the respondents. Neither is it a challenge to the legality of the Government’s view or decision that there is no need in Hong Kong for community radio services. The case stated does not raise any question for our determination as to the reasonableness of the decision to refuse the application for a licence; whether there has been bias against these respondents; whether there has been a procedural flaw; whether there is irrationality in the present stance against community radio; or whether a decision generally to deny community radio services would be one that of itself is an unlawful infringement of the freedom of expression. The sole issue with which this Court is concerned is whether the offence-creating provisions constituted by ss.8 and 20 of the Telecommunications Ordinance are unconstitutional. The Constitutional Provisions 19.Art. 39(1) of the Basic Law gives constitutional effect to the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong and requires at (2) that:
20.The relevant provision of the ICCPR is art. 19. Its terms, in so far as is relevant to this appeal, are as follows:
21.Art. 19 of the ICCPR is repeated in art. 16 of the Hong Kong Bill of Rights. 22.It is relevant to note, since some of the cases to which we have been taken involve application of the European Convention on Human Rights and Fundamental Freedoms, that art. 10 of that Convention has an emphasis omitted from art. 19 of the ICCPR, in that art. 10 expressly provides that the freedom of expression which it guarantees ‘shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises’. Its omission from art. 19 was deliberate, though the difference in the two is of no practical consequence because the same proviso is implicit in art. 19, since art. 19 permits restriction where necessary for the protection of public order (ordre public): Groppera Radio AG v Switzerland[3]. 23.Also prayed in aid by the respondents is art. 27 of the Basic Law:
The Ordinances (1) The Telecommunications Ordinance, Cap 106 24.The Telecommunications Ordinance makes provision for the establishment of a Telecommunications Authority. That Authority is empowered to grant or create certain licences with which we are not in the present case concerned. What is engaged in this case is a power entrusted to the Chief Executive in Council. 25.Part IIIA[4] of the Ordinance was added in 1989 and “provides a self-contained regulatory regime for sound broadcasting and establishes the role of the Broadcasting Authority in assessing applications for sound broadcasting licences and in regulating the ownership of sound broadcasting licensees.”: see The Annotated Ordinances of Hong Kong[5]. 26.Only a Hong Kong registered corporation may apply for and be granted a licence to establish and maintain a broadcasting service: ss. 13B and 13F. 27.Applications to establish and maintain a broadcasting licence must be made to the Broadcasting Authority: s. 13B. The Ordinance requires that Authority to consider such applications and to make recommendations thereon to the Chief Executive in Council: s. 13C(1). Having considered such recommendation as is made by the Broadcasting Authority, the Chief Executive in Council may grant a licence which shall be subject to the payment of a fee, royalty or other charge and to such terms and conditions as the Chief Executive in Council may specify in the licence: s. 13C(2). 28.There is a list of persons who are disqualified from exercising control of a corporation which is a licensee with power, however, in the Chief Executive in Council, to grant a licence to a corporation that is a disqualified person: ss. 13G and 13A. There is a category, too, of those not qualified to hold more than 49% of the total number of voting shares in the licensee corporation: s. 13I; they include, for example, those who have not been ordinarily resident in Hong Kong for seven or more years. 29.Section 13M prohibits a licensee from broadcasting material likely to incite race, gender, or religious hatred and the Chief Secretary for Administration is empowered to apply to the Court of First Instance where he reasonably believes that the broadcast of material will contravene that prohibition. 30.Section 13O provides that:
We were told that no regulations have been promulgated pursuant to that section. 31.The offence-creating provision with which we are concerned is s. 20 when read with s. 8. 32.Section 8 provides that:
33.Section 20 stipulates that any person who contravenes s. 8(1) shall be guilty of an offence. Such a person is liable on summary conviction to a fine of $50,000 and to imprisonment for two years, and on conviction on indictment, to a fine of $100,000 and to imprisonment for five years. (2) Broadcasting Authority Ordinance, Cap 391. 34.The Broadcasting Authority is established by s. 3 of the Broadcasting Authority Ordinance. Its membership is prescribed by s. 4 which states that the Authority shall consist of three public officers and not less than six nor more than nine persons who are not public officers but who are ordinarily resident in Hong Kong and who have been so resident for at least seven years, all of whom are to be appointed by the Chief Executive. 35.Section 9 prescribes the functions and powers of the Authority:
36.Section 19authorises the Broadcasting Authority to issue Codes of Practice :
37.Section 20 confers upon the Authority the power to issue directions to a licensee requiring the licensee to take such action with regard to the standards of its programmes or with regard to the technical standards of its broadcasts as to make them complicit with regulations promulgated under s. 13O of the Telecommunications Ordinance and Codes of Practice issued under s. 19 of the Broadcasting Authority Ordinance. 38.Section 26 provides a mechanism whereby a licensee aggrieved by a decision of the Broadcasting Authority in the exercise of a discretion conferred on it under the Broadcasting Authority Ordinance, or Part IIIA of the Telecommunications Ordinance or regulations made thereunder, or by anything contained in a Code of Practice or direction issued by the Broadcasting Authority may appeal by way of petition to the Chief Executive in Council. Codes of Practice 39.Three radio Codes of Practice have been issued under s. 19 of the Broadcasting Authority Ordinance. They are:
40.These Codes of Practice are available online on the Broadcasting Authority’s website. Information required of an applicant 41.There is no prescribed form for a sound broadcasting licence application nor are there guidance notes for those who wish to apply for a licence. However, any party interested in applying for such a licence is in practice provided with a document entitled: “Information to be provided by sound broadcasting licence applicants.” Such a document was provided to the applicant for a licence in this case. 42.The information document is divided into five categories: company information; financial information; programming information; technical information; and “other information”. 43.Included under “company information” are requests for details of the shareholding structure, details of the shareholders, copies of the memorandum and articles of association, management structure, and relevant experience in running similar operations. 44.The financial information sought is, as one would expect, directed at evidence of sound financial backing and includes a request for balance sheets, banker’s confirmation of the amount of deposits and credit facilities, investment plans, projected profit and loss accounts, and projected market share that the applicant will be able to acquire. 45.Amongst the programming information that is sought are details of the programmes to be provided, of daily broadcasting hours, and of the proposed internal monitoring system to ensure compliance with licence conditions and Codes of Practice. 46.The technical information required includes details of the locations of transmitters, frequencies to be used, transmission power, technology to be employed, the planned geographical coverage of the network, studio facilities, the preferred frequency bands and the amount of frequency spectrum that will be used for the provision of the proposed service. 47.Other information required includes details of construction work proposed, the period between the grant of a licence and the commencement of service, and a demonstration that the implementation of the proposal will offer benefits to Hong Kong. History 48.The application was submitted by the first respondent in September 2005. It was for a licence that would enable the operation of a community radio station, broadcasting on FM frequency. The targeted audience were local communities and it said that its mission was to provide diverse programming, strive for cultural diversification and provide a venue for the expression of opinions and for the needs of minorities. It was said that a technical support department would be established but, at the date of the application, details about equipment and other technical and transmission information were not supplied. The initial capital investment in transmission facilities was said to be in the region of $2 million. The main source of funding was to be shareholders’ contribution and public donations. Funds would be raised once the licence was granted. 49.On 5 October 2005, the Broadcasting Authority told the solicitors acting for the applicant company that further information was required. Under the heading “Technical Information”, the company was informed that the Office of the Telecommunications Authority (OFTA): had advised that there was no FM frequency available for the proposed territory wide service. The company was asked to provide an alternative feasible technical proposal. There then followed 35 items of information that were requested. The answers to those questions were submitted on 22 November 2005. 50.The chronology then jumps to August 2006. On 9 August 2006, the Broadcasting Authority wrote to the Communications and Technology Branch of the Commerce, Industry and Technology Bureau of the HKSAR Government. The letter records the fact that at its meeting of 27 July 2006, the Broadcasting Authority had decided to recommend to the Chief Executive in Council that the company's application to operate a community radio service be rejected. It said that the grounds for the recommendation were that: “…given that radio spectrum is a valuable community resource [the company] has not demonstrated that its technical proposal on the use of radio frequency spectrum is feasible nor has [the company] demonstrated its management, financial, technical capability to manage a sound broadcasting service.” It asked the Branch to forward its recommendation to the Chief Executive in Council for consideration. 51.On 16 October 2006, the Branch wrote to the company advising it of the Broadcasting Authority’s recommendation and added its, that is to say the Government’s, views on the matter. It stated that: “The government’s position is that we do not consider there is a need for [community radio] services in Hong Kong.” Hong Kong was a geographically small and compact city and the existing broadcasting services already catered for the public’s diverse needs. There were emerging media outlets such as on-line radio and podcasting. In addition, all FM frequencies had been assigned, although “in theory, some FM frequencies may be identified for low-power broadcasting covering a small localised area,” but “identifying frequencies for such localised coverage will require considerable public resources due to the heat rain and high density of tall buildings in Hong Kong,” and that the deployment of public resources to identify such frequencies was not justified. There were AM frequencies which were unassigned but the reception quality was poor. In any event, were the Government to decide that community broadcasting services should be introduced into Hong Kong, assignment of the spectrum, if available, would depend upon the result of invitations to apply for licences “to ensure that the most meritorious applicants would be awarded the right to use the limited spectrum.” Such spectrum could only be assigned “through a fair, open and transparent process.” 52.The company was invited to respond so that its response to the Broadcasting Authority’s proposed recommendation could be submitted to the Chief Executive in Council. The company availed itself of that opportunity. 53.By letter dated December 2006, the Branch informed the company of the rejection of its application by the Chief Executive in Council. The letter said that:
The charges 54.There were 14 charges:
The magistrate’s findings 55.On 8 January 2008 the magistrate issued his ruling on the constitutional issue. 56.The magistrate held that s. 13C(2) of the Telecommunications Ordinance conferred upon the Chief Executive in Council an unfettered discretion whether to grant or refuse a licence: “What the citizen should be able to know with certainty is the scope of his discretion, of how the Chief Executive in Council will exercise his discretion, what criteria will he base his decision upon, if the citizen complies with all the requirements set out in the ‘Information’ and the ‘Radio Code of Practice’, would he then be granted a licence, if not then why not, will he receive any explanation from the Chief Executive in Council, and whether there is a way to challenge his decision. The law is silent on all these matters.”[6] Furthermore, there was no requirement for the Chief Executive to provide an explanation for a refusal nor was there any provision for a challenge to his decision.[7] 57.He went on to say that “under the premise of legal certainty, I would also include the requirement that the decision-making body of the granting of licences be independent of government. The citizen is entitled to know for sure that the decision-making body will not take into consideration irrelevant facts such as the applicant being associated with a ‘known political activist’ when exercising his discretion. As long as the power rests in the hands of the Chief Executive alone, based upon the recommendation of a body, members of whom were appointed by him, there will always be the possibility and a suspicion that the political views of the applicant was an unspoken reason that the application was refused.”[8] Since the Broadcasting Authority was constituted by three public officers and others appointed by the Chief Executive, the body was not independent and the power to grant or refuse a licence not subject, he found, to any statutory control. He held that the lack of independence was of itself “not in accordance with the requirement that any restrictions on the freedom of expression and speech must be prescribed by law ...”[9] 58.He concluded that since the discretion of the Chief Executive in Council was unfettered and since the decision was entrusted to a body not independent of government, “the restriction on the right to freedom of expression as implemented lacks certainty and is therefore not prescribed by law, and therefore in breach of Articles 27 and 39 of the Basic Law, as well as Article 16 of the Bill of Rights Ordinance and unconstitutional. Since the licensing regime is unconstitutional, it follows that any charges based upon a failure to comply with that [licensing] regime must also be unconstitutional.”[10] Salient evidence 59.Evidence placed before the magistrate included the following relevant to the present issue:
The questions posed 60.The questions of law posed by the case stated for determination by this Court are these:
Jurisdiction and the real issue 61.A preliminary point is taken upon this appeal, namely, that the magistrate had no jurisdiction to consider the constitutional challenge to the licensing scheme prescribed by the Telecommunications Ordinance. It was not a point argued in the court below. 62.The contention is that the challenge thus advanced was to an issue collateral to that in the criminal proceedings and that the Telecommunications Ordinance (‘the Ordinance’), properly construed, does not permit a defendant to a charge under ss. 8 and 20 of the Ordinance to impugn the constitutionality of the licensing procedure by way of defence. It is argued that the correct and only avenue for such a challenge by an applicant who is refused a licence is an application for judicial review. 63.We were treated to an extensive examination of authorities which have addressed the issue whether (and, if so, to what extent) a defendant might raise as a defence to a criminal charge the validity of a decision taken pursuant to statutory authority or whether he was consigned instead to running such an issue in proceedings for judicial review. 64.Although the issue is raised before this Court as a preliminary question, not canvassed in the court below, it arises in any event, so it seems to me, from the final question posed by the case stated. That final question – had it been more appropriately framed – is the one with which the analysis in the court below ought to have commenced. Had it been, and had the correct conclusion been reached, none of the other questions with which the court below or this Court have been burdened would have presented themselves for determination. 65.The final question in the case stated asks whether charges ‘founded upon a failure to comply with [an unconstitutional licensing] regime are also unconstitutional.’ But the charges were not founded on a failure to comply with a licensing regime. There was an application for a licence. That application was lawful and regime-complicit. What was at issue – and, aside from the question whether the respondents had indeed established means of telecommunication or used a transmitting system, it could be the only relevant issue – was whether the respondent company had a broadcasting licence and, if not, whether the offence-creating provision was itself unconstitutional as impermissibly infringing a protected right. If the offence-creating provision is free-standing, in the sense that it survives constitutional scrutiny regardless of the validity of the licensing regime and of the licensing decision, then the remaining issues addressed by the magistrate – and by the case stated – were and are irrelevant. 66.For the purpose only of the constitutional challenge, argument proceeded on the unspoken assumption (though not, of course, upon an admission) that the acts alleged had been committed and had taken place in the absence of a licence. Further, it was accepted in argument before this Court that control of the airwaves by a ban on broadcasting without a licence was of itself a permissible fetter upon the freedom to impart and the right to receive information and opinions. 67.That concession – that the requirement for a licence is a permissible fetter on the freedom of expression – is correctly made. Whilst freedom of expression applies not only to the content of communication, but also to the right to receive and impart it (see Autronic AG v Switzerland[11]; Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation[12]) it could not reasonably be suggested that such a requirement was of itself an impermissible restriction on the freedom of expression. That there is a societal justification for a licensing regime should be obvious from a moment’s contemplation of the chaos, and interference with the rights of others, that would result absent such a regime. 68.That was the point made in Red Lion Broadcasting Co v Federal Communications Commission[13]:
and further that:
See also Observer Publications Ltd v Matthews and others[17]. 69.It must follow that no person has a right to a broadcasting licence. Were it otherwise, the imperative for a regime of control of access to the airwaves would be meaningless. However, there is a right conferred by law in this context, which is a right to fair consideration of an application for a licence and ‘not to have one’s access to public media denied on discriminatory, arbitrary or unreasonable grounds’ (see: R v Prolife (Alliance) v BBC[18]) or on any other grounds that fall foul of the constitutional protections afforded by the Basic Law. 70.Given that the requirement for a broadcasting licence is a permissible fetter on the freedom of expression, and that there is no right to a licence, it is difficult to see, in the context of the magistrate’s remit to determine the charges of establishing or otherwise operating means of telecommunications without a licence, and of the specific legislation under consideration, upon what basis it was relevant for him to determine whether the discretion of the Chief Executive in Council to grant or refuse a licence was prescribed by law. 71.The examination to which I have referred, of cases directed to the issue whether magistrates have jurisdiction in criminal proceedings to determine the validity of an act done under statutory authority, is in the event of limited value to the present case, because we are not in my judgment concerned in this case with the validity of such an act. That is because the legality of a decision to refuse a broadcasting licence has no bearing upon the constituent elements of the offence with which the respondents were charged. A summary of those cases will suffice to illustrate the circumstances in which the legality of an administrative decision might properly fall for the determination of a magistrate in criminal proceedings, thereby to contrast the present case. 72.In Quietlynn Ltd v Plymouth City Council[19] criminal proceedings were instituted by a number of local authorities against a company, alleging that the company had been using premises as sex establishments without a licence contrary to the provisions of a schedule to the Local Government (Miscellaneous Provisions) Act 1982. That Act empowered a local authority to determine, by resolution, that Schedule 3 to the Act would apply to its area. Schedule 3 constituted a statutory code for the control of sex establishments by means of licensing. Three local authorities resolved that the Schedule should apply to their area. In each area the company had been using premises as sex establishments before the Schedule was applied. The Schedule contained provisions for the grant of licences and stipulated grounds for their refusal, as well as a right of appeal to the magistrates’ court against a refusal. 73.Para. 28(1) of the Schedule provided that a person who had been using premises as a sex establishment before the Schedule came into effect in the relevant area and who had applied for a licence before an appointed day could lawfully continue to use the premises as a sex establishment until the determination of the application. 74.The local authorities refused the company’s applications; but the company continued to use the premises as sex establishments and the criminal proceedings were, therefore, launched. The justices convicted the company of the offences charged but, on appeal, the Crown Court allowed the appeals in two cases on the basis that the refusal of a licence by the relevant local authority was invalid since the local authority had, the Court found, breached specified procedural requirements and the rules of natural justice. The local authorities appealed to the Divisional Court of the Queen’s Bench Division. One of the arguments before that Court has been echoed before us. It was said that it was a vital ingredient of the offence that there had been a valid determination of the application for a licence.[20] In our case, it is said that the offence-creating provision presupposes the existence of a lawful licensing regime. 75.It was held, allowing the appeals of the Councils, that absent a decision upon judicial review that the local authorities’ decisions were invalid, the decisions were to be presumed to be validly made and that upon a prosecution for an offence of using premises as a sex establishment without a licence, neither the justices nor the Crown Court had jurisdiction to consider the validity of a refusal of a licence. The Court took the view that the issue before it was one that could be determined “by a proper construction of [the statutory] code”[21] and that the construction contended for by the Crown Court would frustrate the clear policy of that code. The Court concluded that if a bona fides challenge to the validity of such a decision were raised before justices, the proceedings should be adjourned to enable an application for judicial review to be made and determined and that:
76.There are two observations to be made:
77.Within months of the decision in Quietlynn, the Divisional Court revisited the issue, this time in relation to challenges to the validity of byelaws. In R v Reading Crown Court ex parte Hutchinson[25], it was held that the magistracy had authority, indeed was bound, to inquire into the validity of byelaws if their validity was raised by way of defence to a charge of contravening the byelaws, and that the procedure for judicial review had not removed the right of a defendant to raise the question of the validity of a byelaw under which he was being prosecuted. The byelaw in question was said by the defendants to be in breach of a statutory proviso that no byelaws were to be promulgated under the relevant statutory provision, prohibiting entry over a protected area, if they prejudiced any right of common. Because the byelaws in question were not invalid on their face, the Crown Court, seeking to follow Quietlynn, adjourned the prosecutions so that the validity of the byelaws might be determined on an application for judicial review. Lloyd LJ (with whom Mann J, a member of the Quietlynn court, agreed) said that he found Quietlynn ‘a difficult case’,[26] though no doubt fully justified on its facts. He held, referring to a long line of cases in which magistrates had determined the validity of byelaws, that:
78.In support of his approach, Lloyd LJ referred to the decision of the House of Lords in Wandsworth London Borough Council v Winder[28] that, as he summarised their Lordships finding,
This principle held good, he said, for criminal proceedings as it did for civil.[30] 79.The defendant in R v Wicks[31] had been served by a local planning authority with an enforcement notice to rectify building works which he had carried out. He failed to comply with the notice and was prosecuted for that failure. The notice was properly served and was valid on its face but he sought in the criminal proceedings to challenge the service of the notice on the basis that the local authority had not genuinely considered whether, as the statute required, it was expedient to serve it. The judge at trial refused to permit him to challenge the propriety of the decision to serve the notice. 80.Lord Nicholls identified two avenues of potential challenge to the lawfulness of an order or byelaw or statutory notice. The first is a contention that the impugned order was ultra vires as having been made in terms not authorized by the statute; and the second that the impugned order was not validly made because the decision-making process was vitiated on public law grounds[32]. 81.Lord Hoffmann identified the correct approach as one of statutory construction. Whether a defendant in criminal proceedings was entitled to challenge the vires of an act done under statutory authority where “it’s validity forms part of the prosecution’s case or its invalidity would constitute a defence,” (emphasis added) depended “entirely upon the construction of the statute under which the prosecution was brought.” He continued:
82.So, in that case the question was the meaning of “enforcement notice” in the relevant statutory provision:
83.He held that on a true construction of the Act in question, ‘enforcement notice’ meant a notice issued by the planning authority which on its face complied with the requirements of the Act and had not been quashed upon the appeal procedure prescribed by the Act or by judicial review.[35] 84.Finally, for present purposes, there is Boddington v British Transport Police.[36] Mr Boddington smoked a cigarette in a railway carriage that carried a conspicuous notice which prohibited smoking. The Transport Act 1962 empowered the Railways Board to make byelaws with respect to smoking in railway carriages and the byelaw in question prohibited smoking in a carriage where such smoking was expressly prohibited by a notice exhibited in a conspicuous position. The suggestion was that the administrative decision by which the Board posted such notices was ultra vires its powers to bring the byelaw into operation. At issue was the extent to which ‘a defendant to a criminal charge laid under subordinate legislation can argue by way of defence that the subordinate legislation, or an administrative act bringing that legislation into operation … was itself ultra vires and unlawful.’[37] 85.Lord Irvine LC pointed out[38] that:
And later[39]:
86.The effect of these authorities has been summarized by Lewison J in Bunney v Burns Anderson Plc.[40]:
This case 87.There was in this case no byelaw or regulation the breach of which was an ingredient of the offence with which the respondents were charged. So no question of the vires of a byelaw or regulation arose for determination. 88.There was in this case no notice or order issued the validity of which order or notice might therefore be relevant as a defence to a charge of breaching the order or notice. 89.There was in this case no act done under statutory authority the validity of which act formed part of the prosecution case. Neither the decision to refuse a license nor any act done or omitted to be done in consequence of that decision constituted a necessary ingredient of the offence charged. 90.The only relevant issues in the prosecutions that were launched were these:
91.The refusal to issue a license did not, as it did in Quietlynn, have the purported effect of taking away a right in law that the applicant had previously enjoyed. That is because the provisions of the Basic Law and of the Bill of Rights Ordinance which guarantee freedom to impart and to receive ideas cannot, if given a purposive interpretation, and for reasons I have earlier provided, confer an unfettered right on individuals to avail themselves of broadcasting frequencies. 92.Evidence was adduced in this particular case that users of radio frequency spectrum in Hong Kong include the police, fire and ambulance services and the Civil Aviation Department. Unrestricted access to that spectrum would run a cogent risk of interfering with those vital services as well as of interfering with the rights of listeners to existing regional and international radio stations. It is no doubt in recognition of the scarce resource that is constituted by the radio spectrum, of the potential for chaos presented by unrestricted access to that spectrum, and of the infringement of the right of others to impart and receive information that would result from unregulated access, that the respondents accept that there can be no right to the airwaves, and that the requirement of s. 8 that broadcasting shall only take place where licensed is not an infringement or an unjustifiable infringement of any of the guaranteed rights with which this case is concerned. 93.That being the case, it is impossible, in my judgment, reasonably to construe the offence-creating sections in this case (s. 20 read with s. 8) as permitting the establishment of a telecommunication system or its use if such licensing system as is in place is in some material respect not prescribed by law; or as permitting broadcasting if the decision-making process by which a particular licence has been refused is, or might be shown to have been, unlawful on one or more public law grounds. 94.A proper construction of ss. 8 and 20 of the Ordinance is one that recognizes that it must have been the legislature's intention that the legality of a licensing decision or of an aspect of the licensing scheme at any given time was not a necessary ingredient of the offence. It would be as unrealistic and non-contextual to suggest that, as it would to contend that in enacting a provision that prohibited the driving of a motor vehicle without a licence, the legislature intended that it would be a defence to a charge of driving without a licence to show that, upon a driving test, the driving examiner ought not to have refused the examinee his full licence or to show that the criteria for granting driving licences were insufficiently precise to meet the test of prescription by law. 95.It must follow that it was the legislature’s intention that if an applicant for a broadcasting licence wishes to attack the statutory licensing system, or a licensing decision, he must do so once he has made an application and has received a response which might be impugned at law. In a prosecution for an offence under ss. 8 and 20 of the Ordinance, it is not open to a defendant to raise by way of defence the legality of a licensing decision or of the licensing scheme. Any other construction would, in my opinion, be contrary to the clear policy of the legislative scheme as a whole. 96.As Cheung J emphasizes in the judgment which follows, none of this is to suggest that it is not open to a defendant to challenge, as a defence to a charge, the constitutionality of the offence-creating provision directed against him. To the contrary, it is always open to a defendant to do so as has been illustrated in a number of instances in this jurisdiction.[42] It is merely to say that in this case the constitutionality of the offence did not depend on the validity of the licensing regime and it is in assuming that it did that the magistrate went wrong. 97.There has been some suggestion that since only a corporation may apply for and be granted a licence to establish and maintain a broadcasting service[43], it is of scant use to tell prosecuted defendants who are not corporations – as is the case with most respondents to this appeal – to seek their remedy by an application for judicial review. The answer to that argument is that once it is accepted that the legality of a licensing decision or of the scheme as whole is not an ingredient of the offence under ss. 8 and 20, the point does not arise. 98.It follows that the question of legal certainty which is the theme of the case stated is a question that did not arise in the case which the magistrate had to try. If, however, one allows oneself to be drawn into the questions posed at all, the only question that requires answering to dispose of this appeal is the last. That question asks whether, given the finding that the licensing regime was unconstitutional it followed that any charges “founded upon a failure to comply with that regime are also unconstitutional?”. The answer I would give to that question is No; because even supposing that the premise was correct (that the regime is unconstitutional), the offence-creating provision did not engage the legality of the licensing regime. 99.Accordingly, I would set aside the order of the magistrate whereby he dismissed the charges and remit the case to him to determine them in accordance with law. The remaining questions 100.We were invited by the parties, including the appellants, to address the remaining questions posed by the case stated even were we to hold that the offence-creating provision was self-standing and lawful. 101.In deference to the arguments presented and in order to deal with some of the conclusions of a general nature reached by the magistrate, there is a temptation to accept the invitation. However, the suggested course presents a number of problems. 102.It is not clear to me whether we were being asked to proceed on an assumption that the constitutionality of the scheme as a whole was an essential ingredient of the offence. If so, it is, for a number of reasons, an unattractive course to adopt. It makes an assumption which, in my opinion, is palpably untenable. It would, moreover, require us to engage in an abstract exercise that would involve a deep and lengthy analysis which would, given the primary conclusion, result in a non-binding conclusion. Further, the question of constitutionality has been limited in argument to an examination of the requirement that restrictions on fundamental freedoms be prescribed by law. There has been no analysis of other questions that would need to be examined were that condition satisfied (as to which I here express no opinion) including the question of proportionality. 103.If, on the other hand, we were invited to proceed with the remaining questions upon an examination of the instant case – which is to say, whether the particular grounds upon which the licence was refused in this case were prescribed by law – that would be an appropriate exercise if this were a judicial review of the decision made. But, as I have been at some pains to emphasize, this is not such a review nor an appeal from such a review; and, in any event, the identification of those grounds in this case is itself, in my judgment, a question susceptible to argument. 104.It seems to me in the circumstances that this is not a satisfactory basis upon which to embark upon an exercise in addressing the remaining questions. Two discrete issues 105.There are, however, two discrete issues which we can, in my opinion, usefully address, lest the conclusions of the magistrate on the points were to gain currency. They are the subject matter of the second and third questions. 106.The second question[44] asks whether the magistrate erred in finding that the fact that the decision maker was not independent of the Government constituted an arbitrary restriction on the freedom of expression and was a restriction not prescribed by law. The answer, in my judgment, is Yes, the magistrate erred. 107.The requirement that a restriction upon a right be prescribed by law is a requirement not merely that there be some basis in domestic law for the restriction but that the relevant law be sufficiently specific, according to the degree of specificity that the context reasonably permits, to enable the citizen, if appropriate with the benefit of advice, to foresee with reasonable certainty the consequences of a given action, to know what the rules are and how he might lawfully conduct himself in the light of those rules and, at least as importantly, in my judgment, so that the person to whom power is entrusted knows the legitimate limits of that power. See Leung Kwok Hung v HKSAR[45]. 108.It follows, as an aspect of the principle of contextual and reasonable certainty, that where the law confers a discretion upon a public official to exercise a power, that law must indicate the scope of that discretion with clarity: Malone v United Kingdom.[46] The degree of precision required depends upon the subject matter: Sunday Times v United Kingdom[47]. In this regard and in the context of a broadcast licensing application, the European Court of Human Rights has emphasized in Glas Nadezhda Eood v Bulgaria[48] that:
109.Once the scope and intent of the requirement that a restriction be prescribed by law is understood, it should readily be appreciated why the issue of independence of the decision maker was not to the point. 110.There are no doubt those who take the view that the preservation of freedom of expression is better enhanced by entrustment of the broadcasting sector to an independent regulatory authority. But whether, as a matter of policy, it is desirable for the decision maker in this context to be an independent one is not for us to consider, nor was it a question for the magistrate. That is because independence has nothing to do with the requirement of prescription by law. It may be that, in a particular case, the fact that a decision is not made by an independent body will assist in showing that there has been unfairness or bias such as will found a basis for public law relief, but that cannot mean that a law, no matter how specific in its delineation of the rules and the limits of power and the protection of rights, becomes one that is not prescribed by law simply because the decision making body is not independent of the Government. Statutes in this jurisdiction are replete with instances where administrative decisions that touch upon the individual and upon fundamental freedoms are entrusted to agencies of Government. Often that is the natural and sensible home for such decision-making. The entrustment of a broadcasting licensing system to a government organ is not a matter that of itself sits ill with the preservation of freedom of expression. Whether the power of the entrusted body is sufficiently circumscribed to protect that freedom or whether there is abuse of that power, as there was in Observer Publications, is a different issue. What is important is that the legality of decisions of governmental bodies is subject to the review of independent and impartial tribunals. No one suggests in this case, nor could it be suggested, that broadcast licensing decisions made under the Telecommunications Ordinance are not subject to such review. 111.The third question[49] is whether the magistrate erred in holding that the absence of a statutory right of appeal from the decision of the Chief Executive in Council in refusing an application for a broadcasting licence is contrary to the principle of legal certainty. I fail to see the connection between the two; and the answer to this question is Yes, the magistrate erred. I should add that although the question posed does not itself touch upon the failure of the Telecommunications Ordinance to state in terms that reasons for a decision must be provided, a matter that concerned the magistrate, the common law requirement of fairness quite obviously demands in the present statutory context that the decision maker must give reasons for any refusal of a licence application. The relevant question 112.I return therefore to the fifth (and final) question[50], the answer to which, in my judgment, suffices to resolve the appeal. 113.The fifth, and final, question is whether the magistrate erred in ruling that because he found the licensing regime to be unconstitutional, that charges “founded upon a failure to comply with that regime” were also unconstitutional. 114.For the reasons I have provided, the answer to this question is that the magistrate erred in treating the constitutionality of the licensing regime as an essential element of the offences of which the respondents were charged and, in consequence of this error, he further erred in holding that the relevant offence-creating provisions were unconstitutional. 115.It follows that it was unnecessary for the magistrate to ask himself, or to pose to us, the remaining questions and, for the reasons I have offered, I do not think it appropriate to deal with them, save only to the extent that I have touched upon two issues that merit discrete attention.[51] Conclusion 116.Accordingly, I would allow the appeal, set aside the order by which the magistrate dismissed the charges, and remit the case to the magistrate’s court for resumption of the trial in accordance with law. 117.I would make an order nisi that the costs of this appeal be paid by the respondents to the appellant, to be taxed if not agreed. Hon A Cheung: 118.I agree with the judgment of Stock JA and would like to add a few words of my own. 119.The constitutional rights guaranteed under art 27 of the Basic Law and art 16 of the Hong Kong Bill of Rights are not absolute. Art 39(2) allows restrictions that are ‘prescribed by law’. Further, art 16(3) provides that exercise of the rights provided for in art 16(2) may be subject to restrictions that are ‘provided by law’ and are ‘necessary’ for the respect of the right of others, or for the protection of national security or of public order (ordre public), or of public health or morals. 120.When a statute sets up a licensing regime for broadcasting the regime constitutes a restriction on one’s rights under art 27 of the Basic Law and art 16(2) of the Hong Kong Bill of Rights. The restriction, to be constitutionally valid, requires justification in terms of art 39(2) of the Basic Law and art 16(3) of the Hong Kong Bill of Rights. 121.Moreover, the refusal of a licence application according to the particular circumstances of an individual case by itself also constitutes a restriction on the exercise of the rights under discussion. That restriction also requires justification in terms of art 39(2) of the Basic Law and art 16(3) of the Hong Kong Bill of Rights, apart from the fact it may be challenged on other standard public law grounds. 122.When the statute goes on to create a criminal offence against the exercise of the rights in the absence of a licence granted under the licensing regime set up in the statute, the offence so created by itself also constitutes a restriction on those rights. And that restriction likewise requires justification in terms of art 39(2) of the Basic Law and art 16(3) of the Hong Kong Bill of Rights. 123.Therefore, in the prosecution of the offence, the accused may always challenge the constitutionality of the offence itself as being an unjustifiable restriction on his rights under art 27 of the Basic Law and art 16(2) of the Hong Kong Bill of Rights. But it does not follow that he can put in issue the constitutionality of the restriction represented by the licensing regime or that by the refusal of a licence (if one has been applied). Whether he may do so depends entirely on whether, on the proper construction of the offence, its essential elements include the constitutional validity of the licensing regime and/or the refusal of a licence in question. 124.In other words, if, on its proper construction, the offence prohibits broadcasting etc in the absence of a constitutionality valid licence granted under a constitutionally valid licensing regime, the accused will be quite entitled to put the constitutionality of the licensing regime or the refusal of a licence in the particular case in issue. But not otherwise. 125.For the detailed reasons given by Stock JA in his judgment, I have no doubt that in the present case, the constitutional validity of the licensing regime does not constitute an essential ingredient of the offence under s 20 as read with s 8(1) of the Telecommunications Ordinance. In other words, whether the licensing regime is a constitutionally justifiable restriction on the rights under art 27 of the Basic Law and art 16(2) of the Hong Kong Bill of Rights or whether it amounts to an unjustified restriction is immaterial to the case that the prosecution has to prove. So for that reason, the magistrate should not have gone into it at all. 126.Likewise, I am satisfied, for the reasons explained by Stock JA that the constitutionality of the refusal of a licence in a particular case is not something that the prosecution needs to establish. For that reason, it is also not a matter that a magistrate need or should go into. 127.In other words, it is quite plain, as a matter of legislative intent, that regardless of the constitutional validity of the licensing regime and/or the refusal of a licence in question, the legislature intends to prohibit broadcasting etc in the absence of a licence from the Chief Executive in Council. 128.However, that does not mean that no issue of constitutionality arises or can arise. As said, the offence, by itself, constitutes a restriction, on the pain of criminal sanction, on the rights guaranteed under art 27 of the Basic Law and art 16(2) of the Hong Kong Bill of Rights. This restriction, like any other purported restriction on a non-absolute constitutional right, requires justification in order to be lawful and valid. The criteria for justification, in the present case, are found in art 39(2) of the Basic Law and art 16(3) of the Hong Kong Bill of Rights. 129.In other words, the constitutionality of s 20 of the Ordinance does require consideration. But the consideration required is quite different from the consideration that would have been required to determine whether the licensing regime and/or refusal of a licence in a given case are justifiable constitutionally if their constitutional validity had been an essential element of the offence. 130.The justification required in relation to the offence itself as a restriction is to be determined by asking whether it is ‘prescribed by law’ and whether:
The latter is generally known as the proportionality test (or the justification test in the context of inequality in treatment). 131.Remembering firmly that one is now looking at the offence itself as a restriction on rights, the ‘prescribed by law’ requirement is without doubt satisfied. 132.The legitimate aim that such restriction seeks to serve is plain. Without s 20, maintenance of essential communications would be jeopardized; there would be chaos and rights of others would be unduly affected. Prevention of these matters falls easily within those aims that are allowed under art 16(3) of the Hong Kong Bill of Rights. 133.Again plainly, there is a rational connection between the offence, which essentially prohibits broadcasting without a licence, and the prevention of chaos and undue interference with others’ rights and so forth. 134.The restriction is also no more than is necessary to accomplish the aim. Indeed, given that licensing is the only way out when demand greatly exceeds supply, prohibition, backed by criminal sanction, of broadcasting in the absence of a licence from the Chief Executive in Council is no more than a necessary step to take. The criminal sanction appears to be proportionate to the importance of the interests at stake. Even if the current licensing regime were defective constitutionally in some aspect and rectification were required, the restriction, in the form of the offence, would still be necessarily required to achieve the legitimate aim pending rectification. (Indeed these considerations also constitute important reasons for construing, in the first place, s 20 as being independent of the constitutional validity of the underlying licensing regime or refusal of a licence.) 135.For those reasons, s 20 as a restriction itself of the rights guaranteed under art 27 of the Basic Law and art 16(2) of the Bill of Rights is constitutionally justified. 136.In my view, that is the only issue of constitutionality about s 20 that the magistrate should have looked into. And had he done so, the answer would have been obvious to him, as it is to me. 137.For these reasons, the appeal must be allowed. Hon Ma CJHC: 138.Accordingly, the appeal is allowed, the order of the magistrate by which he dismissed the charges is set aside and the case is remitted to the magistrate for resumption of the trial. There will be a costs order nisi that the costs of this appeal be paid by the respondents to the appellant, to be taxed if not agreed.
Mr David Pannick, QC, MrKevin Zervos, SC, DDPP, MrSimon NM Young & Ms Winnie Ho, SADPP (Ag) for the Appellant D1, in person, represented by Mr Lo Hom-chan D2 – in person D3 – in person MrPhilip Dykes, SC and MrStanley Ma instructed by M/s K.M. Cheung & Co., assigned by DLA for D4 MrMartin Lee, SC, MrWong Hin-lee and MrLee Siu-him instructed by M/s Ho, Tse, Wai & Partners, assigned by DLA for D5 D6 – in person [1] para 10 Case Stated. [2] para 74 Case Stated. [3] (1990) 12 EHRR 321, 338-339 para [60]. [4] sections 13A to 13M inclusive. [5] under “Telecommunication Ordinance” p 4. [6] Ruling, para 27. [7] Ruling, para 27. [8] Ruling, para 29. [9] Ruling, para 33. [10] Ruling, para 36. [11] (1990) 12 EHRR 485, 499 [47]. [12] 1995 (9) BCLR 1262. [13] 395 U.S. 367 (1969). [14] at 376. [15] ‘Congress shall make no law … abridging the freedom of speech …’ [16] at 387 – 390. [17] (2001) 10 BHRC 252 at 266 [49]. [18] [2004] 1 AC 185. [19] [1988] Q. B. 114. [20] see counsel’s argument at 123 E-F; and judgment at 128B. [21] at 129A. [22] at 131 E-F. [23] Hutchinson, below. [24] at 128B [25] [1988] Q.B. 384. [26] at 394C. [27] at 395B-C. [28] [1985] A.C. 461. [29] at 392H. [30] at 395B. [31] [1998] A.C. 92. [32] at 104. [33] at 117C-D. [34] at 119A-B. [35] at 122F-G. [36] [1999] 2 AC 143. [37] at 150H-151A. [38] at 152F-H. [39] at 161F- 162H. [40] [2007] EWCH 1240 at [47], Ch D. [41] [1983] 2 AC 237; in which it was held that it would normally be an abuse of process to proceed by way of ordinary action, rather than by an application by judicial review, in order to attack the legality of an administrative action. [42] see, for example, Leung v Secretary for Justice [2006] 4 HKLRD 216; and HKSAR v Ng Kung Siu (1999) 2. [43] ss. 13B and 13F Telecommunications Ordinance. [44] Numbered (1)(ii) in the case stated : para. 60 above. [45] (2005) 8 HKCFAR 229. [46] (1984) 7 EHRR 14, 41. [47] (1979) 2 EHRR 245 para [49]. [48] (2007) 23 BHRC 239, para [46]. [49] Numbered 1(iii) in the case stated : para. 60 above. [50] Numbered (3) in the case stated : para. 60 above. [51] Paragraphs 105 to 111 above |
Cases cited in this judgment
Further hearings and rulings under HCMA 173/2008