Ocean Technology Ltd t/a Citizens' Radio and Another v. Secretary for Justice
Read the full judgment text of HCAL 17/2008 on BabelCite. This High Court CFI judgment was delivered on 23 January 2009.
1. The sole issue before me is: “Can a magistrate suspend the effect of his determination that a law is unconstitutional pending an appeal against that determination?”
Cited by 1 case · Cites 5 cases
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HCAL 17/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 17 OF 2008 ----------------------
---------------------- Before: Hon Reyes J in Court Date of Hearing: 21 January 2009 Date of Judgment: 23 January 2009 ---------------------- J U D G M E N T ---------------------- I. INTRODUCTION 1.The sole issue before me is: “Can a magistrate suspend the effect of his determination that a law is unconstitutional pending an appeal against that determination?” 2.When the Applicants brought this judicial review, the magistrate had found that charges against them for making radio broadcasts without a licence were premised on an unconstitutional licensing regime. The magistrate reasoned from this that the charges could not be maintained. But he allowed an appeal by case stated, suspending the effect of his determination on the constitutionality of the licensing regime pending the appeal. 3.The judicial review was brought to quash that latter decision to suspend the effect of the determination on constitutionality. 4.The case stated was heard by the Court of Appeal (CA). In December 2008 it held that the magistrate had erred in thinking that the constitutionality of the licensing regime was relevant to the validity of the charges. The case was remitted to the magistrate to proceed with the trial of the charges. 5.As a result, this judicial review application can serve no practical purpose as far as the Applicants are concerned. If they obtain leave to appeal against the CA’s decision and succeed on appeal, the Court of Final Appeal (CFA) will simply restore the magistrate’s determination. The CFA’s decision being final, there will be no question of suspending anything pending some other decision. 6.Nonetheless, the issue here is a discrete point of law. The question may arise in the future. The Applicants and the Government have presented detailed submissions on the matter. In those circumstances, I think that I should in my discretion deal with the question. See Chit Fai Motors Co. Ltd. v. Commissioner for Transport [2004] 1 HKC 465 (CA) (at §§20(2) and (3) (Ma CJHC)) on the determination of matters which have become “hypothetical or academic only because the real dispute that drove the parties to litigation ... happens no longer to be in existence at the time of the hearing”. II. BACKGROUND 7.Between mid-2005 and mid-2006 Ocean Technology engaged in radio broadcasts without a licence. For this it was charged with others for contravening Telecommunications Ordinance (Cap.106) (TO) ss. 8 and 20. Mr. Poon was charged with Ocean Technology. 8.In January 2008 the magistrate held that the licensing regime under the TO was contrary to the Basic Law and so unconstitutional. He concluded from this that any charges based upon a failure to comply with the licensing regime must be invalid. He dismissed the charges. 9.But, upon the Government’s request for a review, the magistrate overturned his dismissal of the charges and adjourned the proceedings pending an appeal by way of case stated. Further, he suspended the effect of his determination of unconstitutionality for 1 month. He cited Magistrates Ordinance (Cap. 227) (MO) s.20(1) as the source of the jurisdiction to impose a suspension. In February 2008 he extended the suspension. 10.On 12 December 2008 the Court of Appeal found that the magistrate had been wrong to dismiss the charges. The Court held that the constitutionality or otherwise of the licensing regime was irrelevant to the charges. It concluded that the magistrate had erred in believing that charges based on TO ss.8 and 20 were invalid as a result of any deficiency in the licensing regime. III. DISCUSSION 11.In my view, the answer to the question posed at the outset must be “yes”. 12.In Ng Ka Ling v. Director of Immigration (1999) 2 HKCFAR 4 (at 25G-J) Li CJ observed that HKSAR courts “at all levels” (that is, including the magistrates’ court) are “bound to hold that a law or executive act is invalid at least to the extent of [an] inconsistency [with the Basic Law].” 13.A similar jurisdiction is conferred on magistrates and other Courts and tribunals by Hong Kong Bill of Rights Ordinance (Cap.383) (HKBORO) s.6(1). That provides:-
14.In Koon Wing Yee v. Insider Dealing Tribunal [2008] 3 HKLRD 372 (at §113), Sir Anthony Mason NPJ stated in relation to HKBORO s.6(1):-
15.A corollary of the jurisdiction to hold a law to be unconstitutional must be the power to suspend the effect of such determination pending an appeal against it. 16.This was explicitly recognised in Koo Sze Yiu v. Chief Executive (2006) 9 HKCFAR 441 in the context of courts (such as the High Court) having an inherent jurisdiction. There Bokhary PJ stated:-
17.As the creation of statute, the magistrates’ court would not normally have an inherent jurisdiction at common law. But, for similar reason to that identified by Bokhary PJ in relation to Courts having an inherent jurisdiction (that is, to enable the legal system to function effectively), the power to suspend should be an implied power of statutory courts or tribunals. 18.More particularly, the power to suspend ought to be implied because it is “reasonably required” for the effective exercise of the jurisdiction to hold a law to be unconstitutional. See PCCW-HKT Telephone Ltd. v. Telecommunications Authority (2005) 8 HKCFAR 337 (at §60 (Ribeiro PJ)) on “reasonable requirement” as the test for implying a power. 19.Without such power to suspend, one can readily imagine situations where between (say) a magistrate’s decision on unconstitutionality of a law and the hearing of an appeal against that decision, persons take it upon themselves to contravene the law held to be unconstitutional. Much unfairness, injustice and possibly chaos might then ensue, especially where subsequently a higher court holds that the magistrate was wrong in his determination of unconstitutionality. 20.Mr. Philip Dykes SC (appearing for Mr. Poon) submits that a power to suspend would not reasonably be required by a magistrate for the effective exercise of his jurisdiction under the MO. This is because (according to Mr. Dykes) a magistrate’s decision does not bind anyone. The magistrate being at the bottom of the judicial hierarchy, his determination on a constitutional issue has no precedent effect. Other Courts and indeed other magistrates (Mr. Dykes suggests) would be entitled to reach a different conclusion on any like constitutional challenge. 21.I cannot accept Mr. Dykes’ submission. 22.First, I think Mr. Dykes discounts the practical influence which a magistrate’s decision may have, even if the determination does not formally have binding effect. The rule of law means that persons exercising an adjudicative function should strive to treat like cases in a like manner. One should only deviate from the decision of another judicial officer for cogent reason. Therefore, at the very least, the decision of a magistrate, especially one as widely reported as that here, would have persuasive value on persons exercising an adjudicative function. 23.Second, carried to its logical conclusion, Mr. Dykes’ submission would potentially lead to disorder. 24.One can envisage a situation where (say) radio broadcasters (all acting without a licence) appeared before different magistrates with different results: some following the magistrate here; some reading the TO down in one way to avoid some perceived unconstitutionality; others reading the TO down in another way for similar reason; and yet others holding that the licensing regime was constitutional after all. 25.What then would be the position in relation to radio broadcasting? Who would be entitled to broadcast when on which particular frequency of the spectrum? It may be an intolerable situation if a magistrate who found a licensing regime to be unconstitutional could not in a proper exercise of his discretion stay his determination pending clarification of the true position by a higher court. 26.Given a risk of disorder where particular types of laws are held to be unconstitutional by a magistrate, it must be reasonable in order to ensure the effective functioning of society and the legal system, to infer a power to suspend pending clarification by a higher court. 27.Note that here, in ordering a suspension of his determination, the magistrate explained that he did so to avoid a possibly deleterious effect on the community. He said:-
28.Thus, in my view, a magistrate has an implied power to suspend a determination of unconstitutionality where the proper administration of justice so requires. 29.So far I have referred to an implied power to suspend. The magistrate in the present case invoked MO s.20(1) as conferring a jurisdiction to suspend. That section provides:-
The magistrate suspended the effect of his determination that the licensing regime was invalid pending an adjournment for the question to be considered on appeal. 30.Mr. Dykes argues that MO s.20(1) only confers an “ancillary” jurisdiction. The provision is not (Mr. Dykes contends) so wide in scope as to give a power to suspend in the circumstances here. According to Mr. Dykes, the section is limited to more routine matters “connected with the defendant’s further appearance or the mode of trial”. Mr. Dykes reads s.20(1) as being subject to MO s.19 which deals with proceedings at hearing. 31.I think that it would be preferable to treat the magistrate’s power to suspend as a corollary (“concomitant”) of his power to declare a law unconstitutional. 32.But, in the alternative, contrary to Mr. Dykes’ submission, it seems to me that MO s.20(1) could be a proper source of the jurisdiction to suspend. I see nothing in the general words of MO s.20(1) which constrains one to construe the provision in the limited manner which Mr. Dykes advocates. 33.Mr. Dykes faintly argues that a magistrate cannot do what was done here because a magistrate has no jurisdiction to make a declaration. Not having a power to declare, he cannot (the argument runs) suspend a declaration. 34.I do not think that there is much substance in this point. One should not become overly engrossed in an arid distinction between a declaration and a determination. 35.Regardless of whether or not a magistrate has a power to make a declaration, here he undoubtedly determined that the licensing regime and offences predicated upon it were unconstitutional. There can be no question that he was so empowered to make a determination of unconstitutionality. That being the case, he must have had an implied power to suspend the effect of the same pending the hearing of the case stated. 36.I stress, for the avoidance of doubt, that all I have decided in this Judgment is that the magistrate has power to suspend a determination of unconstitutionality, pending an appeal against that determination. Whether a magistrate in a particular case has exercised such power rightly or wrongly is a wholly different question. 37.Thus, take an example which Mr. Leung Kwok Hung (appearing for Ocean Technology) raised in oral submission. Assume a magistrate simply suspends the effect of his determination for 100 years. In such case, there may well be a basis for judicial review of that particular suspension on the ground of a lack of proportionality or of unreasonableness. But, the mere possibility that a power may be exercised wrongly cannot be (contrary to what Mr. Dykes seemed to suggest) an argument against the existence of the power. IV. CONCLUSION 38.By way of relief, Mr. Dykes seeks leave to amend the Notice of Judicial Review to seek the following remedy:-
39.Given my decision that the magistrate had jurisdiction to suspend the effect of his order, the proposed amendment is inapposite. Leave to amend is therefore refused. 40.The judicial review is dismissed. There will be an Order Nisi that the Applicants pay the Secretary for Justice’s costs, such costs to be taxed if not agreed, with certificate for 2 counsel. Mr. Poon’s own costs are to be taxed in accordance with Legal Aid Regulations.
1st Applicant in person represented by Mr. Leung Kwok Hung Mr Philip Dykes, SC, instructed by Messrs K M Cheung & Co., for the 2nd Applicant Mr Benjamine Yu, SC and Mr Kevin Zervos, SC, SADPP, instructed by the Department of Justice, for the Respondent |
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