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 Date of Hearing: 20 January 2009 Date of Judgment: 20 January 2009 ------------------------ J U D G M E N T ---------------------- Hon Stock JA (giving the judgment of the Court): 1.On 12 December 2008 we handed down judgment in this case. 2.The respondents to that appeal now seek certificates pursuant to the provisions of section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, that certain points of law of great and general importance, which they identify in their Notices of Motion, are involved in that 12 December decision. 3.The application by some of the respondents is made a few days later than the time required by the relevant practice direction but, given the explanation and the circumstances as a whole, we nonetheless entertain the application. 4.Mr Dykes appears on behalf of the fourth respondent, on whose behalf a set of suggested questions was originally presented but not pursued today. Mr Dykes was minded to substitute a revised list of questions but, on reflection, recognized, we think, that they did not arise from this court’s decision and, in the event, he was content to adopt the questions posed on behalf of the fifth respondent and we proceed accordingly on that basis. 5.The fifth respondent proposes two questions for certification:
6.For reasons we explained in our judgment, the question in the case was whether the offence-creating provision was constitutional and, given the particular subject matter and a proper construction of the particular Ordinance, we do not think that it is arguable that the validity of the offence-creating provision depended upon the validity of the licensing regime as a whole. Mr Lee’s argument, as evidenced in the written submissions, is that the court erred in divorcing the offence-creating provisions from the statutory context. A reading of the judgment would, we believe, reveal that our conclusion was expressly based upon a construction of the Ordinance as a whole (see for example, para 95 of the judgment). Accordingly, we refuse the certification sought by the fourth and fifth respondents. 7.The first, second, third and sixth respondents seek a certificate for questions along similar lines. The suggested points of law of great and general importance that they wish this Court to certify are these:
8.The questions thus posed recognize that the court specifically addressed the constitutionality of the offence-creating provision. We held that it is always open to a defendant to challenge the constitutionality of an offence-creating provision and we addressed the question whether this offence-creating provision was constitutional. It is not a question of not caring whether the licensing regime violates constitutional principles but rather of holding, as a matter of law, that upon a construction of this specific statutory scheme, the constitutionality of that regime was not relevant to the constitutionality of the offence-creating provision. For these reasons, we also decline a certificate in respect of the application of these respondents. 9.We shall move next to the question of costs. [Submissions as to costs of the appeal] 10.We have received submissions on the question of costs. 11.In our judgment of 12 December 2008, we made a costs order nisi that the costs of the appeal be paid by the respondents to the appellant, to be taxed if not agreed. Each respondent now seeks a variation of that order. They say that it would be appropriate to direct that there be no order as to the costs of the appeal by way of case stated. 12.We think that the respondents’ argument is valid. The appeal succeeded upon an approach that was not canvassed by the prosecutor in the court below. Had it been, it may be that the application to state a case would have been quite unnecessary. The respondent was content in the court below to argue the question whether the licensing scheme was such as to fit the requirement that restrictions on the freedom of expression be prescribed by law. Furthermore, the preliminary point taken by the appellant on appeal was a point primarily going to jurisdiction generally of a magistrate to entertain in criminal proceedings a challenge to the legality of an administrative act, a point somewhat different from the precise point identified by this court and which determined the appeal. 13.Accordingly, the order absolute that we make is that there be no order as to the costs of the appeal.
Mr Kevin Zervos, SC, DDPP, Ms Winnie Ho, SPP & Mr Simon Young for the Appellant D1 – in person, represented by Mr Lo Hom-chan D2 – in person D3 – in person Mr Philip Dykes, SC and Mr Stanley Ma instructed by M/s K.M. Cheung & Co., assigned by DLA for D4 Mr Martin Lee, SC, Mr Wong Hin-lee, Mr Lee Siu-him and Mr Lawrence Ngai instructed by M/s Ho, Tse, Wai & Partners, assigned by DLA for D5 D6 – in person Appeal dismissed: see FAMC1/2009 dated 19 May 2009 |
Other judgments that cite this case
Further hearings and rulings under HCMA 173/2008