HKSAR v. SZETO WAH AND OTHERS

HCMA164/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 164 OF 2011

(ON APPEAL FROM ESS NOS. 34781-34785 and 34787 OF 2008)

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BETWEEN

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J U D G M E N T

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1.  The appellants were each convicted of contravening section 23 of the Telecommunication Ordinance, Cap. 106, which alleged that each had, knowing or having reason to believe that a means of telecommunications was being maintained in contravention of the Ordinance, namely being maintained without a licence granted by the Chief Executive in Council or an appropriate licence granted or created by the Telecommunications Authority, delivered messages for transmission by such means of telecommunications.

2.  The preliminary issue raised at the trial was the constitutionality of the Class 3 Offence under section 23, i.e. whether it is contrary to Article 16 of the Hong Kong Bill of Rights (“HKBOR”) as provided in section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383, and Article 27 of the Basic Law of the Hong Kong Special Administrative Region (“the Basic Law”), which collectively guarantee the right to freedom of expression in Hong Kong.  The Chief Magistrate ruled that the Class 3 Offence under section 23 was not unconstitutional.

3.  This is an appeal by way of Case Stated against that decision of the Chief Magistrate.

SECTION 23 AND THE INTERPRETATION SECTION

4.  Section 23 provides :

“Any person who, knowing or having reason to believe that a means of telecommunications is being maintained in contravention of this Ordinance, transmits or receives any message by such means of telecommunications or performs any service incidental to the transmission or reception of any such message or delivers any message for transmission by such means of telecommunications(hereinafter called the class 3 Offence) or takes delivery of any message sent thereby shall be guilty of an offence and shall be liable on summary conviction to a fine of $50000.” [my emphasis]

Section 2(1) of the Ordinance provides, inter alia, that :

“‘communication’ (通訊) includes any communication–

(a) whether between persons and persons, things and things or persons and things; and

(b) whether in the form of speech, music or other sounds; or text; or visual images whether or not animated; or signals in any other form or combination of forms;

…

‘message’ (訊息) means any communication sent or received by telecommunications or given to a telecommunications officer to be sent by telecommunications or to be delivered;

[in Chinese : ‘ “訊息” (message) 指藉電訊傳送或接收的任何通訊，或交由電訊人員藉電訊傳送的或交由電訊人員傳遞的任何通訊’);] and

…

‘telecommunications’ (電訊) means any transmission, emission or reception of communication by means of guided or unguided electromagnetic energy or both, other than any transmission or emission intended to be received or perceived directly by the human eye;

…

‘telecommunications officer’ (電訊人員) means any person employed in connection with a telecommunications service;

‘telecommunications service’ (電訊服務) means a service for the carrying of communication by means of guided or unguided electromagnetic energy or both;

…”

THE MAGISTRATE’S FINDINGS

5.  The Chief Magistrate followed the approach laid down by Sir Anthony Mason NPJ in HKSAR v Lam Kwong Wai [2006] 3 HKLRD 808 (at para. 29).  He found that section 23, and in particular the Class 3 Offence, by itself imposed a restriction over the right to freedom of expression, and thus the restriction was “prescribed by law”.

6.  The Chief Magistrate concluded there is a rational connection between the Class 3 Offence and the legitimate aim of the prevention of chaos and undue interference with others’ rights.

7.  Having weighed this restriction against the important object of regulating the use of the radio spectrum by a licensing system, it is concluded that the Class 3 Offence so created is proportionate to the mischief it seeks to cure, namely, to outlaw acts seeking to promote or encourage unlicensed “pirate” stations in their illegal activities.  The Chief Magistrate concluded that the Class 3 Offence under section 23 was not unconstitutional because it was a justified restriction under Article 16(3) of the HKBOR.

THE QUESTIONS POSED

8.  The questions of law posed for the opinion of this court are :

(1) Did I err in law in finding that, on the evidence, the Class 3 Offence under section 23 has a rational connection with the legitimate aims of preventing chaos in telecommunications and the undue interference with the rights of others, and more specifically, the legitimate aim of legislating “not only against those who seek to avoid the licensing requirements but also against those who seek to promote or encourage unlicensed ‘pirate’ stations in their illegal activities”?  

(2) Did I err in law in finding that, on the evidence and in all the circumstances, the Class 3 Offence under section 23 is necessary and proportionate to the legitimate aims stated above?

PRELIMINARY ISSUES AT THE APPEAL HEARING

9.  The two preliminary issues raised before this court are as follows :

(1) a request that this court do entertain the 1^st appellant’s appeal although he passed away before the hearing of this appeal; and

(2) that leave of this court be granted to allow the appellants to raise one more question of law which is not in the Case Stated, namely :

“Does the class three offence under Section 23 of the Telecommunications Ordinance apply to a person who participates in a programme which he/she knows/has reason to believe would be broadcast (live) by an unlicensed radio station?”

10.  The respondent raised no objection to the fist issue and it can be disposed of shortly.  I rely on the case of HKSAR v Hin Lin Yee [2010] 13 HKCFAR 142, and proceed to deal with the 1^st appellant’s appeal together with the rest of the appellants.

11.  I now deal with the second issue.  Appeals by way of Case Stated are governed by section 105 of the Magistrates Ordinance, Cap. 227 :

“…either party thereto or any person aggrieved thereby who desires to question by way of appeal any conviction, … determination … on ground that it is erroneous in point of law, …, may apply in writing to the magistrate to state and sign a case setting forth the facts and the grounds on which the conviction,…determination was granted and the grounds on which the proceeding is question, for the opinion of a judge…” [my emphasis]

12.  In R v Chow Ha [1956] HKLR 3, Wicks J said :

“… How can a Magistrate state the grounds on which the proceeding is questioned, or the facts as are necessary to raise the point of law in question, if the appellant has not set out the point or points of law on which he wants the ‘opinion of a judge of the Court’ in his application or in his submission before the Magistrate? … The intent of the Ordinance, and indeed the common sense of the matter, is that if the submission made before the magistrate does not contain the legal objection or objections to the findings on the facts on which the opinion of this Court is sought, then those objections (that is the point or points of law) should be set out in the application to the magistrate to state a case…” [my emphasis]

13.  Mr Martin Lee SC for the 1^st, 3^rd, 4^th and 5^th appellants submitted that they sought to have this issue included in the Case Stated, but the magistrate declined to do so.  He relied on Kates v Jeffery [1914] 3KB 160 and Attorney General v Leung Chi Kin [1974] HKLR 269, to submit that this court should allow a point not taken at the trial nor stated in the Case Stated to be argued if the question of law is one which no evidence could alter.

14.  That argument is plainly fallacious because if it is correct, it would mean that whenever an appeal is where “no evidence could alter”, the appeal court can give an opinion to any questions of law raised even if they had neither been raised at the trial nor stated in the Case Stated.  That would be to render the procedural provisions governing Case Stated in the Magistrates Ordinance such as sections 105, 107 and 112 nugatory, and is indeed contrary to decided cases.  The fact that the respondent were not taken by surprise, or mere convenience to have an answer to that question for reference of other prosecutions under the Class 3 Offence, are no valid grounds for non-compliance with the procedural requirements.

15.  In Emerson Radio Corporation and The Commissioner of Inland Revenue, HCIA2/1997 (decision affirmed on appeal in CACV196/1998), Recorder Ribeiro SC, as he then was, concluded that “it is permissible for a party to seek the opinion of the Court on questions additional to those framed in the Case Stated provided that such questions may fairly be said to arise out of the stated findings and decision of the Board.”  However, in his analysis of the various authorities, it is clear that “the position in tax appeals appears to be different from that which obtains in appeals under section 103 (now section 105) of the Magistrates Ordinance.

16.  Having dealt with the procedural issue, I now turn to look at the merits of this additional question posed.  Mr Lee SC sought to rely on the case of Secretary for Justice v Ocean Technology Ltd & Ors [2009] 1 HKC 271, wherein the Court of Appeal reframed the question which they said the magistrate ought to have asked as it was felt that by reaching a correct conclusion to that, none of the other original questions need to be answered.  Having considered that proposed additional question, I form the view that it is fact‑sensitive in that “participation” is an actus reus which covers a whole range of situations, whilst the basis for the present conviction is that the appellants each spoke the words recorded in the transcripts with the requisite mens rea through an unlicensed radio station.  In any event, I do not think that the Class 3 Offence makes any distinction between the various forms of participation.  In so far as a participant delivers the message with the requisite intent, he/she will be caught by that section.  Therefore, unlike in the case of Secretary for Justice v Ocean Technology Ltd & Ors, supra, this proposed question does not encompass the other two questions posed for me to deal with.

17.  For these reasons I decline to allow the appellants to raise the additional question in this appeal.

THE CONSTITUTIONAL ISSUE  

Appellants’ submission

18.  Counsel for the appellants submitted that since the Class 3 Offence constitutes a restriction of the right to freedom of expression, the test of constitutionality is whether the respondent had shown that this restriction was both necessary and not disproportionate (see the case of HKSAR v Leung Kwok Hung & Ors [2005] 8 HKCFAR 229). It was submitted that as that section 8 already targets the person in charge of the illegal means of communication, the government failed to show why it was necessary to enact the Class 3 Offence to target “knowing participants” in a programme broadcast (live) by an unlicensed radio station.

19.  Mr Lee SC further submitted that :

(1) The evidence adduced by the respondent shows that for the legitimate aim of stopping illegal broadcasting, it is usually sufficient to arrest the operators.  There was no evidence to show that although people had been prosecuted under section 8, there were still frequent breaches so as to necessitate prosecuting broadcasters.

(2) Actions spoke louder than words.  The fact that there had been no such prosecution under section 23 throughout 29 years would mean that the Class 3 Offence was redundant and thus unnecessary.

(3) There was a lack of evidence of actual interference caused by Citizen’s radio on or before the said date of broadcasting.

(4) There were only five complaints in five years relating to interference by FM broadcasting.

(5) No evidence of any harm further to those caused by the operators were caused by the broadcaster (counsel for the 2^nd and 6^th appellants submits likewise on the causal link factor).

(6) Magistrate erred in relying on X v UK, no. 8266/78, Commission decision of 4 December 1978, Decisions and reports 16, p. 190 to justify legitimacy in enacting measures not only against those who seek to avoid licensing requirement but also against those who seek to promote or encourage unlicensed ‘pirate’ station in their illegal activities’, because :

(i) that decision was made some 30 years ago, by the European Commission.  Settings and restriction were different.  That case was only a decision on “legitimate aim” with no findings that the restriction was ‘no more than is necessary”;

(ii) no evidence from any senior government official was led to justify the necessity of that restriction.  The Chief Magistrate wrong to accept evidence from the Bar;

(iii) Magistrate wrong to take into account the penalty and “double mens rea” factor in deciding the in deciding the restriction was necessary and proportionate. 

20.  Mr Kwok, counsel for the 2^nd and 6^th appellant submitted that the legislative intent of section 23 is a non-harm based restriction; and even if it is a harm‑based restriction, there was no evidence of actual harm caused by the present broadcasting.  He further submitted that if the restriction were to base on scarcity of the spectrum; there was insufficient evidence to show that too many radio frequencies were occupied without licence.

Respondent’s submission

21.  Mr Mok SC submitted that the legitimate aim of section 23 and the evidence of Mr Danny Lau, Assistant Director of the Office of the Telecommunications Authority (OFTA) were both not in dispute.  Now that the Court of Appeal in Ocean Technology, supra has held that the restriction in sections 8 and 20 was justified on the basis that it is a legitimate aim, and that there is a rational connection between that restriction and the legitimate aim of preventing chaos and undue interference with the rights of others in the telecommunications field, there is no reason why the “knowing use” of unlicensed means which is a more direct and proximate cause of such chaos of interference would be held otherwise.  The fact that there has never been any prosecution under section 23 for many years may be due to all sorts of reasons and does not assist in deciding the constitutionality of Class 3 Offence at all.

22.  It was further submitted that the mens rea requirement has greatly restricted the number of potential defendants targeted and so does not target more than what is necessary to accomplish the legitimate aim.

MY JUDGMENT

23.  Section 23 of the Telecommunication Ordinance, Cap. 106 criminalises four classes of activities of a person who knows or has reason to believe, that a means of telecommunications is being maintained in contravention of the Ordinance (“illegal means”), namely :

(1) the transmitting or receiving of any message by illegal means (“the Class 1 Offence”);

(2) the performing of any service incidental to the transmission or reception of any message by illegal means (“the Class 2 Offence”);

(3) the delivering of any message for transmission by illegal means (“the Class 3 Offence”); and

(4) the taking of delivery of any message sent by illegal means (“the Class 4 Offence”).

24.  What we are concerned on this appeal is the constitutionality of the Class 3 Offence under section 23.  It is not disputed that the Class 3 Offence by itself imposed a restriction over the right to freedom of expression.  The three-step process in considering whether the restriction is justified is laid out in Secretary for Justice v Ocean Technology Limited & Ors, supra, at para. 130 per A. Cheung J :

“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:

(1) The restriction pursues a legitimate aim;

(2) The restriction is rationally connected to the legitimate aim; and

(3) The restriction is no more than is necessary to accomplish the aim.”

In analysing the “legitimate aim”, A. Cheung J said that :

“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.”

25.  The legitimate aim of the Class 3 Offence is not in issue in the present case. The Chief Magistrate has found that section 23 seeks to outlaw those who “seek to promote or encourage unlicensed ‘pirate’ stations in their illegal activities” with the requisite mens rea.  This is a phrase used in X v United Kingdom, supra.  The complaint of Mr Lee SC that the Chief Magistrate has wrongly relied on that case of antiquity unique to the UK situation was misconceived.  That case was cited only to show the approach of the court in different jurisdiction and situations.  It is clear from para. 38(3) of the Case Stated that the Chief Magistrate made use of this phrase to conclude a rational connection between Class 3 Offence and the “legitimate aim”, the “legitimate issue” being one which Mr Lee has, in his submission, conceded that the Commission in X v United Kingdom, supra, was concerned about.  In any event, the evidence in the present case is not just that the appellants were promoting or encouraging unlicensed ‘pirate’ stations in their illegal activities, but were themselves making use of such ‘pirate’ station to send out messages.

26.  Turning now to the issue of “rational connection”, i.e. the first limb of the proportionality test para. 36, HKSAR v Leung Kwok Hung & Ors, supra, A. Cheung J in Secretary for Justice v Ocean Technology Limited & Ors, supra, said :

“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.”

27.  Whilst section 20 targets the physical setup or establishment of a broadcasting system without licence, section 23 targets the user of that illegal system in furtherance of the illegal setup.  Both sections go hand in hand to serve the legitimate aim.  The purpose of section 23 is to restrict those who deliberately jeopardize the legitimate aim.  Once it is accepted that the section 23 Offence targets those who “seek to promote or encourage unlicensed ‘pirate’ stations in their illegal activities” with the requisite mens rea, it goes without saying that the “rational connection” limb is satisfied.  It would be devoid of logic and common sense and indeed threadbare to accept that section 20 has a rational connection with that legitimate aim on the one hand but to argue that section 23 does not on the other.

28.  In considering whether the restriction was “no more than necessary”, the Chief Magistrate took into account the evidence adduced on the preliminary issue, which has been succinctly summarised in the respondent’s skeleton submission :

(1) Radio frequency spectrum (“spectrum”) is a scarce public resource for telecommunications, broadcasting and other purposes, and is used by service providers of mobile phones, public services operators of utilities and private business, including the Hong Kong Observatory, Civil Aviation Department, the Hong Kong Police Force, the Fire Services Communication Centre, the Hong Kong Maritime Rescue Coordination Centre, and the operators of telecommunications services and public utilities.

(2) The use of radio frequencies by one party may affect another party’s use of spectrum if there is no coordinated use or control over who can use which part of the spectrum at which geographic location and/or for what purposes.

(3) Co-ordinated use of spectrum through spectrum allocation and spectrum assignment is necessary to enable efficient and effective use of the spectrum and to ensure that the use of the allocated spectrum does not interfere with another place or territory.

(4) The orderly use of spectrum within Hong Kong necessitated the establishment of a licensing system under the OFTA under the Telecommunications Ordinance.  OFTA specifies conditions and technical requirements that the users must comply with.

(5) Section 8 of the Ordinance is the operative provision which prohibits the establishment or maintenance of any means of telecommunications without appropriate licences.  Section 23 of the Ordinance is to assist the operation of section 8 and enforcement of the licensing system under section 7 and Part IIIA of the Ordinance.

(6) The illegal or un-coordinated use of frequencies in the FM Sound Broadcasting Band may cause harmful interference to the aeronautical radio navigation and aeronautical mobile services.  During 2004 to 2008, OFTA has received from the Civil Aviation Department five complaints relating to interferences by FM broadcasting with such services.

(7) One of such interference was caused by the Citizens’ Radio on 27 August 2008.

29.  It is worth noting that the test is “no more than is necessary to accomplish the aim”, i.e. “does not go beyond what is proportionate”, (otherwise known as the proportionality test), as opposed to “necessary” in a democratic society in the interest of national security…, “a requirement conveniently referred to as ‘the legitimate purpose’ requirement” (para. 17(2), HKSAR v Leung Kwok Hung & Ors, supra), which is not in issue in the present appeal.  To this end, A. Cheung J said in Secretary for Justice v Ocean Technology Limited & Ors, supra, at para. 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 was 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. …” [my emphasis]

30.  It was held in that case that it is necessary to have an effective system to regulate the use of the spectrum the Ordinance due to the scarcity of resources. Section 23 complements section 8 in that it is to assist the operation of section 8 and enforcement of the licensing system and targets those users of that illegal system in furtherance of the illegal setup by way of a criminal sanction.  Both sections share a common aim, namely, to regulate the use of the spectrum and to prevent chaos and undue interference with others’ rights.  Once it is reckoned that the law ought to put a stop to broadcasting without a licence because this might cause chaos directly, a piece of legislation which merely outlaws the activities of those who establish or maintain the radio equipment without illegalising the activities of those who deliver messages to be broadcast through such radio equipment will be otiose and powerless in preventing the illegal use of the radio wave spectrum.  The fact that no prosecution had been brought under section 23 for the past 29 years, in my view could be due to all sorts of reasons and does not assist in establishing whether or not Class 3 Offence is “no more than is necessary”.  The object of the Class 3 Offence, similar in nature to many statutory regimes, is clearly preventive in view of the interest at stake.  The lack of evidence of actual harm caused as at the date of the offence is neither here nor there and is not evident in showing that the Class 3 Offence lacks proportionality.

31.  It is for the court to assess whether in all the circumstances, the Class 3 Offence goes no more than necessary to accomplish the aim at preventing chaos and undue interference with others’ rights by regulating the use of the spectrum.

32.  I am of the view that the Chief Magistrate has rightly taken into account the following factors in considering whether Class 3 Offence is “no more than is necessary”, namely, (1) section 23 does not attract any prison term and an offence under it punishable by a fine only up to $50,000; and (2) that the Class 3 Offence requires the prosecution to prove two different elements of mens rea in addition to knowledge or belief that such were illegal means of communication, namely that :

(1) the person delivering such message knew that it was effected by an unlicensed means of telecommunications; and

(2) the delivery of messages was done by that person for (the purpose of) transmitting such messages by such means of telecommunications.

33.  As the requisite mens rea is required, the Class 3 Offence would not catch, for instance, a passer‑by interviewed by a programme host engaged by an unlicensed radio station, because either he did not know the means of telecommunications is unlicensed or, even if he had such knowledge, his purpose was not to deliver a message by an un‑licensed means of telecommunications but was simply responding to questions asked of him in the street.  With these the number of potential defendants caught under that provision would be greatly reduced.  

34.  Whilst the freedom of expression is not confined only to the substance but also as to the mode, Class 3 Offence “does not interfere with one’s freedom to express the same message by other modes”, it only bans one mode of expressing whatever the message one wishes to express, namely, illegal broadcasting, and does not interfere with his/her freedom to express the same by other modes.  It is thus only a limited restriction.

35.  That said, I find that Class 3 Offence is a permissible fetter to the right to freedom of expression in that it is rationally connected to the legitimate aim and no more than necessary to accomplish that aim, and is thus a justified derogation.

CONCLUSION

36.  Due to the aforesaid, my answer to the two questions posed in the Case Stated is as follows :

(a) Question (1) : “No”.

(b) Question (2) : “No”.

37.  There will be a cost order nisi that the appellants pay the cost of this appeal to the respondent, to be taxed if not agreed, such order to be made absolute within 14 days from today.

38.  I wish to thank counsel for their assistance.