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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REASONS FOR DETERMINATION

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1.  This application arises from an appeal against the decision of a magistrate, to which I have dismissed on 11 August 2011. Notices of Motion were filed on 15 and 18 August 2011.

2.  Background and facts of the case are laid out in full in my judgment which I am not going to repeat or recite.

3.  According to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 ：

“(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.”

4.  The point of law stated to be certified is as follows :

“(1) Does the class three offence under Section 23 of the Telecommunications Ordinance, Cap. 106 (‘the Ordinance’), namely, ‘any person who, knowing or having reason to believe that a means of telecommunications is being maintained in contravention of this Ordinance, …delivers any message for transmission by such means of telecommunications…’, 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?

(2) Is ‘the class 3 offence’ under section 23 of the Ordinance constitutional?”  

5.  I decline to let the appellants raise the first point of law in the appeal.  Reasons were given in my judgment.  The second issue has also been dealt with.  

6.  However, since the present case involves a constitutionality issue, I agree that these points of law are of great and general importance.  I grant section 32 certificate to the Court of Final Appeal certifying the above two points.

7.  Pursuant to section 120 of the Magistrates Ordinance, Cap. 227, costs orders against the unsuccessful applicants are entirely within the discretion of the Court on a section 105 appeal.  It was submitted by the appellants that this is a test case on the constitutionality of the Class 3 Offence, without the case stated appeal against the ruling of the magistrate there would not have been precedent for other magistrates, and that both the applicants as well as the respondent need this Case Stated to clarify definitive issues. All of these are not grounds for not making a costs order against the applicants. I refuse to set aside the costs order and order it to be made absolute.