HKSAR v. UNIGLOBE TELECOM (FAR EAST) LTD.

FAMC No. 17 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 17 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 104 OF 1998)

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D E T E R M I N A T I O N

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Mr Justice Litton, PJ:

Introduction

1. This is the determination of the Appeal Committee.

2. The applicant was convicted in the District Court of two offences under s8 of the Telecommunication Ordinance, cap 106, the first under subsection 1(a) of maintaining a means of telecommunication without a licence and the second under subsection (1)(b) of using a radiocommunication apparatus without a licence. The applicant's subsequent application to the Court of Appeal for leave to appeal was dismissed, but on 4 August 1998 the Court of Appeal certified points of law for the Court of Final Appeal's consideration as follows:

"1. Whether a person who provides 'telecommunication services' as defined in s.2 of the Telecommunication Ordinance Cap. 106 thereby ipso facto maintains a means of telecommunication within the meaning of s.8(1)(a) of the Ordinance; and

2. Whether by engaging an independent contractor to provide a telecommunication service a person thereby maintains the means of telecommunication used by the contractor, irrespective of whether such person has knowledge of the existence or use of such means of telecommunication, and is therefore liable as a matter of strict liability for the actions of the contractor."

The trial

3. The prosecution's primary case against the applicant at trial was in summary as follows: (i) The applicant provided a telecommunication service to customers under a public non-exclusive telecommunications service licence issued under the Telecommunications Ordinance; (ii) this service enabled customers to make outgoing international telephone calls from within Hong Kong; (iii) the licence, however, restricted the applicant, in providing the service, to channelling outgoing calls through the "gateway" provided by Hong Kong Telecom International Ltd.; (iv) the applicant colluded with a company called Bestlong International Ltd. to transmit radio waves from an apparatus located in a building at Sheung Shui to the Mainland by-passing the "gateway"; (v) Bestlong maintained the means of telecommunication there without a licence and used the apparatus there without a licence; (vi) Bestlong was guilty of the two offences under the Telecommunication Ordinance, therefore the applicant was guilty as charged.

4. The Judge, however, was not satisfied that the applicant knew of the existence or use of the apparatus at Sheung Shui by Bestlong, nor was he prepared to find that the applicant had "turned a blind eye" to the illegalities committed by Bestlong. The Judge convicted the applicant nevertheless on the basis that the offences were ones of strict liability and the applicant had failed to show that it had taken all reasonable steps to avoid committing the offences.

The certified questions of law

5. Looking at the two certified questions, we are by no means satisfied that answers to these questions would necessarily resolve every issue on the appeal, nor that they are capable of being answered satisfactorily. As to Question 1, normally, the question whether a person is guilty as charged depends upon the facts found proved at trial; that is, whether those facts amount to the averments set out in the charge as particularized; it does not depend upon the statutory definition of another set of words.

6. As to Question 2, it is not clear why it is there at all, since it seems to relate only to the first charge: If the answer to Question 1 is intended to resolve all issues relating to the first charge, how does Question 2 advance the case? What if the answer to Question 1 is in the applicant's favour, but not the answer to Question 2? Moreover, the expression in Question 2 "engaging an independent contractor" is not a term of art: Whether a person who engages an independent contractor to provide a telecommunication service "thereby maintains [a] means of telecommunication" is not a question that can be answered in a vacuum: It would depend among other things upon the terms under which the subcontractor was engaged. These have not been referred to in the courts below.

The real complaint

7. As we see it, the applicant's real complaint is that upon the facts found by the Judge (or, more accurately, upon those facts and those established upon the evidence whether by admission or otherwise) it is simply not guilty as averred on both charges. We are prepared to allow the case to proceed to the Court of Final Appeal upon this basis: That is, on the second limb of s32(2) of the Hong Kong Court of Final Appeal Ordinance, cap. 484. This would enable all the issues touched upon in this application to be aired: For instance whether the offences charged are ones of strict liability.