HKSAR v. WONG YUK MAN AND OTHERS

FACC Nos. 10 and 11 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS. 10 and 11 OF 2011 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 164 OF 2011)

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JUDGMENT

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Chief Justice Ma :

A  INTRODUCTION

1.  We are in these appeals concerned with s 23 of the Telecommunications Ordinance Cap. 106 (“the Ordinance”), which is a provision setting out various offences in connection with telecommunications that exist in contravention of other provisions of the Ordinance (I shall, for convenience, refer to this as an “unlawful telecommunications system”).  Specifically, there are two issues arising out of that provision for this Court’s consideration: first, the ambit of the offence under s 23 in relation to the delivery of a message for transmission by means of an unlawful telecommunications system; and secondly, whether such offence breaches constitutional norms.  These were the two issues for which leave to appeal was given by the Appeal Committee on 1 December 2011.

2.  The relevant facts can be briefly stated.  On 20 April 2008, at a pedestrian area outside Wing Wah Building on Sai Yeung Choi Street South, Mongkok, a radio emitting system was set up for the purpose of radio broadcasting.  This means of telecommunications (which went by the name of Citizen’s Radio – I shall for convenience continue to use this name to refer to the radio telecommunications system that was set up), was unlawful in that it contravened the licensing provisions of the Ordinance (I shall presently refer to s 8 of the Ordinance in this context).  The 5 appellants (together with 3 other persons) participated in a forum at the location by speaking into microphones which broadcast the discussions simultaneously to listeners of Citizen’s Radio.

3.  The appellants were each charged with delivering messages for transmission by a means of telecommunications (viz. Citizen’s Radio) that had been maintained without a licence as required by the Ordinance.  The charges were made under s 23 of the Ordinance.

B  THE PROCEEDINGS BELOW

4.  Following the hearing of a preliminary issue (the issue being the constitutional issue identified above), the Chief Magistrate convicted the appellants of the s 23 offence on 14 December 2009.

5.  The appellants appealed on a case stated for the Court of First Instance.  On 11 August 2011, Madam Justice Maggie Poon handed down her judgment and dismissed the appeal.  Before the learned Judge, the appellants had sought leave to argue the first of the 2 issues before us, but leave was refused.  On the constitutional issue, M. Poon J (like the Chief Magistrate) held (against the appellants) that the relevant provision was constitutional.

6.  For the reasons which appear later in this judgment, it will be seen that it is unnecessary for this Court to deal with the constitutional issue since the appeals should be allowed on the basis that the appellants could not be convicted for the offence with which they were charged.  Before expanding on the reasons for this conclusion, I must first set out the relevant provisions in the Ordinance.

C  THE STATUTORY SCHEME

7.  Section 23 states as follows:-

“23. Transmitting or receiving messages, etc., by unlicensed means of telecommunications

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 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 $50,000.”

8.  The following persons are caught by five separate offences under this provision, all in relation to an unlawful telecommunications system (providing of course that these persons have the requisite mens rea of knowing or having reason to believe that the means of telecommunications was being maintained in contravention of the Ordinance), namely:-

(1) A person who transmits any message by an unlawful telecommunications system;

(2) A person who receives any message by an unlawful telecommunications system;

(3) A person who performs any service incidental to the transmission or reception of any message that has been transmitted or received by an unlawful telecommunications system;

(4) A person who delivers any message for transmission by an unlawful telecommunications system; and

(5) A person who takes delivery of any message sent by such an unlawful telecommunications system.

We are, in the present case, of course concerned only with the offence set out in sub-para (4) above: the offence of delivering a message for transmission by an unlawful telecommunications system.  This was referred to by the parties as the Class 3 Offence, but it is really in the 4^th category.

9.  The terms “message” and “telecommunications” in s 23 are defined in the Ordinance, and their definitions also contain terms (namely “communication”, “telecommunications officer” and “telecommunications service”) which are also defined.  These definitions are to be found in s 2(1) of the Ordinance:-

“2. Interpretation

(1) In this Ordinance, unless the context otherwise requires-

……

‘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.

……

‘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.

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

10.  In order to address the issue of the ambit of the 4^th offence under s 23 (which is an exercise in statutory construction), it is useful first to point out as background the principal theme of the Ordinance, that is, the licensing and control of telecommunications in Hong Kong (this theme is reflected in the Long Title of the Ordinance).

11.  The close regulation of telecommunications is of some importance here as elsewhere, and particularly so where the regulation of airwaves is concerned.  Radio frequencies (and we are in the present case concerned with radiocommunications, that is, telecommunications by means of radio waves) are finite; there is a limited availability of radio frequencies.  The evidence which was adduced by the prosecution before the Chief Magistrate was to the effect that radio frequency spectrum (the range of radio frequencies within which radiocommunications are capable of being carried out) is a scarce public resource and a finite one (in that it cannot be produced using other resources such as capital or labour).  There are many users of this radio spectrum, ranging from providers of mobile telephones to providers of emergency services.

12.  Regulation takes place principally by a licensing regime under the Ordinance so as to ensure, among other things, a proper coordination among telecommunications users.  Given the diverse range of users of, say, radio frequencies, any unlicensed (and therefore uncoordinated) use of such frequencies may result in interference with licensed users.  Where emergency services are concerned, or where air or navigational services are involved, the interference may be harmful.  It is to be noted that on 27 August 2008 (7 days after the events in respect of which the appellants were charged), there were five interferences with the air-ground communication channels of the Civil Aviation Department, one such interference being caused by Citizen’s Radio.  The interference from unlicenced users of radio frequencies is not restricted to Hong Kong; users in overseas territories can also be affected.

13.  It is therefore not surprising that the Ordinance contains detailed provisions regarding licensing.  Part III of the Ordinance deals with the control of telecommunications.  Sections 7 to 7P deal extensively with licences and licensees.  But apart from setting out licensing requirements, the Ordinance also makes provisions for criminal sanctions consequent upon the setting up or use of unlicensed telecommunications; these are contained in Part V of the Ordinance.

14.  Section 8 prohibits the establishment and maintenance of any means of telecommunications – among other prohibitions – without a licence.  Section 20 of the Ordinance makes any contravention of section 8 a criminal offence.  In the course of considering whether the constitutionality of the offence creating provision (s 20) was affected by the constitutionality of the statutory licensing regime (prescribed under s 8), the Court of Appeal in Secretary for Justice v Ocean Technology Ltd. [2009] 1 HKC 271, at 289 C-D (para 67) stated (Stock JA with whose judgment the other members of the court concurred);-

“That there is a societal justification for a licensing regime should be obvious from a moment’s contemplation of the chaos, and interference with the rights of others, that would result absent such a regime.”

The case also involved the broadcasting by Citizen’s Radio, on that occasion various broadcasts in 2005 and 2006.  There, the company behind Citizen’s Radio, and a shareholder and director of the company, had been charged under ss 8 and 20 of the Ordinance.

15.  Sections 9, 10, 11 and 12 of the Ordinance deal with the control of import and export of use of radiocommunications transmitting apparatus, the control of radiocommunications apparatus on a vessel in Hong Kong waters, the control of use of radiocommunications apparatus on aircraft in Hong Kong and use of radiocommunications apparatus so as to cause interference with other means of telecommunications.  Sections 21 and 22 set out the criminal offences consequent upon a breach of these provisions.

16.  Section 23 of the Ordinance follows these other offence creating provisions, dealing (as we have seen) with 5 situations involving the use of an unlawful telecommunications system, including an unlicensed system.

17.  Having been charged under s 23 of the Ordinance, are the appellants, however, caught by the fourth of these situations (see para 8(4) above)?  It is to this question I now turn.

D  DID THE APPELLANTS DELIVER A MESSAGE FOR TRANSMISSION BY MEANS OF AN UNLAWFUL TELECOMMUNICATIONS SYSTEM, CONTRARY TO S 23 OF THE ORDINANCE?

18.  As stated earlier, the appellants participated in a forum by speaking into microphones which was simultaneously broadcast to radio listeners.  The appellants each knew or had reason to believe that Citizen’s Radio was an unlawful telecommunications system.

19.  The requisite mens rea under s 23 of the Ordinance being established, were the activities of the appellants caught by what I have earlier set out as the 4^th offence under that provision (para 8(4) above), that is, the delivery of a message for transmission by an unlawful telecommunications system?  If not, the appeals must be allowed, irrespective of whether the appellant’s activities may have been caught by any other offence under s 23.

20.  The issue here – the first of the two issues before this Court – is one of the proper construction of s 23. It was not raised before the Chief Magistrate.  Leave to raise it was refused in the appeal before M. Poon J, although the Judge did also deal with the issue on the merits.  She was of the view that in speaking into a microphone and the words being broadcast through an unlicensed radio station, the appellants had delivered messages for the purpose of the 4^th offence under s 23 (see para 16 of the Judgment above).

21.  The respondent’s position in these appeals was simply this: the term “delivers any message” in s 23 was capable of catching any person who spoke into a microphone; that person was delivering a message in the sense of, say, delivering a speech.  Accordingly, “delivers any message for transmission” would catch any person (like the appellants) who spoke into a microphone which then broadcast through the unlawful telecommunications system.  As Mr Johnny Mok SC for the respondent also reminded us, the Chinese words in the provision were also capable of bearing this meaning.

22.  The appellants contend quite differently: their essential submission is that the term “delivers any message” means a delivery from one person to another person (in the sense of giving or handing over to that other person) or handing over to someone who then effects the transmission of the message through the unlawful telecommunications system.  In short, a two stage process is envisaged (Person A to Person B for onward transmission).  This is to be contrasted with the respondent’s position, which is a one-stage process for the delivery (Person A directly effects the transmission by speaking into a microphone).  Mr Mok at one point faintly suggested that when a person spoke into a microphone, he could be said perhaps to be delivering to an engineer or some other technical person who then effected the broadcast, but this is a rather artificial and strained factual analysis. In a radio broadcast, for example, when a person speaks into a microphone and his words are then broadcast, he is not delivering a message to an engineer; he is simply speaking into a microphone and his words are then, through a process of converting sound energy into electrical energy and then back again to sound waves, broadcast to a listener.

23.  In my judgment, on a true construction of s 23, it is clear that the words “delivers any message for transmission” refer to a two-stage situation, in which the offence is committed by the delivery by one person of a message (by whatever means, whether orally or in writing) to another person who then, by himself or others, transmits the message through the unlawful communications system:-

(1) To start with, on a natural reading, the very words in the provision (“delivers any message for transmission”) militate towards this construction.  Two activities are referred to, namely, delivery and transmission.  These activities are, one would expect, carried out by different people.  So, already a two-stage process is assumed.

(2) The definition of “message” in s 2(1) of the Ordinance (see para 9 above) is important.  The word “message” includes a communication (which is defined in wide terms) “given to a telecommunications officer to be sent by telecommunications”.  Thus, the definition of “message” expressly envisages a situation in which a communication is given to another person (the “telecommunications officer”, a term which is also defined in wide terms: see para 9 above) to be sent by telecommunications.  This matches almost precisely the two stage process envisaged under the 4^th offence in s 23 as contended by the appellants.

(3) The word “delivery” also appears under the 5^th offence in s 23 (the taking of delivery of any message: see para 8(5) above).  This obviously envisages a situation in which one person accepts delivery of the message from another person (in the sense of being given or being handed a message).  The words are singularly inapt to cover a situation in which a person listens to a speech or a statement that has been made.  The listener is simply listening to the speech or statement, not taking delivery of it.  This construction supports the view in relation to the 4^th offence that the word “delivers” connotes giving to another person.

(4) The term “delivery” also appears in other parts of the Ordinance when referring to messages: see, for example, ss 24(1)(a), 25(a) and 27(1).  It is neither necessary nor desirable to deal in detail with the ambit of these provisions, but at first blush, it would certainly appear odd if the references to delivery of messages in them meant what the respondent submitted to be the position.  Similarly for the phrase “to be delivered” in the definition of message in s 2(1) of the Ordinance (para 9 above).

(5) Even on the respondent’s case, it seems to be accepted that the words “delivers any message” do involve a delivery to someone or something.  Afterall, as pointed out in relation to the 5^th offence under s 23, the use of the word delivery there does involve the passing of a message from one person to another person.  I have already earlier (in para 22 above) referred to the artificiality of the contention that in speaking into a microphone, a person can be said to be delivering a message to an engineer or some other technical person.  Equally artificial in my view is the submission made by Mr Mok in answer to a question from Mr Justice Ribeiro PJ that in delivering a message “for transmission” (which by definition can only take place before the transmission actually take place), the person is delivering a message to the microphone or to some other technical equipment.   It seems unlikely that the legislature would have intended the criminalization of the act of delivering a message to a piece of electronic equipment, rather than to a person. 

(6) Given the foregoing, it would be indeed be surprising if the legislative draftsman had really intended that the 4^th offence should be used to deal with the situation, as in the present case, of catching persons who, with the requisite mens rea,  speak into microphones and their speech is then broadcast to listeners.  Such an inapt, and certainly inelegant, way of defining the offence cannot readily be ascribed to the draftsman.

24.  We have been referred to some of the previous legislation and leading up to s 23 of the Ordinance.  The present form of this provision can be traced to the Telecommunication Ordinance 1936.  Section 16 of that Ordinance states:-

“16. Any person who, knowing or having reason to believe that a telegraph has been established or is maintained or worked in contravention of this Ordinance, transmits or receives any message by such telegraph, or performs any service incidental thereto, or delivers any message for transmission by such telegraph, or accepts delivery of any message sent thereby, shall be liable to a fine of fifty dollars.”

25.  The definition of “message” contained in s 2 of the 1936 Ordinance was:-.

“……‘message’ means any communication sent by telegraph or handed to a telegraph officer to be sent by telegraph or to be delivered.”

26.  In those days of communication by telegraph (meaning the sending and receipt of telegrams), it could hardly be said that in sending a message through the telegraph system, a telegraph officer was somehow delivering it.  As a matter of everyday language, it would be said that the telegraph officer would be transmitting the message through the telegraph system to the destination where the message, in the form usually of a telegram, would then be delivered.  The use of the words “deliver” and “delivery” would involve the two-stage process of a person handing and giving to another person.  It is noteworthy that in the definition of “message” in the 1936 Ordinance, this includes any telecommunication “handed to a telegraph officer to be sent by telegraph”.  Accordingly, the history of s 23 would certainly support the conclusion reached in para 23 above.

27.  Mr Mok submitted in relation to the 1936 Ordinance that whatever may have been the meaning of “deliver” and “delivery” under that or any other previous Ordinance, the modern day meaning of “deliver” under s 23 of the Ordinance, in relation to radio telecommunications at least, meant the making of a speech or statement and would include speaking into a microphone.  He relied on a number of authorities – among them Bennion on Statutory Interpretation (5^th ed.) and The Attorney General v The Edison Telephone Company of London (1880-81) LR 6 QBD 224 – for the proposition (which is not contentious) that the courts will construe statutory provisions to take into account changes, in particular technological changes, that have taken place subsequent to the passing of the statute.  In other words, a statute is taken to be “always speaking”. I have no quarrel with this principle of statutory construction; indeed, it is not, as I have said, contentious.  However, it provides no answer in the present case to those points made in paras 23 to 26 above. 

28.  Moreover, the meaning that the respondent seeks to give to the word “delivers” under the 4^th offence, is not in accordance with everyday usage.  I would have thought that a more natural and obvious way of describing the act of speaking into a microphone so as to broadcast to listeners whatever was said, is that a message was being transmitted.  It will be recalled that the 1^st offence under s 23 is where a person “transmits a message”.  As a matter of plain language, the word “transmit” is capable of meaning “to convey or communicate to another or others” (the Shorter Oxford English Dictionary).  In the context of telecommunications, the word is also capable of having this meaning.  In the Edison Telephone case earlier referred to (para 27 above), the question arose whether persons who spoke by telephone, were transmitting a message for the purposes of the Telegraph Act 1869 (at 250).  Giving the judgment of the Exchequer Division, Stephen J said this at 258:-

“For these reasons we hold that a conversation held through a telephone is either a message, or, at all events, a communication transmitted by a telegraph, which is the definition of a telegram.

A small question was raised on the word “transmitted.” When one person speaks to another it was said he ‘makes,’ but does not ‘transmit,’ a communication. The answer is, that when he speaks through a wire some miles long he sends what he says through the wire, or transmits it.”

29.  Mr Mok submitted that the word “transmits” did not carry this meaning at all.  Its meaning was to be restricted to the technical operator or operators who were responsible for the actual transmission (in the scientific or technical sense) of the message.  I regard this construction as being unduly narrow and would ask rhetorically just why the technical persons involved in the transmission of a message (which can comprise a number of persons involved in the operation, ranging from the person who sets up the system through to the person who merely switches it on) should be specifically targeted under s 23, especially when they would in any event be covered under the 3^rd offence (being persons performing any service incidental to the transmission or reception of a message)?

30.  I have read the judgment of Lord Hoffmann in which he deals in greater detail with the aspect of transmission of messages and also generally with the scheme of s 23.  I agree with it.

31.  This construction of the word “transmits” and the meaning I have given to the term “deliver any message for transmission” (see para 23 above) is further supported by the policy behind s 23.  I have earlier dealt with the theme of the Ordinance and adverted to the importance of tight regulation of telecommunications (see paras 10 to 16 above).  Section 23 forms a part of this regulation and is intended to criminalise the activities of those persons who are involved in unlawful telecommunications systems.  While s 8 of the Ordinance targets, among other persons, those who establish or maintain such unlawful systems, s 23 expands on this by targeting five classes of persons (these classes being referable to the five offences I have earlier identified in para 8 above) who may become involved in an unlawful telecommunications system.

32.  The policy behind the 4^th offence under s 23 is to catch those persons who provide messages to be transmitted or broadcast through the unlawful telecommunications system.  In other words, this offence targets the source of the messages, those persons who seek to use the unlawful telecommunications system so as to transmit or broadcast their message.  For example, where a person wishes to advertise his products and sends his advertising message to an unlawful radio station so that the advertisement can be broadcast to listeners of that radio station, that person will (and is intended to) be caught by the 4^th offence.  The person who actually speaks into the microphone with the advertising message, transmits it and he will be caught under the 1^st offence.  Those persons who perform any service incidental to the transmission of that message (such as, for example, setting up the equipment or making the system operate) will likely be caught under the 3^rd offence.  

33.  The trouble with the respondent’s construction of the 4^th offence under s 23 (see para 21 above) is that the source or originator of a message to be sent using an unlawful telecommunications system (the advertiser in the example given in the previous paragraph), is not caught by any of the 5 offences under s 23.  This would indicate the fallacy in the respondent’s submission on the construction of the 4^th offence.  In answer to this point, however, Mr Mok advanced an argument to the effect that the phrase “delivers any message” under the 4^th offence, is capable of covering the situation both of the originator delivering a message for transmission (the advertiser in my example) as well as the person who speaks into a microphone.

34.  I am unable to agree with this submission:-

(1) First, it is most unusual for a word or phrase in a statutory provision to bear two completely different meanings.  One sometimes (though unusually) sees the same word in different provisions in a statute perhaps bearing different meanings but not within the same provision (unless of course the statute contains an express definition which covers different meanings).  We were not drawn to any example of this nor to any relevant authority.

(2) Secondly, it also seems highly unusual for the legislative draftsman to have intended to catch two of the most important persons involved in an unlawful telecommunications system (namely, the originator of the message and the person who actually speaks into the microphone) by the use of a single phrase. 

35.  For these reasons, I am of the view that the first issue must be determined in the appellants’ favour: they are not caught under the 4^th offence in s 23 of the Ordinance. The answer to the question posed under this section is No.

E  CONSTITUTIONALITY

36.  In view of the conclusion I have reached on the first issue, it is not necessary to determine the constitutionality issue.

37.  Nor do I think it is desirable to do so.  We have been addressed on this issue only from the point of view of the 4^th offence under s 23 of the Ordinance.  Neither side made any submissions analysing s 23 as a whole.  That section covers, as we have seen, five different situations.  It would be somewhat odd for the constitutionality of only one situation to be dealt with, in the absence of any consideration of the others.  Mr Martin Lee SC (for the 2^nd to 4^th appellants) submitted (his submissions were adopted by Mr Douglas Kwok for the 1^st and 5^th appellants) that all his clients wanted was a declaration that, if they were caught by the 4^th offence, that part of s 23 was unconstitutional insofar as his clients (or others who participated in a similar forum) were concerned, whatever may be the position of others.  This is not, in my view, a satisfactory way of resolving a constitutional issue.

38.  Further, if one were to look at the constitutionality issue examining s 23 as a whole, this may not be a simple issue at all.  One can readily imagine many different situations being covered by s 23 making the proportionality exercise potentially quite a complicated and delicate one, even taking into account the policy reasons behind that provision.

39.  Lastly, in this context, although I have declined to deal with the constitutionality issue, it should not be understood that I should be taken as endorsing the correctness of the decisions of the courts below on this issue.

F  CONCLUSION

40.  For the above reasons, I would allow the appeals and set aside the convictions of the appellants.  I would also make an order nisi that the appellants should have the costs both in this Court and in the court below.  There should, however, be no order as to costs of the proceedings before the Chief Magistrate: the point on which the appellants have succeeded in this Court was not raised in those proceedings. If any party wishes to have a different order for costs, written submissions should be served on the other parties and lodged with the Court within fourteen days of the handing down of this judgment, with liberty on the other parties to lodge written submissions within fourteen days thereafter.  In the absence of such written submissions, the order nisi will stand absolute at the expiry of the time limited for these submissions.

Mr Justice Bokhary PJ:

41.   Is participation as panellists or speakers in a programme knowing or having reason to believe that it will be broadcast live by an unlicensed radio station criminalized by s 23 of the Telecommunications Ordinance, Cap 106 (“the TO”)  as a class three offence thereunder?  If the answer is “No” each appellant’s conviction must be quashed without reaching the second question, which is whether s 23 would be unconstitutional in so far as it so criminalizes such participation.

42.   Shortly stated, the circumstances of the case are these.  As panelists or speakers, these five appellants and others participated in a programme which was broadcast live on 20 April 2008 by Citizen’s Radio, a radio station which, not holding a licence from the Chief Executive in Council or the Telecommunications Authority, was, as the appellants knew or had reason to believe, a means of telecommunications maintained in contravention of the TO.  They were convicted after trial in the Magistrates’ Court (the Chief Magistrate, Tong Man Esq) of a class three offence under s 23 of the TO i.e. of delivering a message for transmission by a means of telecommunications which they knew or had reason to believe was being maintained in contravention of the TO.  Their convictions were affirmed on appeal to the High Court (M Poon J).

43.  Section 23 of the TO reads:

“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 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 $50,000.”

It is convenient to treat this section as creating four classes of offence.  Each is committed by a person who, knowing or having reason to believe that a means of telecommunications is being maintained in contravention of the TO:

(i) transmits or receives any message by such means of telecommunications;

(ii) performs any service incidental to the transmission or reception of any such message;

(iii) delivers any message for transmission by such means of telecommunications; or

(iv) takes delivery of any message sent thereby.

44. Each appellant contends that s 23 does not, as a matter of statutory interpretation, criminalize what they did but that it would be unconstitutional if and in so far as it does. The respondent contends to the contrary on both questions.

45. It appears that the appellants participated in the radio programme concerned for the purpose of protesting against – and possibly to provide an occasion for challenging the constitutionality of – the broadcasting licensing regime operated in Hong Kong.  No such constitutional challenge lies before the Court for decision in the present appeal.  Without saying anything about that regime, it is clear that it is necessary to have some broadcasting licensing regime. The evidence indicates that the absence of any such regime would lead to chaos, interference with emergency services and perhaps even hazard to aviation.  But as far as offences under s 23 of the TO are concerned, the legislature has not treated them as having to be punishable by more than a fine of $50,000, that being  the maximum penalty for such offences.

46. The word “message” is defined by s 2(1) of the TO, which is its interpretation clause, to mean “any communication sent or received by telecommunications or given to a telecommunications officer to be sent by telecommunications or to be delivered”. So a message can mean

(i) any communication sent by telecommunications;

(ii) any communication received by telecommunications;

(iii) any communication given to a telecommunications officer to be sent by telecommunications; or

(iv) any communication given to a telecommunications officer to be delivered.

47. Placing an advertisement with a radio station comes readily to mind as an example of conduct which fits comfortably into the concept of delivering a message for transmission by means of telecommunications.  That is fortified by the existence of the class four offence, which involves taking delivery of a message sent by such means.  The class four offence would appear to be directed to the conduct of those operating, or working at, a radio station – not to listeners of a radio programme.  Whichever meaning of “message” or combination thereof is taken, participating in a radio programme as a panelist or speaker simply does not fit at all comfortably into that concept.  Delivering a message for transmission is not the same thing as delivering a message by transmission.

48. While understanding and respecting the view to the contrary taken by Mr Justice Litton NPJ, I decline to place on s 23 of the TO an interpretation that renders what the appellants did a class three offence.  On this view, the question of unconstitutionality is not reached.

49. Upon my answer to the first certified question of law, being the question of interpretation, I would allow this appeal with costs nisi to quash the appellants’ convictions. 

Mr Justice Ribeiro PJ:

50. I agree with the judgments of the Chief Justice and of Lord Hoffmann NPJ.

Mr Justice Litton NPJ:

51. The facts giving rise to the two questions of law raised on this appeal are as follows.

On Sunday 20 April 2008, in a busy pedestrian precinct in Mongkok, a radio emitting system was set up, operating on a frequency of 102.8MHz.  The operators put up a large table, erected a big banner, seeking public support and donation for their activity. They called it “民間電台” “the Citizen’s Radio”.  The frequency of their broadcast – 102.8 MHz – was prominently displayed on the table.  The system was operated illegally.  They did not have the licence of the Chief Executive in Council or any licence granted by the Telecommunications Authority to establish and maintain such means of telecommunication.

52. The appellants participated in those activities.  Each of them was seen making a speech into a hand-held microphone; the speech was broadcast and heard on the frequency 102.8MHz.  It is common ground that the appellants knew that the radio system was being operated without a licence, in contravention of the Telecommunications Ordinance, Cap.106

53. In due course the operators of the system and the appellants were charged with offences under the Telecommunications Ordinance.  As to the operators,they were charged and subsequently convicted under s 8.[1]

Section 23 Telecommunications Ordinance

54. The appellants were charged under s 23 which reads :

“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 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 $50,000.”

55. As can be seen, there are four classes of persons caught by s 23:

(1) those who transmit or receive messages by telecommunication;

(2) those who perform any service incidental to the transmission or reception of such messages;

(3) those who deliver any message for transmission by telecommunication;

(4) those who take delivery of any such message.

If they knew (or had reason to believe) that the means of telecommunication were being maintained in contravention of the Ordinance, they committed an offence.

56. For the sake of convenience the different classes of offence caught under s 23, as identified in the paragraph above, were referred to in the courts below as class 1, class 2 etc.

57. The appellants were charged and convicted under class 3.  In essence, what they were found guilty of was as follows: That knowing that a means of telecommunication was being maintained on 20 April 2008 in contravention of the Ordinance, they delivered messages for transmission by means of telecommunication.

Scheme of the Ordinance

58. “Telecommunication” in the Ordinance is defined as “any transmission, emission or reception of communication by means of …… electromagnetic energy ……, other than any transmission or emission intended to be received or perceived directly by the human eye.”

59. The Ordinance was enacted in 1962, to replace a 1936 Telecommunication Ordinance where “Telecommunication” was defined as any telegraphic or telephonic communication of signs, signals, writing, facsimiles and sounds of any kind by wire, wireless, or any other system or process of electric or visual signalling or by means of pneumatic tubes.

60. An earlier version of s 23 appears as s 16 of the old Ordinance and reads as follows :

“Any person who, knowing or having reason to believe that a telegraph has been established or is maintained or worked in contravention of this Ordinance, transmits or receives any message by such telegraph, or performs any service incidental thereto, or delivers any message for transmission by such telegraph, or accepts delivery of any message sent thereby, shall be liable to a fine not exceeding fifty dollars.”

First Question before this Court :

61. The first question for our determination is as follows :

“(1) Does “the Class 3 Offence” under section 23 of the Telecommunications 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? (“Question1”)”

62. In approaching this issue, it is best to say first of all what this case is not about : It is not about the appellants’ participation as such in the event on the street on Sunday 20 April 2008.  They were entitled to be present at what has been described as a “forum”, to be seen as giving moral support to the organizers of the forum, to speak at the forum.  This case is concerned solely with their acts at the forum which contravened s 23 of the Ordinance : In essence, those acts took place, as the prosecution alleged, when they delivered speeches into the microphones held in their hands, knowing and intending that those speeches would be broadcast by radio waves.  The message they sought to convey was that they supported the setting up of a Citizen’s Radio station in Hong Kong.

“Deliver any message for transmission by means of telecommunication”

63. What, technically, happened when each of the appellants spoke into the microphone?  As explained by Mr Ching Kai Sang, an engineer employed by the Office of the Telecommunications Authority, the position in essence was this : The microphone picked up the speaker’s sound and converted the sound energy into electrical energy.  This was passed to an “audio mixer” for onward transmission to the radio transmitter.  The radio transmitter then modulated the audio signals onto the selected frequency and transmitted the radio waves through an antenna.  The radio waves transmitted in this way were then picked up by a radio receiver (tuned to the selected frequency : In this case 102.8MHz) and converted back to the original audio signals.  The speaker’s message thus reached the listener’s ears.

64. Does this constitute delivering a message for transmission by means of telecommunication?  As a matter of plain language it seems to me indubitably Yes.  What was transmitted, and intended to be transmitted, was the original message or speech; the means of transmission was by telecommunication.

65. Counsel for the appellants, in essence, submits as follows : the words “delivers any message for transmission” in s 23 are aimed at persons who “give business” to the operator of the unlicensed radio station such as advertisers and the like by providing the operator with the advertising material, and are not intended to criminalize “guest panelists in public affairs programmes”, even though they know perfectly well that what they say would be transmitted by means of telecommunication by the unlicenced radio station.

66. Counsel sought to derive support for his submission from the old Telecommunication Ordinance 1936, s 16, which referred to delivery of messages for transmission by telegraph; this would generally target the person handing over the text of a written message at the telegraph office, with the intention that the message be transmitted by telegraphic means.  The words in the class 3 offence should be construed in this restricted manner, as counsel submits.

67. I cannot agree. The words in s 23 “delivers any message for transmission” are plain words[2]. A person who talks into a microphone can, in ordinary parlance, be said to be making a speech or delivering a message : The message can be as grave and weighty as “War is declared”, or something as poignant as “Good night, and good luck”[3]. Technically, what happens (in a case such as the present one) is this: The sound energy constituting the message is converted into electrical energy, and thus begins the process of transmission by telecommunication.  It would seem that the process of transmission as outlined in para 63 above is done by purely mechanical means (doubtless, in today’s world, by computers).  Whether, in earlier times, any human intervention was involved is beside the point: If it was, the person would be transmitting the message by means of telecommunication and would fall into the class 1 offence.

68. In section 2 of the Ordinance, the definition section, “communications” includes “speech”, and “message” means “any communication sent or received by telecommunication”. Obviously the words “sent by telecommunication” must be there; if it were not, the matter would be outside the scope of the Ordinance.

69. The words in section 23 are not used in any unusual sense.  I would adopt the same approach to construing s 23 as Lord Reid did in Cozens v Brutus [1973] AC 854 at 861 in dealing with the words “insulting behavior” in terms of s 5 of the Public Order Act 1936[4]. Lord Reid said in effect this : There was no question of the word “insulting” in that case being used in any unusual sense; it was a matter for the magistrate to decide, not as law but as fact[5], whether in the whole of the circumstances the words of the statute did or did not as a matter of ordinary usage of language apply to the facts which had been proved.  Were it otherwise one would reach an impossible position.  When considering the meaning of a word one often went to a dictionary.  There one would find other words set out.  And if one pursued the matter further and found the meaning of those others words, the dictionary would give the meaning of those other words in still further words – which often included the word for whose meaning one was searching in the first place.

70. The way to avoid such vain pursuit is to take the word in its ordinary meaning as it stands, which is apparently[6] what the magistrate did in this case.  On appeal to M Poon J in the Court of First Instance, the judge appears to have adopted the same approach.  She said (§25 of her judgment) : “…. 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”.

“Communication sent or received by telecommunications or given to a telecommunication office to be sent by telecommunications or to be delivered.”

71. It would be convenient at this point to address a point made by Mr Martin Lee SC to this effect : When one sees the full definition of “message” in section 2 of the Ordinance, it can be seen that the focus is not on the person broadcasting in front of a microphone; rather, it brings the spotlight on things like the written text handed over at a telegraph office for transmission by telegraph, or the advertising material given to the operator of a radio station for transmission through the air waves.

The full definition of “message” in s 2 is as follows :

“Message (訊息) means any communication sent or received by telecommunication, or given to a telecommunications officer to be sent by telecommunications or to be received”.

72. Mr Lee puts emphasis on the words italicized above which plainly can only refer to the written (and perhaps oral) text handed over to an employee for transmission by telecommunication.

73. There is merit in Mr Lee’s submission but it does not carry him all the way home.  The fact that s 23 together with the definition section in the Ordinance cast a net wider than the circumstance of the present case does not mean  that the words in the charge “delivered messages for transmission [by unlawful means]” do not bear their ordinary meaning.

“Or takes delivery”

74. Mr Lee has another arrow in his quiver.  He says in effect this : Look at s 23.  It does not simply say “delivers any message for transmission [by unlawful means]” (class 3) : it goes on to say (the class 4 offence) “or takes delivery of any message sent [by such means]” which must necessarily refer to material objects; it cannot, as a matter of ordinary language encompass the situation of someone tuning in and listening to an unlawful broadcast by a “pirate” radio station.

Conclusion on Question 1

75. The submissions in paras 71-74 have force.  Section 23 of the Ordinance is awkwardly worded.  It is derived from s 16 of the 1936 Ordinance.  The technology in telecommunication has advanced greatly since 1936, accelerated by the intervening World War II.  When the 1962 Ordinance came to be enacted, the field of telecommunication had greatly widened.  The draftsman faced the task of using words which encompassed the new developments in telecommunication, but left room to control the use of such antiquated things as “telegraph”.

76. There was a suggestion in the course of argument that if the appellants were guilty of anything it would have been a class 1 offence under s 23, not class 3.  That, in my view, is not right.  As a matter of language, it seems to me that class 1 and class 2 go together; class 1 catches the person who transmits (if there is such person, by operating the apparatus); class 2 catches the person who “performs any service incidental” thereto.

77. Whether the person who speaks into the microphone is, in ordinary parlance, “transmitting” is debatable.  When Ed Murrow, the American war reporter[7], made his famous broadcasts in 1940 there would doubtless have been those who said that he was “transmitting” from war-torn London, even though in truth it was the BBC World Service which was doing the transmitting.  This was simply shorthand speech. 

78. Take the instance of the Queen of England’s annual Christmas message, broadcast to different people in different time-zones right across the world.  Assume that it is pre-recorded in Buckingham Palace and subsequently broadcast to the different countries, tuned in to receive the message.  Mr Martin Lee SC would presumably accept that what Her Majesty the Queen did was to deliver her Christmas message for later transmission by means of telecommunication.  The time for transmission would have been chosen by the operators of the networks, aimed at the best time for reception at the different time-zones.  This would clearly be a class 3 act.  In making the pre-recording the Queen was clearly not ‘transmitting” from Buckingham Place.  Assume the Queen had made a live broadcast.  Would this have then to be classified as a class 1 act?  What if there was a gap of 5 minutes between the pre-recording and the broadcast?  Or a gap of half a minute?

79. Such contortion with language might be necessary if the word “transmit” had a special meaning in the Ordinance.  But it has none.  It is used in its ordinary every day sense.  In both instances the ordinary person would surely have said that the Queen was simply delivering her annual Christmas message.  Full stop.

80. Having regard to the scheme of s 23 as a whole, I have come to the clear conclusion that the appellants’ acts fell within class 3, and that, subject to the constitutionality issue, the appellants were guilty as charged.

81. I would answer the first question Yes.  I therefore proceed to deal with Question 2.

Question 2

82. Question 2 for our determination is as follows :

Is the class 3 offence under section 23 of the Telecommunications Ordinance constitutional?

83. In para 15(1) of the case stated, the respondent is recorded as having conceded that section 23 by itself is a restriction on the right to freedom of expression.  I have doubts as to the wisdom of such concession in so far as it relates to the class 3 offence.  It is difficult to see the constitution – indeed any constitution in the common law world – protecting freedom of expression through unlawful means.  If the radio spectrum is to be safeguarded by a regulatory regime, then there must be criminal sanctions for misuse.

84. The public interest in safeguarding the radio spectrum is paramount, and obvious.  It serves a wide variety of essential activities: aviation, emergency services, public information, etc.  It is a limited resource.  I see nothing disproportionate or unnecessary in the law criminalizing those who, with their eyes open, flout the law by using the illegal system to “send out messages”, to use the learned judge’s expression (§25 of her judgment).

 85. Mr Lee SC says that construing the section as the judge did, and upholding its constitutionality, it would mean that if a microphone were held out to a passer-by in the street (to a person who had reason to believe that a “pirate station” was being operated) and that person made some passing remark into the microphone, he would have committed a class 3 offence.  That sets the bar far too low.  The ingredient of the offence “delivers a message for transmission” carries with it an intent: As the judge in effect held, an intent to “use the system” to deliver a message.

86. In my judgment the answer to the second question is Yes.

87. I would dismiss the appeal.

Lord Hoffmann NPJ:

88. I agree with the judgment of Chief Justice Ma but add a few words on the question of construction.

89. The Telecommunications Ordinance Cap 106 prohibits the establishment of any means of telecommunication (which includes radio broadcasting) without a licence from the Chief Executive in Council.  On 20 April 2008 an organization called Citizen’s Radio, an unlicensed broadcaster, staged a protest against the licensing system.  It set up its equipment on a pavement in Mong Kok and a number of people spoke into the microphones and took part in the broadcast. They included the appellants, who were charged with contravention of s 23 of the Ordinance:

“Any person who, knowing or having reason to believe that a means of telecommunications is being maintained in contravention of this Ordinance, [1] transmits or receives any message by such means of telecommunications or [2] performs any service incidental to the transmission or reception of any such message or [3] delivers any message for transmission by such means of telecommunications or [4] takes delivery of any message sent thereby shall be guilty of an offence and shall be liable on summary conviction to a fine at level 5.”

90. I have inserted numbers in square brackets to indicate that s 23 actually creates four separate offences, referred to in these proceedings as Classes 1 to 4[8]. The appellants were convicted of a class 3 offence.  They were said to have delivered a message for transmission by an unlicensed means of communication.  They do not deny that they knew that Citizen’s Radio was unlicensed.  Indeed, that was the point they were making.  But they appeal to this court on two grounds.  One is that they did not commit a class 3 offence.  By speaking into the microphone, they did not deliver a message for transmission.  They transmitted it.  That would prima facie have been a class 1 offence, but their second ground is that such an offence is unconstitutional because it is a disproportionate interference with freedom of expression.

91. The second ground is obviously the more important, but the first is logically anterior to it.  If the appellants did not commit the offence charged, it is unnecessary to decide whether such an offence would have been constitutional or not.

92. The first question is therefore whether, for the purposes of s 23, the appellants should correctly be described as having transmitted their messages or delivered them for transmission.  That is not a question which can be answered, as the respondents seem to contend, simply by looking up “transmit” in a dictionary.  The language of s 23, like that of any statute, has to be read in its historical context.  That goes back to developments in telecommunications in the nineteenth century.

93. The first apparatus for transmitting messages at a distance by an electromagnetic current was the telegraph, patented by Samuel Morse in 1840.  In its original form, this required someone to operate the equipment at each end.  Typically, the customer would write his message on a piece of paper and deliver it to the telegraph office.  The operator would transmit the message over the wire to the receiving office, where his colleague would write it down and deliver the paper to the intended recipient.  The message, whether as delivered to the telegraph office, transmitted over the wire or delivered to the recipient, was called a telegram.

94. This was the only system of communication by electro-magnetism in existence when the United Kingdom Telegraph Act 1869 was passed to give the Postmaster-General “the exclusive privilege of transmitting telegrams within the United Kingdom” and also “the exclusive privilege of performing all the incidental services of receiving, collecting or delivering telegrams”.  In 1877 Edison patented the telephone.  In Attorney-General v Edison Telephone Company of London (1880) LR 6 QB 244, the court had to decide whether a company set up to work the patent in the United Kingdom would be infringing the Crown monopoly.  Stephen J, giving the judgment of the Exchequer Division, decided that a telephonic communication was a “telegram” within the meaning of the 1869 Act.  True, one no longer needed to write it down and have someone transmit it.  You could do it yourself by speaking into that part of the telephone called the “transmitter”. But, said the judge:

“It would be a strange thing to say that improvements by which a step in a given process can be dispensed with, and by which the process itself may be perfected, destroy the character of the process.”

95. There was also the question of whether the conversation could be said to have been “transmitted”.  Stephen J said:

“A small question was raised on the word ‘transmitted’. When one person speaks to another it was said he ‘makes,’ but does not ‘transmit,’ a communication. The answer is, that when he speaks through a wire some miles long he sends what he says through the wire, or transmits it.”

96. This passage shows that Stephen J, a master of English prose who drafted an Evidence Act and Contract Act for India, had no difficulty in saying that a person who speaks into a telephone “transmits” his message and that such was its meaning in the Telegraph Act 1869.

97. Section 23 of the Telecommunications Ordinance substantially reproduces the language of s 16 of the Telecommunications Ordinance 1936.  In order to understand the effect of this earlier provision, it is necessary to consider the scheme of the 1936 Ordinance.  By s 3 it conferred upon the Governor in Council what the United Kingdom 1869 Act had conferred upon the Postmaster-General, the “exclusive privilege of establishing, maintain and working telegraphs”.  By 1936, telephone and wireless communication was well known but telegrams were still common.  A “telegraph” was defined to include “appliances and apparatus for transmitting, receiving or making telecommunications”. “Telecommunication” was defined as “any telegraphic or telephonic communication…by wire, wireless, or any other system…” The “telegraph” in respect of which the Governor in Council had a monopoly was therefore the hardware for electric communication, whether by wireless, telephone or old-fashioned telegraph.

98. Section 15 creates the offence of establishing, maintaining or working an unlicensed telegraph. The prescribed penalty is a fine of $1,000 and a further fine of $500 for each week in which the unlicensed telegraph is maintained or worked.  Section 16, the predecessor of s 23 of the current ordinance, has the side-note “Using such telegraphs”.  It provides that –

“Any person who, knowing or having reason to believe that a telegraph has been established or is maintained or worked in contravention of this Ordinance, transmits or receives any message by such telegraph, or performs any service incidental thereto, or delivers any message for transmission by such telegraph, or accepts delivery of any message sent thereby, shall be liable to a fine not exceeding fifty dollars.”

99. “Message” was defined as “any telecommunication sent by telegraph or handed to a telegraph officer to be sent by telegraph or to be delivered”.

100. In  my opinion it is perfectly clear from ss 15 and 16 of the 1936 Ordinance that the persons actually working the telegraph or telephone system, while they might also be said to be engaged in transmitting messages, were intended to be charged with the more serious offence under s 15.  It was those who were only using the system, with knowledge that it was unlicensed, who were intended to be charged under s 16.  On that basis, the scheme of s 16 is rational and gives effect to the natural meaning of the words used.  Class 1 offences are committed by people who use the system to transmit messages themselves, as they can by telephone or radio.  Class 2 deals in general terms with services incidental to such transmissions, such as publishing a telephone book for users of an unlicensed telephone system.  Classes 3 and 4 deals with old-fashioned telegrams sent by a system in which the users cannot make or receive the transmission themselves.

101. In my opinion s 23, which uses substantially the same language, was intended to have the same effect.  To say that the appellants, by speaking into the microphone, were “delivering a message for transmission” by radio is an awkward description of what they were doing.  “Transmitting” the message is much more appropriate language.  I would therefore allow the appeals.

102. It is therefore unnecessary for the Court to consider the proportionality of the licensing system as applied to broadcasters like Citizen’s Radio.  I find this a difficult question which would involve a more thorough examination of the technical evidence than it seems to have received so far and I would therefore prefer not to express an opinion about it.

Chief Justice Ma:

103. By a majority decision (Mr Justice Litton NPJ dissenting), the appeals are allowed and the convictions of the appellants are set aside.  The Court further makes an order nisi as to costs in terms as set out in para 40 above.