SECRETARY FOR JUSTICE v. OCEAN TECHNOLOGY LTD AND OTHERS

HCMA 173/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.173 OF 2008

(ON APPEAL FROM ESS Nos. 31207-31211 OF 2006, 36868-36870

OF 2006, 36871-36873 OF 2006 and 36925-36927 OF 2006)

----------------------

----------------------

------------------------

J U D G M E N T

----------------------

Hon Ma CJHC:

1.  For the reasons contained in the judgment of Stock JA, I too would allow the appeal.  I also agree with the proposed orders.

Hon Stock JA:

The issue

2.  Section 20 of the Telecommunications Ordinance, Cap 106, when read with s.8, creates the offence of establishing or maintaining a means of telecommunications save under a licence granted by the Chief Executive in Council.

3.  The respondents to this appeal were charged with contravening those provisions.  The magistrate acquitted them.  He found that the licensing regime prescribed by the Telecommunications Ordinance was not prescribed by law and was therefore unconstitutional and it followed that, as he put it ‘the charges … were unconstitutional.’

4.  This is an appeal by way of case stated from that decision.

5.  The key question raised by this appeal is whether the constitutionality of the statutory licensing regime prescribed by the Telecommunications Ordinance has any bearing on the constitutionality of the offence-creating provisions.

6.  Although the case stated does not pose the issue in those terms and although it asks further and much wider questions, the issue I have identified is the one which the magistrate ought first to have identified and answered.  Had he done so, much else would have fallen away.

Background

7.  The first respondent, Ocean Technology Ltd, is a company registered in Hong Kong in 2005.  The second respondent is its sole shareholder and one of its directors.  In September 2005, the company applied for a licence to operate a non-commercial and non-profitmaking radio station called “Citizens Radio Station” to provide a sound broadcasting service.  The application was to establish, in the first stage, an FM station that would operate a community radio service.

8.  On 12 December 2006, the Chief Executive in Council rejected the application. 

9.  It is alleged against the first and second respondents that before the rejection of that licence application, they established a transmitting system, that other respondents conspired with them to do so, and that one or more of them used that system; in short, that they were engaged in broadcasting without a licence.

10.  Accordingly, the respondents were charged with a variety of offences contrary to ss. 8 and 20 of the Telecommunications Ordinance, Cap 106.  Those provisions make it an offence to establish or maintain any means of telecommunications, or to use apparatus for radio communications, save under and in accordance with a licence granted by the Chief Executive in Council.  There were 14 charges alleging offences between July 2005 and October 2006.

11.  On 12 November 2007, the respondents appeared before Mr Douglas Yau, a magistrate sitting at the Eastern Magistracy.  The respondents pleaded not guilty to each charge and contended that the provisions pursuant to which the charges had been laid were unconstitutional in that they were allegedly contrary to art. 27 of the Basic Law and art. 16 of the Hong Kong Bill of Rights Ordinance which protect freedom of expression. 

12.  Art. 39 of the Basic Law provides that freedoms enjoyed by Hong Kong residents shall not be restricted “unless as prescribed by law” and art. 16 of the Bill of Rights Ordinance similarly provides that restrictions shall only be such as are “provided by law”, whereas, the argument ran, the power given to the Chief Executive in Council by the Ordinance to refuse applications for a broadcasting licence (and thereby to restrict freedom of expression) was not “prescribed by law”.

13.  Although the case stated records the arguments in the court below that the legislative requirement to obtain a licence for broadcasting was itself a disproportionate restriction on the freedom of expression and that the licensing regime was “not proportionate to legitimate aims”,[1] the magistrate determined the matter on the basis of that which he described as “one single issue – whether the licensing regime is prescribed by law as required by articles 27 and 39 of the Basic Law and article 16 (3) of the Hong Kong Bill of Rights."[2]  That, too, is the single basis upon which the respondents have argued their case in this Court.

14.  The magistrate held that the provisions in question were unconstitutional as not being prescribed by law, and he dismissed the charges.

15.  On 9 January 2008, the Secretary for Justice applied to the magistrate to state and sign a case pursuant to the provisions of s. 105 of the Magistrates Ordinance, Cap 227.  The case stated was signed on 15 February 2008 and on 10 March 2008 a judge of the Court of First Instance directed under s. 118(1)(d) of the Magistrates Ordinance that the appeal by way of case stated should be heard by the Court of Appeal.  This is that appeal.

What the case is not about

16.  The complaint that the relevant statutory provisions are not prescribed by law rests on the contention that the licensing discretion vested in the Chief Executive in Council is unfettered.  Whether, even if that were so, that affects the validity of the offence-creating provisions is an issue which we must address, but there was much in the argument before us that disclosed grievances that, on any view, do not fall for us to determine in these proceedings.

17.  There were suggestions that the statutory regime for broadcast licences does not cater for modern needs; that, by comparison with countries of similar population, Hong Kong falls woefully behind in the number of radio stations that operate; that the prosecution of these respondents was unfair; that the applicants had, as allegedly evidenced by the grant of a licence to others, been excluded from fair consideration by reason of their political leanings; that the application for a licence was not fairly considered; that there was undue delay in its consideration; that the decision maker took into account irrelevant matters and failed to take into account relevant factors; that, contrary to the decision maker’s assertion, FM frequencies were available; and that there exists no policy for community radio, where such a policy ought to have been espoused.

18.  It is important to recognize that this case is not an application for judicial review of the decision of the Chief Executive in Council to refuse to issue a licence to the respondents.  Neither is it a challenge to the legality of the Government’s view or decision that there is no need in Hong Kong for community radio services.  The case stated does not raise any question for our determination as to the reasonableness of the decision to refuse the application for a licence; whether there has been bias against these respondents; whether there has been a procedural flaw; whether there is irrationality in the present stance against community radio; or whether a decision generally to deny community radio services would be one that of itself is an unlawful infringement of the freedom of expression.  The sole issue with which this Court is concerned is whether the offence-creating provisions constituted by ss.8 and 20 of the Telecommunications Ordinance are unconstitutional.

The Constitutional Provisions

19.  Art. 39(1) of the Basic Law gives constitutional effect to the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong and requires at (2) that:

“The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.  Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”

20.  The relevant provision of the ICCPR is art. 19.  Its terms, in so far as is relevant to this appeal, are as follows:

“(2)  Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3)  The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities.  It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary –

(a)  for respect of the rights or reputations of others;

(b)  for the protection of national security or a public order (ordre public), or of public health or morals.” 

21.  Art. 19 of the ICCPR is repeated in art. 16 of the Hong Kong Bill of Rights.

22.  It is relevant to note, since some of the cases to which we have been taken involve application of the European Convention on Human Rights and Fundamental Freedoms, that art. 10 of that Convention has an emphasis omitted from art. 19 of the ICCPR, in that art. 10 expressly provides that the freedom of expression which it guarantees ‘shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises’.  Its omission from art. 19 was deliberate, though the difference in the two is of no practical consequence because the same proviso is implicit in art. 19, since art. 19 permits restriction where necessary for the protection of public order (ordre public): Groppera Radio AG v Switzerland[3].

23.  Also prayed in aid by the respondents is art. 27 of the Basic Law:

“Hong Kong residents shall have freedom of speech, of the press and publication; …”

The Ordinances

(1)  The Telecommunications Ordinance, Cap 106

24.  The Telecommunications Ordinance makes provision for the establishment of a Telecommunications Authority.  That Authority is empowered to grant or create certain licences with which we are not in the present case concerned.  What is engaged in this case is a power entrusted to the Chief Executive in Council.

25.  Part IIIA[4] of the Ordinance was added in 1989 and “provides a self-contained regulatory regime for sound broadcasting and establishes the role of the Broadcasting Authority in assessing applications for sound broadcasting licences and in regulating the ownership of sound broadcasting licensees.”: see The Annotated Ordinances of Hong Kong[5]. 

26.  Only a Hong Kong registered corporation may apply for and be granted a licence to establish and maintain a broadcasting service: ss.  13B and 13F.

27.  Applications to establish and maintain a broadcasting licence must be made to the Broadcasting Authority: s. 13B.  The Ordinance requires that Authority to consider such applications and to make recommendations thereon to the Chief Executive in Council: s. 13C(1).  Having considered such recommendation as is made by the Broadcasting Authority, the Chief Executive in Council may grant a licence which shall be subject to the payment of a fee, royalty or other charge and to such terms and conditions as the Chief Executive in Council may specify in the licence: s. 13C(2). 

28.  There is a list of persons who are disqualified from exercising control of a corporation which is a licensee with power, however, in the Chief Executive in Council, to grant a licence to a corporation that is a disqualified person: ss. 13G and 13A.  There is a category, too, of those not qualified to hold more than 49% of the total number of voting shares in the licensee corporation: s. 13I; they include, for example, those who have not been ordinarily resident in Hong Kong for seven or more years.

29.  Section 13M prohibits a licensee from broadcasting material likely to incite race, gender, or religious hatred and the Chief Secretary for Administration is empowered to apply to the Court of First Instance where he reasonably believes that the broadcast of material will contravene that prohibition.

30.  Section 13O provides that:

“The Chief Executive in Council may make regulations for the purpose of –

(a)  establishing standards for the programmes and advertising material to be broadcast by licensees; and

(b)  providing for the technical requirements with which a licensee shall comply in broadcasting.”

We were told that no regulations have been promulgated pursuant to that section.

31.  The offence-creating provision with which we are concerned is s. 20 when read with s. 8.  

32.  Section 8 provides that:

“Save under and in accordance with a licence granted by the Chief Executive in Council or with the appropriate licence granted or created by the Authority, no person shall in Hong Kong or on board any ship, aircraft or space object that is registered or licensed in Hong Kong –

(a)  establish or maintain any means of telecommunications; or

(aa)   …

(b)  possess or use any apparatus for radio communications or any apparatus of any kind that generates and emits radio waves notwithstanding that the apparatus is not intended for radio communications;

… ”

33.  Section 20 stipulates that any person who contravenes s. 8(1) shall be guilty of an offence.  Such a person is liable on summary conviction to a fine of $50,000 and to imprisonment for two years, and on conviction on indictment, to a fine of $100,000 and to imprisonment for five years.    

(2)  Broadcasting Authority Ordinance, Cap 391.

34.  The Broadcasting Authority is established by s. 3 of the Broadcasting Authority Ordinance.  Its membership is prescribed by s. 4 which states that the Authority shall consist of three public officers and not less than six nor more than nine persons who are not public officers but who are ordinarily resident in Hong Kong and who have been so resident for at least seven years, all of whom are to be appointed by the Chief Executive.

35.  Section 9 prescribes the functions and powers of the Authority: 

“(1)  The Authority shall have the following functions –

(a)  …

(b)  the functions imposed on it under Part IIIA of the Telecommunication Ordinance (Cap 106);

(c)  to administer the provisions of licences and any other provisions of such licences that confer a function on the Authority;

(d)  to secure proper standards of television and sound broadcasting with regard to both programme content (including advertisements) and technical performance of broadcasts including, without limitation, restrictions on the time of day when programmes and advertisements may be provided, whether for the same or different licensees or broadcasts;

(e)  to submit proposals and recommendations to the Chief Executive in Council with respect to technical, programme and advertising standards of television and sound broadcasting in order to assist the Chief Executive in Council in the making and amendment of regulations under the Broadcasting Ordinance (Cap 562) or under Part IIIA of the Telecommunications Ordinance (Cap 106) governing such standards;

…

(2)  The Authority shall have, in addition to the powers expressly or impliedly conferred on it by or pursuant to this Ordinance, the Broadcasting Ordinance (Cap 562) or Part IIIA of the Telecommunication Ordinance (Cap 106) or any other Ordinance, such incidental powers as are reasonably necessary for the performance of its functions.”

36.  Section 19authorises the Broadcasting Authority to issue Codes of Practice :

“(1)  The Authority may from time to time-

(a)  issue Codes of Practice relating to standards of programmes and advertisements broadcast by a licensee; and

(b)  on the advice of the Telecommunications Authority, issue Codes of Practice providing for the technical requirements with which a licensee shall comply in broadcasting.

(2)  Codes of Practice issued under this section shall not be inconsistent with standards established by regulations made under section 13O of the Telecommunications Ordinance (Cap 106).”

37.  Section 20 confers upon the Authority the power to issue directions to a licensee requiring the licensee to take such action with regard to the standards of its programmes or with regard to the technical standards of its broadcasts as to make them complicit with regulations promulgated under s. 13O of the Telecommunications Ordinance and Codes of Practice issued under s. 19 of the Broadcasting Authority Ordinance.

38.  Section 26 provides a mechanism whereby a licensee aggrieved by a decision of the Broadcasting Authority in the exercise of a discretion conferred on it under the Broadcasting Authority Ordinance, or Part IIIA of the Telecommunications Ordinance or regulations made thereunder, or by anything contained in a Code of Practice or direction issued by the Broadcasting Authority may appeal by way of petition to the Chief Executive in Council. 

Codes of Practice

39.  Three radio Codes of Practice have been issued under s. 19 of the Broadcasting Authority Ordinance.  They are:

(1)  the Radio Code of Practice on Programme Standards, issued in November 2006.  It is a code which stipulates general standards to be observed.  These include a prohibition against the dissemination of indecent or obscene material or material likely to encourage hatred on the basis of ethnicity, race, gender, religion and other matters of that kind; against favourable portrayal of crime; and advice on programmes with a violent or sexual content and as to impartiality;

(2)  the Radio Code of Practice on Advertising Standards, issued in May 2007, which includes a list of products or services unacceptable for advertising, and a list of products and services in respect of which there exists specific legislative constraints; and

(3)  the Radio Code of Practice on Technical Standards, issued in August 2003, which prescribes technical requirements for MF, AM, VHF and FM sound broadcasting, and for transmitter equipment.

40.  These Codes of Practice are available online on the Broadcasting Authority’s website.

Information required of an applicant

41.  There is no prescribed form for a sound broadcasting licence application nor are there guidance notes for those who wish to apply for a licence.  However, any party interested in applying for such a licence is in practice provided with a document entitled: “Information to be provided by sound broadcasting licence applicants.”  Such a document was provided to the applicant for a licence in this case.

42.  The information document is divided into five categories: company information; financial information; programming information; technical information; and “other information”.

43.  Included under “company information” are requests for details of the shareholding structure, details of the shareholders, copies of the memorandum and articles of association, management structure, and relevant experience in running similar operations.

44.  The financial information sought is, as one would expect, directed at evidence of sound financial backing and includes a request for balance sheets, banker’s confirmation of the amount of deposits and credit facilities, investment plans, projected profit and loss accounts, and projected market share that the applicant will be able to acquire.

45.  Amongst the programming information that is sought are details of the programmes to be provided, of daily broadcasting hours, and of the proposed internal monitoring system to ensure compliance with licence conditions and Codes of Practice.

46.  The technical information required includes details of the locations of transmitters, frequencies to be used, transmission power, technology to be employed, the planned geographical coverage of the network, studio facilities, the preferred frequency bands and the amount of frequency spectrum that will be used for the provision of the proposed service.

47.  Other information required includes details of construction work proposed, the period between the grant of a licence and the commencement of service, and a demonstration that the implementation of the proposal will offer benefits to Hong Kong.

History

48.  The application was submitted by the first respondent in September 2005.  It was for a licence that would enable the operation of a community radio station, broadcasting on FM frequency.  The targeted audience were local communities and it said that its mission was to provide diverse programming, strive for cultural diversification and provide a venue for the expression of opinions and for the needs of minorities.  It was said that a technical support department would be established but, at the date of the application, details about equipment and other technical and transmission information were not supplied.  The initial capital investment in transmission facilities was said to be in the region of $2 million.  The main source of funding was to be shareholders’ contribution and public donations.  Funds would be raised once the licence was granted.

49.  On 5 October 2005, the Broadcasting Authority told the solicitors acting for the applicant company that further information was required.  Under the heading “Technical Information”, the company was informed that the Office of the Telecommunications Authority (OFTA): had advised that there was no FM frequency available for the proposed territory wide service.  The company was asked to provide an alternative feasible technical proposal.  There then followed 35 items of information that were requested.  The answers to those questions were submitted on 22 November 2005.

50.  The chronology then jumps to August 2006. On 9 August 2006, the Broadcasting Authority wrote to the Communications and Technology Branch of the Commerce, Industry and Technology Bureau of the HKSAR Government.  The letter records the fact that at its meeting of 27 July 2006, the Broadcasting Authority had decided to recommend to the Chief Executive in Council that the company's application to operate a community radio service be rejected.  It said that the grounds for the recommendation were that: “…given that radio spectrum is a valuable community resource [the company] has not demonstrated that its technical proposal on the use of radio frequency spectrum is feasible nor has [the company] demonstrated its management, financial, technical capability to manage a sound broadcasting service.”  It asked the Branch to forward its recommendation to the Chief Executive in Council for consideration.

51.  On 16 October 2006, the Branch wrote to the company advising it of the Broadcasting Authority’s recommendation and added its, that is to say the Government’s, views on the matter.  It stated that: “The government’s position is that we do not consider there is a need for [community radio] services in Hong Kong.”  Hong Kong was a geographically small and compact city and the existing broadcasting services already catered for the public’s diverse needs.  There were emerging media outlets such as on-line radio and podcasting.  In addition, all FM frequencies had been assigned, although “in theory, some FM frequencies may be identified for low-power broadcasting covering a small localised area,” but “identifying frequencies for such localised coverage will require considerable public resources due to the heat rain and high density of tall buildings in Hong Kong,” and that the deployment of public resources to identify such frequencies was not justified.  There were AM frequencies which were unassigned but the reception quality was poor.  In any event, were the Government to decide that community broadcasting services should be introduced into Hong Kong, assignment of the spectrum, if available, would depend upon the result of invitations to apply for licences “to ensure that the most meritorious applicants would be awarded the right to use the limited spectrum.”  Such spectrum could only be assigned “through a fair, open and transparent process.”

52.  The company was invited to respond so that its response to the Broadcasting Authority’s proposed recommendation could be submitted to the Chief Executive in Council.  The company availed itself of that opportunity.

53.  By letter dated December 2006, the Branch informed the company of the rejection of its application by the Chief Executive in Council.  The letter said that:

“The factors which the Chief Executive in Council took into account before reaching the decision include the feasibility of your technical proposal on the use of radio frequency spectrum, and your management, financial and technical capability to establish and maintain a sound broadcasting service."

The charges

54.  There were 14 charges:

(a)  In the 1^st charge, the allegation was that the company had, without a licence granted by the Chief Executive in Council or an appropriate licence created by the Telecommunications Authority, established a means of telecommunications at the hillside of Lion Rock between 8 July 2005 and 29 August 2006; contrary to ss. 8(1)(a) and 20 of the Telecommunications Ordinance.

(b)  The 2^nd charge accused the second respondent of aiding and abetting the commission of the first offence.

(c)  The 3^rd, 4^th and 5^th charges were against the third fourth and fifth respondents respectively and alleged that on 29 August 2006, each had, without a licence granted by the Chief Executive in Council or an appropriate licence granted or created by the Telecommunications Authority, used a transmitting system at the hillside of Lion Rock by a remotely controlled mobile telephone located in Chai Wan; contrary to ss. 8(1)(b) and 20 of the Telecommunications Ordinance.

(d)  The 6^th, 7^th and 8^th charges were laid against the company and the second and sixth respondents respectively and charged them with conspiring to establish in Mongkok a means of telecommunications without the requisite licence.

(e)  The 9^th, 10^th and 11^th charges were laid against the second respondent, the company and the fifth respondent respectively and charged them with offences allegedly committed on 13 October 2006: the second respondent was charged with using a transmitting system on that day in Chai Wan; and the company and the fifth respondent were charged with maintaining the transmitting system that day at that place, each without the requisite licence; and

(f)  the 12^th , 13^th and 14^th charges were levelled against the company, the second and sixth respondents respectively each alleging a conspiracy in early October 2006 to establish a means of telecommunications in Wan Chai, without the requisite licence.

The magistrate’s findings

55.  On 8 January 2008 the magistrate issued his ruling on the constitutional issue.

56.  The magistrate held that s. 13C(2) of the Telecommunications Ordinance conferred upon the Chief Executive in Council an unfettered discretion whether to grant or refuse a licence: “What the citizen should be able to know with certainty is the scope of his discretion, of how the Chief Executive in Council will exercise his discretion, what criteria will he base his decision upon, if the citizen complies with all the requirements set out in the ‘Information’ and the ‘Radio Code of Practice’, would he then be granted a licence, if not then why not, will he receive any explanation from the Chief Executive in Council, and whether there is a way to challenge his decision.  The law is silent on all these matters.”[6]  Furthermore, there was no requirement for the Chief Executive to provide an explanation for a refusal nor was there any provision for a challenge to his decision.[7] 

57.  He went on to say that “under the premise of legal certainty, I would also include the requirement that the decision-making body of the granting of licences be independent of government.  The citizen is entitled to know for sure that the decision-making body will not take into consideration irrelevant facts such as the applicant being associated with a ‘known political activist’ when exercising his discretion.  As long as the power rests in the hands of the Chief Executive alone, based upon the recommendation of a body, members of whom were appointed by him, there will always be the possibility and a suspicion that the political views of the applicant was an unspoken reason that the application was refused.”[8]  Since the Broadcasting Authority was constituted by three public officers and others appointed by the Chief Executive, the body was not independent and the power to grant or refuse a licence not subject, he found, to any statutory control.  He held that the lack of independence was of itself “not in accordance with the requirement that any restrictions on the freedom of expression and speech must be prescribed by law ...”[9]

58.  He concluded that since the discretion of the Chief Executive in Council was unfettered and since the decision was entrusted to a body not independent of government, “the restriction on the right to freedom of expression as implemented lacks certainty and is therefore not prescribed by law, and therefore in breach of Articles 27 and 39 of the Basic Law, as

well as Article 16 of the Bill of Rights Ordinance and unconstitutional.  Since the licensing regime is unconstitutional, it follows that any charges based upon a failure to comply with that [licensing] regime must also be unconstitutional.”[10]

Salient evidence

59.  Evidence placed before the magistrate included the following relevant to the present issue:

(1)  The International Telecommunication Union (‘ITU’) is responsible for allocating radio spectrum to its members.

(2)  The ITU imposes restrictions on each nation's use of the radio spectrum allocated to ensure that the use by one nation of radio frequency spectrum does not interfere with that of another nation.

(3)  China has been allocated part of the radio frequency spectrum.  Hong Kong has been assigned part of the frequency spectrum thus allocated. 

(4)  In Hong Kong, OFTA is responsible for administering radio frequency spectrum and allocating its use to different parties.

(5)  Users of radio frequency spectrum in Hong Kong include service providers of mobile telephones, taxi drivers, television and sound broadcasters, the police, fire and ambulance services, the Civil Aviation Department, and the military.

(6)  When radio frequency spectrum is granted to a particular body, OFTA allocates a certain range for that body’s exclusive use, so that messages might coherently be relayed.

(7)  That at the time of the application and since, there were no available FM frequencies for allocation in Hong Kong.  All had been assigned.

(8)  The administrative costs of regulating sound broadcasting services and administering sound broadcasting licences are recovered from the sound broadcasting licence fee paid by licensees to the Government.

The questions posed

60.  The questions of law posed by the case stated for determination by this Court are these:

“Did I err in law:

(1)  

(i)  in finding that because the decision to grant a sound broadcasting licence under section 13 of the Telecommunications Ordinance rests on the unfettered and unchecked discretion of the Chief Executive in Council, that this is contrary to the principle of legal certainty and thus not prescribed by law as required by Articles 27 and 39 of the Basic Law and Article 16 (3) of the Hong Kong Bill of Rights;

(ii)  in finding that because the Broadcasting Authority, being a body which makes recommendations to the Chief Executive in Council on whether a sound broadcasting licence should be granted, and the Chief Executive in Council who has the discretion to grant a licence under the Telecommunications Ordinance, are not independent of the Government, that this is an arbitrary restriction on the freedom of expression and is not prescribed by law as required by Articles 27 and 39 of the Basic Law and Article 16 (3) of the Hong Kong Bill of Rights;

(iii)  in finding that because there is no statutory right of appeal from the decision of the Chief Executive in Council refusing an application for a sound broadcasting licence under PART IIIA of the Telecommunications Ordinance, that this is contrary to the principle of legal certainty and is not prescribed by law as required by Articles 27 and 39 of the Basic Law and Article 16 (3) of the Hong Kong Bill of Rights; and

(2)  in ruling that the licensing regime for a sound broadcasting licence contained in PART IIIA of the Telecommunications Ordinance imposes a restriction on the right to freedom of expression which as implemented is contrary to the principle of legal certainty and is not prescribed by law and therefore breaches Articles 27 and 39 of the Basic Law and Article 16 of the Hong Kong Bill of Rights and is unconstitutional; and

(3)  in ruling that because I found the licensing regime under the provisions of PART IIIA of the Telecommunications Ordinance to be unconstitutional, that any charges including the charges laid against the Respondents which are founded upon a failure to comply with that regime, are also unconstitutional?”

Jurisdiction and the real issue

61.  A preliminary point is taken upon this appeal, namely, that the magistrate had no jurisdiction to consider the constitutional challenge to the licensing scheme prescribed by the Telecommunications Ordinance.  It was not a point argued in the court below. 

62.  The contention is that the challenge thus advanced was to an issue collateral to that in the criminal proceedings and that the Telecommunications Ordinance (‘the Ordinance’), properly construed, does not permit a defendant to a charge under ss. 8 and 20 of the Ordinance to impugn the constitutionality of the licensing procedure by way of defence.  It is argued that the correct and only avenue for such a challenge by an applicant who is refused a licence is an application for judicial review.

63.  We were treated to an extensive examination of authorities which have addressed the issue whether (and, if so, to what extent) a defendant might raise as a defence to a criminal charge the validity of a decision taken pursuant to statutory authority or whether he was consigned instead to running such an issue in proceedings for judicial review.  

64.  Although the issue is raised before this Court as a preliminary question, not canvassed in the court below, it arises in any event, so it seems to me, from the final question posed by the case stated.  That final question – had it been more appropriately framed – is the one with which the analysis in the court below ought to have commenced.  Had it been, and had the correct conclusion been reached, none of the other questions with which the court below or this Court have been burdened would have presented themselves for determination.

65.  The final question in the case stated asks whether charges ‘founded upon a failure to comply with [an unconstitutional licensing] regime are also unconstitutional.’  But the charges were not founded on a failure to comply with a licensing regime.  There was an application for a licence.  That application was lawful and regime-complicit.  What was at issue – and, aside from the question whether the respondents had indeed established means of telecommunication or used a transmitting system, it could be the only relevant issue – was whether the respondent company had a broadcasting licence and, if not, whether the offence-creating provision was itself unconstitutional as impermissibly infringing a protected right.  If the offence-creating provision is free-standing, in the sense that it survives constitutional scrutiny regardless of the validity of the licensing regime and of the licensing decision, then the remaining issues addressed by the magistrate – and by the case stated – were and are irrelevant.

66.  For the purpose only of the constitutional challenge, argument proceeded on the unspoken assumption (though not, of course, upon an admission) that the acts alleged had been committed and had taken place in the absence of a licence.  Further, it was accepted in argument before this Court that control of the airwaves by a ban on broadcasting without a licence was of itself a permissible fetter upon the freedom to impart and the right to receive information and opinions.

67.  That concession – that the requirement for a licence is a permissible fetter on the freedom of expression – is correctly made.  Whilst freedom of expression applies not only to the content of communication, but also to the right to receive and impart it (see Autronic AG v Switzerland[11]; Retrofit (Pvt) Ltd v Posts and Telecommunications Corporation[12]) it could not reasonably be suggested that such a requirement was of itself an impermissible restriction on the freedom of expression.  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.

68.  That was the point made in Red Lion Broadcasting Co v Federal Communications Commission[13]:

“Without government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard.”[14]

and further that:

“The right of free speech and broadcaster … does not embrace a right to snuff out the free speech of others….

  When two people converse face to face, both should not speak at once if either is to be clearly understood.  But the range of the human voice is so limited that there could not be meaningful communications if half the people in the United States were talking and the other half listening.  Just as clearly, half the people might publish the other half read.  But the reach of radio signals is incomparably greater than the range of the human voice and the problem of interference is a massive reality.  The lack of know-how and equipment may keep many from the air, but only a tiny fraction of those with resources and intelligence can hope to communicate by radio at the same time if intelligible communication is to be had, even if the entire radio spectrum is utilized in the present state of commercially acceptable technology.

  It was this fact, and the chaos which ensued from permitting anyone to use any frequency of whatever power level he wished, which made necessary the enactment of [legislation].  It was this reality which at the very least necessitated first the division of the radio spectrum into portions reserved respectively for public broadcasting and for other important radio uses such as amateur operation, aircraft, police, defense and navigation; … Beyond this, however, because the frequencies reserved for public broadcasting were limited in number, it was essential for the Government to tell some applicants that they could not broadcast at all because there was room for only a few.

  Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unbridgeable First Amendment[15] right to broadcast comparable to the right of every individual to speak, write, or publish.  If 100 persons want broadcast licenses but there are only 10 frequencies to allocate, all of them may have the same “right” to a license; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves.  It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the Government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum.

…

  No one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because “the public interest” requires it “is not a denial of free speech.”  National Broadcasting Company v United States, 319 U.S. 190, 227 (1943).

…

…  the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment.  It is the right of the viewers and listeners, not the right of broadcasters, which is paramount.”[16]

See also Observer Publications Ltd v Matthews and others[17].

69.  It must follow that no person has a right to a broadcasting licence.  Were it otherwise, the imperative for a regime of control of access to the airwaves would be meaningless.  However, there is a right conferred by law in this context, which is a right to fair consideration of an application for a licence and ‘not to have one’s access to public media denied on discriminatory, arbitrary or unreasonable grounds’ (see: R v Prolife (Alliance) v BBC[18]) or on any other grounds that fall foul of the constitutional protections afforded by the Basic Law.  

70.  Given that the requirement for a broadcasting licence is a permissible fetter on the freedom of expression, and that there is no right to a licence, it is difficult to see, in the context of the magistrate’s remit to determine the charges of establishing or otherwise operating means of telecommunications without a licence, and of the specific legislation under consideration, upon what basis it was relevant for him to determine whether the discretion of the Chief Executive in Council to grant or refuse a licence was prescribed by law.

71.  The examination to which I have referred, of cases directed to the issue whether magistrates have jurisdiction in criminal proceedings to determine the validity of an act done under statutory authority, is in the event of limited value to the present case, because we are not in my judgment concerned in this case with the validity of such an act.  That is because the legality of a decision to refuse a broadcasting licence has no bearing upon the constituent elements of the offence with which the respondents were charged.  A summary of those cases will suffice to illustrate the circumstances in which the legality of an administrative decision might properly fall for the determination of a magistrate in criminal proceedings, thereby to contrast the present case.

72.  In Quietlynn Ltd v Plymouth City Council[19] criminal proceedings were instituted by a number of local authorities against a company, alleging that the company had been using premises as sex establishments without a licence contrary to the provisions of a schedule to the Local Government (Miscellaneous Provisions) Act 1982.  That Act empowered a local authority to determine, by resolution, that Schedule 3 to the Act would apply to its area.  Schedule 3 constituted a statutory code for the control of sex establishments by means of licensing.  Three local authorities resolved that the Schedule should apply to their area.  In each area the company had been using premises as sex establishments before the Schedule was applied.  The Schedule contained provisions for the grant of licences and stipulated grounds for their refusal, as well as a right of appeal to the magistrates’ court against a refusal.

73.  Para. 28(1) of the Schedule provided that a person who had been using premises as a sex establishment before the Schedule came into effect in the relevant area and who had applied for a licence before an appointed day could lawfully continue to use the premises as a sex establishment until the determination of the application.

74.  The local authorities refused the company’s applications; but the company continued to use the premises as sex establishments and the criminal proceedings were, therefore, launched.  The justices convicted the company of the offences charged but, on appeal, the Crown Court allowed the appeals in two cases on the basis that the refusal of a licence by the relevant local authority was invalid since the local authority had, the Court found, breached specified procedural requirements and the rules of natural justice.  The local authorities appealed to the Divisional Court of the Queen’s Bench Division.  One of the arguments before that Court has been echoed before us.  It was said that it was a vital ingredient of the offence that there had been a valid determination of the application for a licence.[20]  In our case, it is said that the offence-creating provision presupposes the existence of a lawful licensing regime.

75.  It was held, allowing the appeals of the Councils, that absent a decision upon judicial review that the local authorities’ decisions were invalid, the decisions were to be presumed to be validly made and that upon a prosecution for an offence of using premises as a sex establishment without a licence, neither the justices nor the Crown Court had jurisdiction to consider the validity of a refusal of a licence.  The Court took the view that the issue before it was one that could be determined “by a proper construction of [the statutory] code”[21] and that the construction contended for by the Crown Court would frustrate the clear policy of that code.  The Court concluded that if a bona fides challenge to the validity of such a decision were raised before justices, the proceedings should be adjourned to enable an application for judicial review to be made and determined and that:

“In our view, therefore, except in the case of a decision which is invalid on its face, every decision of the licensing authority under the Act is to be presumed to have been validly made and to continue in force unless and until it has been struck down by the High Court; and neither the justices nor a Crown Court have power to investigate or decide upon its validity.”[22]   

76.  There are two observations to be made:

(1)  Quietlynn is not, in my judgment, authority for the proposition that magistrates have not the jurisdiction to determine the validity of primary or delegated legislation where the validity of that legislation is an essential ingredient of the offence with which a defendant has been charged; and, as we shall see[23], some doubt has been cast upon its force for the proposition that the validity of an administrative decision may not be inquired into by magistrates where that decision is an essential element in the proof of the crime alleged; and

(2)  The decision to refuse a licence was said in Quietlynn to have been ‘a necessary ingredient of the offence’[24].  That, it would seem, was because para. 28 of Schedule 3 provided that a party who was already using premises as a sex establishment before the Schedule was applied to the area in which the premises operated, could lawfully continue to use the premises as a sex establishment ‘until the determination of the application,’ thereby importing the implication that there be a lawful determination of the application, absent which the operator of the establishment could lawfully continue to exercise what was a pre-existing private law right.  That is to be distinguished from the present case where there is no pre-existing unrestricted right to broadcast and where the validity of a negative licensing decision is not, I suggest, an essential ingredient of the offence.

77.  Within months of the decision in Quietlynn, the Divisional Court revisited the issue, this time in relation to challenges to the validity of byelaws.  In R v Reading Crown Court ex parte Hutchinson[25], it was held that the magistracy had authority, indeed was bound, to inquire into the validity of byelaws if their validity was raised by way of defence to a charge of contravening the byelaws, and that the procedure for judicial review had not removed the right of a defendant to raise the question of the validity of a byelaw under which he was being prosecuted.  The byelaw in question was said by the defendants to be in breach of a statutory proviso that no byelaws were to be promulgated under the relevant statutory provision, prohibiting entry over a protected area, if they prejudiced any right of common.  Because the byelaws in question were not invalid on their face, the Crown Court, seeking to follow Quietlynn, adjourned the prosecutions so that the validity of the byelaws might be determined on an application for judicial review.  Lloyd LJ (with whom Mann J, a member of the Quietlynn court, agreed) said that he found Quietlynn ‘a difficult case’,[26] though no doubt fully justified on its facts.  He held, referring to a long line of cases in which magistrates had determined the validity of byelaws, that:

“If the validity of a decision of a local authority is an essential element in the proof of the crime alleged, then I can see no reason why it should not be challenged in the magistrates’ court or the Crown Court as the case may be.”[27] (Emphasis added).

78.  In support of his approach, Lloyd LJ referred to the decision of the House of Lords in Wandsworth London Borough Council v Winder[28] that, as he summarised their Lordships finding,

“… it was a paramount principle that the private citizen’s recourse to the courts for the determination of his rights was not to be excluded except by clear words.  There is nothing in the language of R.S.C, Ord. 53, which could be taken to have abolished a citizen’s right to challenge the decision of a local authority in the course of defending an action for possession, nor did section 31 of the Supreme Court Act 1981 which referred only to an "application" for judicial review have the effect of limiting a defendant’s rights sub silentio.”[29] 

This principle held good, he said, for criminal proceedings as it did for civil.[30]

79.  The defendant in R v Wicks[31] had been served by a local planning authority with an enforcement notice to rectify building works which he had carried out.  He failed to comply with the notice and was prosecuted for that failure.  The notice was properly served and was valid on its face but he sought in the criminal proceedings to challenge the service of the notice on the basis that the local authority had not genuinely considered whether, as the statute required, it was expedient to serve it.  The judge at trial refused to permit him to challenge the propriety of the decision to serve the notice.  

80.  Lord Nicholls identified two avenues of potential challenge to the lawfulness of an order or byelaw or statutory notice.  The first is a contention that the impugned order was ultra vires as having been made in terms not authorized by the statute; and the second that the impugned order was not validly made because the decision-making process was vitiated on public law grounds[32].

81.  Lord Hoffmann identified the correct approach as one of statutory construction.  Whether a defendant in criminal proceedings was entitled to challenge the vires of an act done under statutory authority where “it’s validity forms part of the prosecution’s case or its invalidity would constitute a defence,” (emphasis added) depended “entirely upon the construction of the statute under which the prosecution was brought.”  He continued:

“The statute may require the prosecution to prove that the act in question is not open to challenge on any ground available in public law, or it may be a defence to show that it is.  In such a case, the justices will have to rule upon the validity of the act.  On the other hand, the statute may upon its true construction merely require an act which appears formally valid and has not been quashed by judicial review.  In such a case, nothing but the formal validity of the act will be relevant to an issue before the justices.  It is in my view impossible to construct a general theory of the ultra vires defence which applies to every statutory power, whatever the terms and policy of the statute.”[33]

82.  So, in that case the question was the meaning of “enforcement notice” in the relevant statutory provision:

“Does it mean a notice which is not liable to be quashed on any of the standard grounds in public law?  Or does it mean a notice issued by the planning authority which complies with the formal requirements of the Act and has not actually been quashed on appeal or judicial review?  The words “enforcement notice” are in my view capable of either meaning.  The correct one must be ascertained from the scheme of the Act and the public law background against which it was passed.”[34]

83.  He held that on a true construction of the Act in question, ‘enforcement notice’ meant a notice issued by the planning authority which on its face complied with the requirements of the Act and had not been quashed upon the appeal procedure prescribed by the Act or by judicial review.[35]

84.  Finally, for present purposes, there is Boddington v British Transport Police.[36] Mr Boddington smoked a cigarette in a railway carriage that carried a conspicuous notice which prohibited smoking.  The Transport Act 1962 empowered the Railways Board to make byelaws with respect to smoking in railway carriages and the byelaw in question prohibited smoking in a carriage where such smoking was expressly prohibited by a notice exhibited in a conspicuous position.  The suggestion was that the administrative decision by which the Board posted such notices was ultra vires its powers to bring the byelaw into operation.  At issue was the extent to which ‘a defendant to a criminal charge laid under subordinate legislation can argue by way of defence that the subordinate legislation, or an administrative act bringing that legislation into operation … was itself ultra vires and unlawful.’[37]  

85.  Lord Irvine LC pointed out[38] that:

“The question of the extent to which public law defences may be deployed in criminal proceedings requires consideration of fundamental principle concerning the promotion of the rule of law and fairness to defendants to criminal charges in having a reasonable opportunity to defend themselves.  However, sometimes the public interest in orderly administration means the scope for challenging unlawful conduct by public bodies may have to be circumscribed.

Where there is a tension between these competing interests and principles, the balance between them is ordinarily to be struck by Parliament.  Thus whether a public law defence may be mounted to a criminal charge requires scrutiny of the particular statutory context in which the criminal offence is defined and of any other relevant statutory provisions.”

And later[39]:

“The particular statutory schemes in question in … Wicks and in the Quietlynn case… did justify a construction which limited the rights of the defendant to call the legality of an administrative act into question.  But in my judgment it was an important feature of both cases that they were concerned with administrative acts specifically directed at the defendants, where there had been clear and ample opportunity provided by the scheme of the relevant legislation for those defendants to challenge the legality of those acts, before being charged with an offence.

By contrast, where subordinate legislation (e.g. statutory instruments or byelaws) is promulgated which is of a general character in the sense that it is directed to the world at large, the first time an individual may be affected by that legislation is when he is charged with an offence under it: so also where a general provision is brought into effect by an administrative act, as in this case. … In my judgment in such a case the strong presumption must be that Parliament did not intend to deprive the smoker of an opportunity to defend himself in criminal proceedings by asserting the alleged unlawfulness of the decision to post no smoking notices throughout the train.  I can see nothing in [the Act] or the byelaws which could displace that presumption.  It is clear from… Winder and … Wicks… that the development of a statutorily based procedure for judicial review proceedings does not of itself displace the presumption.

…

… In my judgment only the clear language of a statute could take away the right of a defendant in criminal proceedings to challenge the lawfulness of a byelaw or administrative decision where his prosecution is premised on its validity.”(Emphasis added).

86.  The effect of these authorities has been summarized by Lewison J in Bunney v Burns Anderson Plc.[40]:

“(i)  The original procedural reasons which led to the formulation of the principle in O'Reilly v Mackman[41] have lost much of their force since the introduction of the [Civil Procedure Rules];

(ii)  They never applied to defendants who wished to challenge public law decisions upon which a private cause of action against them was asserted in proceedings which they wished to defend;

(iii)  There is no longer any difference in principle between a challenge based on substantive validity and one based on procedural invalidity;

(iv)  Where a defendant to a claim wishes to challenge a public law decision as part of his defence, the court does not have any discretion to refuse to allow him to do so, unless either the raising of the defence is an abuse of process or it has no reasonable prospect of success;

(v)  It will have no reasonable prospect of success if, as a matter of construction of the statute under which the impugned act was done, the legislation forbids any challenge (or the particular type of challenge that the defendant wishes to make) to be made otherwise than by judicial review;

(vi)  In construing statutory schemes which enable decisions to be made under them there is a strong presumption, based on the importance of the rule of law, against concluding that the only permissible means of challenge is by judicial review.”

This case

87.  There was in this case no byelaw or regulation the breach of which was an ingredient of the offence with which the respondents were charged.  So no question of the vires of a byelaw or regulation arose for determination.

88.  There was in this case no notice or order issued the validity of which order or notice might therefore be relevant as a defence to a charge of breaching the order or notice.

89.  There was in this case no act done under statutory authority the validity of which act formed part of the prosecution case.  Neither the decision to refuse a license nor any act done or omitted to be done in consequence of that decision constituted a necessary ingredient of the offence charged.

90.  The only relevant issues in the prosecutions that were launched were these:

(1)  Did the respondents commit the primary acts with which they were charged, namely, establish means of telecommunications or use a transmitting system or conspire to do so, as the case may be;

(2)  If that were proved, had a licence been granted by the Chief Executive in Council or by the Telecommunications Authority permitting them to establish or to use such a system; and

(3)  If no such licence had been granted, whether the offence-creating provision was an impermissible infringement of an established right.

91.  The refusal to issue a license did not, as it did in Quietlynn, have the purported effect of taking away a right in law that the applicant had previously enjoyed.  That is because the provisions of the Basic Law and of the Bill of Rights Ordinance which guarantee freedom to impart and to receive ideas cannot, if given a purposive interpretation, and for reasons I have earlier provided, confer an unfettered right on individuals to avail themselves of broadcasting frequencies.

92.  Evidence was adduced in this particular case that users of radio frequency spectrum in Hong Kong include the police, fire and ambulance services and the Civil Aviation Department.  Unrestricted access to that spectrum would run a cogent risk of interfering with those vital services as well as of interfering with the rights of listeners to existing regional and international radio stations.  It is no doubt in recognition of the scarce resource that is constituted by the radio spectrum, of the potential for chaos presented by unrestricted access to that spectrum, and of the infringement of the right of others to impart and receive information that would result from unregulated access, that the respondents accept that there can be no right to the airwaves, and that the requirement of s. 8 that broadcasting shall only take place where licensed is not an infringement or an unjustifiable infringement of any of the guaranteed rights with which this case is concerned.

93.  That being the case, it is impossible, in my judgment, reasonably to construe the offence-creating sections in this case (s. 20 read with s. 8) as permitting the establishment of a telecommunication system or its use if such licensing system as is in place is in some material respect not prescribed by law; or as permitting broadcasting if the decision-making process by which a particular licence has been refused is, or might be shown to have been, unlawful on one or more public law grounds.

94.  A proper construction of ss. 8 and 20 of the Ordinance is one that recognizes that it must have been the legislature's intention that the legality of a licensing decision or of an aspect of the licensing scheme at any given time was not a necessary ingredient of the offence.  It would be as unrealistic and non-contextual to suggest that, as it would to contend that in enacting a provision that prohibited the driving of a motor vehicle without a licence, the legislature intended that it would be a defence to a charge of driving without a licence to show that, upon a driving test, the driving examiner ought not to have refused the examinee his full licence or to show that the criteria for granting driving licences were insufficiently precise to meet the test of prescription by law. 

95.  It must follow that it was the legislature’s intention that if an applicant for a broadcasting licence wishes to attack the statutory licensing system, or a licensing decision, he must do so once he has made an application and has received a response which might be impugned at law.  In a prosecution for an offence under ss. 8 and 20 of the Ordinance, it is not open to a defendant to raise by way of defence the legality of a licensing decision or of the licensing scheme.  Any other construction would, in my opinion, be contrary to the clear policy of the legislative scheme as a whole.

96.  As Cheung J emphasizes in the judgment which follows, none of this is to suggest that it is not open to a defendant to challenge, as a defence to a charge, the constitutionality of the offence-creating provision directed against him.  To the contrary, it is always open to a defendant to do so as has been illustrated in a number of instances in this jurisdiction.[42]  It is merely to say that in this case the constitutionality of the offence did not depend on the validity of the licensing regime and it is in assuming that it did that the magistrate went wrong.

97.  There has been some suggestion that since only a corporation may apply for and be granted a licence to establish and maintain a broadcasting service[43], it is of scant use to tell prosecuted defendants who are not corporations – as is the case with most respondents to this appeal – to seek their remedy by an application for judicial review.  The answer to that argument is that once it is accepted that the legality of a licensing decision or of the scheme as whole is not an ingredient of the offence under ss. 8 and 20, the point does not arise.

98.  It follows that the question of legal certainty which is the theme of the case stated is a question that did not arise in the case which the magistrate had to try.  If, however, one allows oneself to be drawn into the questions posed at all, the only question that requires answering to dispose of this appeal is the last.  That question asks whether, given the finding that the licensing regime was unconstitutional it followed that any charges “founded upon a failure to comply with that regime are also unconstitutional?”.  The answer I would give to that question is No; because even supposing that the premise was correct (that the regime is unconstitutional), the offence-creating provision did not engage the legality of the licensing regime.

99.  Accordingly, I would set aside the order of the magistrate whereby he dismissed the charges and remit the case to him to determine them in accordance with law.   

The remaining questions

100.  We were invited by the parties, including the appellants, to address the remaining questions posed by the case stated even were we to hold that the offence-creating provision was self-standing and lawful.  

101.  In deference to the arguments presented and in order to deal with some of the conclusions of a general nature reached by the magistrate, there is a temptation to accept the invitation.  However, the suggested course presents a number of problems.

102.  It is not clear to me whether we were being asked to proceed on an assumption that the constitutionality of the scheme as a whole was an essential ingredient of the offence.  If so, it is, for a number of reasons, an unattractive course to adopt.  It makes an assumption which, in my opinion, is palpably untenable.  It would, moreover, require us to engage in an abstract exercise that would involve a deep and lengthy analysis which would, given the primary conclusion, result in a non-binding conclusion.  Further, the question of constitutionality has been limited in argument to an examination of the requirement that restrictions on fundamental freedoms be prescribed by law.  There has been no analysis of other questions that would need to be examined were that condition satisfied (as to which I here express no opinion) including the question of proportionality.

103.  If, on the other hand, we were invited to proceed with the remaining questions upon an examination of the instant case – which is to say, whether the particular grounds upon which the licence was refused in this case were prescribed by law – that would be an appropriate exercise if this were a judicial review of the decision made.  But, as I have been at some pains to emphasize, this is not such a review nor an appeal from such a review; and, in any event, the identification of those grounds in this case is itself, in my judgment, a question susceptible to argument.

104.  It seems to me in the circumstances that this is not a satisfactory basis upon which to embark upon an exercise in addressing the remaining questions.

Two discrete issues

105.  There are, however, two discrete issues which we can, in my opinion, usefully address, lest the conclusions of the magistrate on the points were to gain currency.  They are the subject matter of the second and third questions.

106.  The second question[44] asks whether the magistrate erred in finding that the fact that the decision maker was not independent of the Government constituted an arbitrary restriction on the freedom of expression and was a restriction not prescribed by law.  The answer, in my judgment, is Yes, the magistrate erred.

107.  The requirement that a restriction upon a right be prescribed by law is a requirement not merely that there be some basis in domestic law for the restriction but that the relevant law be sufficiently specific, according to the degree of specificity that the context reasonably permits, to enable the citizen, if appropriate with the benefit of advice, to foresee with reasonable certainty the consequences of a given action, to know what the rules are and how he might lawfully conduct himself in the light of those rules and, at least as importantly, in my judgment, so that the person to whom power is entrusted knows the legitimate limits of that power.  See Leung Kwok Hung v HKSAR[45].

108.  It follows, as an aspect of the principle of contextual and reasonable certainty, that where the law confers a discretion upon a public official to exercise a power, that law must indicate the scope of that discretion with clarity: Malone v United Kingdom.[46]  The degree of precision required depends upon the subject matter: Sunday Times v United Kingdom[47].  In this regard and in the context of a broadcast licensing application, the European Court of Human Rights has emphasized in Glas Nadezhda Eood v Bulgaria[48] that:

“In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power.  Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise … .”

109.  Once the scope and intent of the requirement that a restriction be prescribed by law is understood, it should readily be appreciated why the issue of independence of the decision maker was not to the point.

110.  There are no doubt those who take the view that the preservation of freedom of expression is better enhanced by entrustment of the broadcasting sector to an independent regulatory authority.  But whether, as a matter of policy, it is desirable for the decision maker in this context to be an independent one is not for us to consider, nor was it a question for the magistrate.  That is because independence has nothing to do with the requirement of prescription by law.  It may be that, in a particular case, the fact that a decision is not made by an independent body will assist in showing that there has been unfairness or bias such as will found a basis for public law relief, but that cannot mean that a law, no matter how specific in its delineation of the rules and the limits of power and the protection of rights, becomes one that is not prescribed by law simply because the decision making body is not independent of the Government.  Statutes in this jurisdiction are replete with instances where administrative decisions that touch upon the individual and upon fundamental freedoms are entrusted to agencies of Government.  Often that is the natural and sensible home for such decision-making.  The entrustment of a broadcasting licensing system to a government organ is not a matter that of itself sits ill with the preservation of freedom of expression.  Whether the power of the entrusted body is sufficiently circumscribed to protect that freedom or whether there is abuse of that power, as there was in Observer Publications, is a different issue.  What is important is that the legality of decisions of governmental bodies is subject to the review of independent and impartial tribunals.  No one suggests in this case, nor could it be suggested, that broadcast licensing decisions made under the Telecommunications Ordinance are not subject to such review.

111.  The third question[49] is whether the magistrate erred in holding that the absence of a statutory right of appeal from the decision of the Chief Executive in Council in refusing an application for a broadcasting licence is contrary to the principle of legal certainty.  I fail to see the connection between the two; and the answer to this question is Yes, the magistrate erred.  I should add that although the question posed does not itself touch upon the failure of the Telecommunications Ordinance to state in terms that reasons for a decision must be provided, a matter that concerned the magistrate, the common law requirement of fairness quite obviously demands in the present statutory context that the decision maker must give reasons for any refusal of a licence application.

The relevant question

112.  I return therefore to the fifth (and final) question[50], the answer to which, in my judgment, suffices to resolve the appeal.

113.  The fifth, and final, question is whether the magistrate erred in ruling that because he found the licensing regime to be unconstitutional, that charges “founded upon a failure to comply with that regime” were also unconstitutional.

114.  For the reasons I have provided, the answer to this question is that the magistrate erred in treating the constitutionality of the licensing regime as an essential element of the offences of which the respondents were charged and, in consequence of this error, he further erred in holding that the relevant offence-creating provisions were unconstitutional.

115.  It follows that it was unnecessary for the magistrate to ask himself, or to pose to us, the remaining questions and, for the reasons I have offered, I do not think it appropriate to deal with them, save only to the extent that I have touched upon two issues that merit discrete attention.[51]

Conclusion

116.  Accordingly, I would allow the appeal, set aside the order by which the magistrate dismissed the charges, and remit the case to the magistrate’s court for resumption of the trial in accordance with law.

117.  I would make an order nisi that the costs of this appeal be paid by the respondents to the appellant, to be taxed if not agreed. 

Hon A Cheung:

118.  I agree with the judgment of Stock JA and would like to add a few words of my own.

119.  The constitutional rights guaranteed under art 27 of the Basic Law and art 16 of the Hong Kong Bill of Rights are not absolute.  Art 39(2) allows restrictions that are ‘prescribed by law’.  Further, art 16(3) provides that exercise of the rights provided for in art 16(2) may be subject to restrictions that are ‘provided by law’ and are ‘necessary’ for the respect of the right of others, or for the protection of national security or of public order (ordre public), or of public health or morals.

120.  When a statute sets up a licensing regime for broadcasting the regime constitutes a restriction on one’s rights under art 27 of the Basic Law and art 16(2) of the Hong Kong Bill of Rights.  The restriction, to be constitutionally valid, requires justification in terms of art 39(2) of the Basic Law and art 16(3) of the Hong Kong Bill of Rights.

121.  Moreover, the refusal of a licence application according to the particular circumstances of an individual case by itself also constitutes a restriction on the exercise of the rights under discussion.  That restriction also requires justification in terms of art 39(2) of the Basic Law and art 16(3) of the Hong Kong Bill of Rights, apart from the fact it may be challenged on other standard public law grounds.

122.  When the statute goes on to create a criminal offence against the exercise of the rights in the absence of a licence granted under the licensing regime set up in the statute, the offence so created by itself also constitutes a restriction on those rights.  And that restriction likewise requires justification in terms of art 39(2) of the Basic Law and art 16(3) of the Hong Kong Bill of Rights.

123.  Therefore, in the prosecution of the offence, the accused may always challenge the constitutionality of the offence itself as being an unjustifiable restriction on his rights under art 27 of the Basic Law and art 16(2) of the Hong Kong Bill of Rights.  But it does not follow that he can put in issue the constitutionality of the restriction represented by the licensing regime or that by the refusal of a licence (if one has been applied).  Whether he may do so depends entirely on whether, on the proper construction of the offence, its essential elements include the constitutional validity of the licensing regime and/or the refusal of a licence in question.

124.  In other words, if, on its proper construction, the offence prohibits broadcasting etc in the absence of a constitutionality valid licence granted under a constitutionally valid licensing regime, the accused will be quite entitled to put the constitutionality of the licensing regime or the refusal of a licence in the particular case in issue.  But not otherwise.

125.  For the detailed reasons given by Stock JA in his judgment, I have no doubt that in the present case, the constitutional validity of the licensing regime does not constitute an essential ingredient of the offence under s 20 as read with s 8(1) of the Telecommunications Ordinance.  In other words, whether the licensing regime is a constitutionally justifiable restriction on the rights under art 27 of the Basic Law and art 16(2) of the Hong Kong Bill of Rights or whether it amounts to an unjustified restriction is immaterial to the case that the prosecution has to prove.  So for that reason, the magistrate should not have gone into it at all.

126.  Likewise, I am satisfied, for the reasons explained by Stock JA that the constitutionality of the refusal of a licence in a particular case is not something that the prosecution needs to establish.  For that reason, it is also not a matter that a magistrate need or should go into.

127.  In other words, it is quite plain, as a matter of legislative intent, that regardless of the constitutional validity of the licensing regime and/or the refusal of a licence in question, the legislature intends to prohibit broadcasting etc in the absence of a licence from the Chief Executive in Council.

128.  However, that does not mean that no issue of constitutionality arises or can arise.  As said, the offence, by itself, constitutes a restriction, on the pain of criminal sanction, on the rights guaranteed under art 27 of the Basic Law and art 16(2) of the Hong Kong Bill of Rights.  This restriction, like any other purported restriction on a non-absolute constitutional right, requires justification in order to be lawful and valid.  The criteria for justification, in the present case, are found in art 39(2) of the Basic Law and art 16(3) of the Hong Kong Bill of Rights.

129.  In other words, the constitutionality of s 20 of the Ordinance does require consideration.  But the consideration required is quite different from the consideration that would have been required to determine whether the licensing regime and/or refusal of a licence in a given case are justifiable constitutionally if their constitutional validity had been an essential element of the offence.

130.  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.

The latter is generally known as the proportionality test (or the justification test in the context of inequality in treatment).

131.  Remembering firmly that one is now looking at the offence itself as a restriction on rights, the ‘prescribed by law’ requirement is without doubt satisfied.

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.

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.

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 were 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.  (Indeed these considerations also constitute important reasons for construing, in the first place, s 20 as being independent of the constitutional validity of the underlying licensing regime or refusal of a licence.)

135.  For those reasons, s 20 as a restriction itself of the rights guaranteed under art 27 of the Basic Law and art 16(2) of the Bill of Rights is constitutionally justified.

136.  In my view, that is the only issue of constitutionality about s 20 that the magistrate should have looked into.  And had he done so, the answer would have been obvious to him, as it is to me.

137.  For these reasons, the appeal must be allowed.

Hon Ma CJHC:

138.  Accordingly, the appeal is allowed, the order of the magistrate by which he dismissed the charges is set aside and the case is remitted to the magistrate for resumption of the trial.  There will be a costs order nisi that the costs of this appeal be paid by the respondents to the appellant, to be taxed if not agreed.

[1] para 10 Case Stated.

[2] para 74 Case Stated.

[3] (1990) 12 EHRR 321, 338-339 para [60].

[4] sections 13A to 13M inclusive.

[5] under “Telecommunication Ordinance” p 4.

[6] Ruling, para 27.

[7] Ruling, para 27.

[8] Ruling, para 29.

[9] Ruling, para 33.

[10] Ruling, para 36.

[11] (1990) 12 EHRR 485, 499 [47].

[12] 1995 (9) BCLR 1262.

[13] 395 U.S. 367 (1969).

[14] at 376.

[15] ‘Congress shall make no law … abridging the freedom of speech …’

[16] at 387 – 390.

[17] (2001) 10 BHRC 252 at 266 [49].

[18] [2004] 1 AC 185.

[19] [1988] Q. B. 114.

[20] see counsel’s argument at 123 E-F; and judgment at 128B.

[21] at 129A.

[22] at 131 E-F.

[23] Hutchinson, below.

[24] at 128B

[25] [1988] Q.B. 384.

[26] at 394C.

[27] at 395B-C.

[28] [1985] A.C. 461.

[29] at 392H.

[30] at 395B.

[31] [1998] A.C. 92.

[32] at 104.

[33] at 117C-D.

[34] at 119A-B.

[35] at 122F-G.

[36] [1999] 2 AC 143.

[37] at 150H-151A.

[38] at 152F-H.

[39] at 161F- 162H.

[40] [2007] EWCH 1240 at [47], Ch D.

[41] [1983] 2 AC 237; in which it was held that it would normally be an abuse of process to proceed by way of ordinary action, rather than by an application by judicial review, in order to attack the legality of an administrative action.

[42] see, for example, Leung v Secretary for Justice [2006] 4 HKLRD 216; and HKSAR v Ng Kung Siu (1999) 2.

[43] ss. 13B and 13F Telecommunications Ordinance.

[44] Numbered (1)(ii) in the case stated : para. 60 above. 

[45] (2005) 8 HKCFAR 229.

[46] (1984) 7 EHRR 14, 41.

[47] (1979) 2 EHRR 245 para [49].

[48] (2007) 23 BHRC 239, para [46].

[49] Numbered 1(iii) in the case stated : para. 60 above.

[50] Numbered (3) in the case stated : para. 60 above.

[51] Paragraphs 105 to 111 above