SECRETARY FOR JUSTICE v. TSANG KING SHING AND ANOTHER

[English translation – 英譯本]

HCMA 211/2020

[2021] HKCFI 2509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 211 OF 2020

(ON APPEAL FROM ESS 41118 - 41120/2014)

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JUDGMENT

1.  The present case is concerned with three summonses issued by the Secretary for Justice (“the appellant” or “SJ”):

(I)  Amended summonses ESS 41119/2014 and ESS 41118/2014

Pursuant to sections 8(1)(a) and 20 of the Telecommunications Ordinance (“TO”)[1], Tsang Kin Shing (“1^st respondent”) and Ocean Technology Limited (trading as “Citizen’s Radio”) (“2^nd respondent”) are charged that they, on 15 April 2014, in Hong Kong, at the area near the lower deck entrance of Star Ferry Pier (for Central bound ferry), Tsim Sha Tsui, Kowloon, without a licence granted by the Chief Executive in Council or an appropriate licence granted or created by the Communications Authority (“CA”) maintained a means of telecommunications.

(II)  Re-amended summons ESS 41120/2014

Pursuant to section 23 of the TO, the 1^st respondent was charged that he, on the same day, at the same place, knowing or having reason to believe that the same means of telecommunications was being maintained without a licence granted by the Chief Executive in Council or an appropriate licence granted or created by the CA, transmitted messages by such means of telecommunications.

Prosecution case

2.  The 1^st respondent was the only shareholder and one of the directors of the 2^nd respondent, and he ran the Citizens’ Radio through the 2^nd respondent. On the day in question, the Citizens’ Radio held a forum at the area near the entrance to the lower deck of Star Ferry Pier (for Central bound ferry), and the 1^st respondent was one of the speakers. The prosecution alleged that at the material time, the two respondents maintained a means of telecommunications, namely a radio transmitting system operating at the frequency of 102.8 MHz without the relevant licence, and that the 1^st respondent knowingly transmitted messages by such means of communications.

The magistrate’s findings

3.  At trial, after the close of the prosecution case, the magistrate[2] accepted the defence’s submissions for no case to answer and dismissed the above three summonses.

Appeal from the SJ

4.  The SJ was not content with the said determination of the magistrate, contending that it was erroneous in point of law. By virtue of section 105 of the Magistrates’ Ordinance[3] (“Section 105”), the SJ appealed to the Court of First Instance by way of requesting the magistrate to state a case for the opinion of a judge.

Testimonies of prosecution witnesses

5.  At trial, the prosecution called two witnesses who were both officers of the Office of the Communications Office (“OFCA”), and their testimonies may be summarised as below.[4]

The 1st prosecution witness (PW1)

6.  PW1 was an Acting Assistant Controller of the Investigation and Prosecution Sub-section, Enforcement Division, OFCA. On the day in question, he was assigned to investigate the present case at the Star Ferry Pier in Tsim Sha Tsui and be the exhibit officer of the case.

7.  At 6:30 pm on the day in question, PW1 arrived at the Star Ferry Pier in Tsim Sha Tsui. He saw that the 1^st respondent and two other men were setting up a stage for a forum at the scene. There were two loudspeakers, some display boards and flags at the scene, and at the back of the stage, there was a banner written with the expressions of “Atmospheric Radio Wave occupying Star Ferry / Safeguard Freedom of Speech & Freedom of the Press / Civic Nomination Indispensable” (original Chinese text: 大氣電波佔領天星∕捍衛言論及新聞自由∕公民提名不可或缺). PW1 also saw an audio mixer and a black object suspected to be an FM transmitter by the side of the stage. Above the stage, on the roof of the Star Ferry Pier, there were a set of ground plane antenna and a coaxial cable with one end of which connected to the suspected FM transmitter and the other end extended to the cover of the stage.

8.  At around 6:53 pm, PW1 stood in front of the stage to observe. At the same time, he tuned the radio app of his own mobile phone to 102.8 MHz, and, with the use of his earphones, discovered that somebody was broadcasting at the said frequency, and that the content of the broadcasting and what he heard at the scene were one and the same.

9.  At around 8:26 pm, the forum concluded and at the same time the broadcasting at 102.8 MHz also ended. A few minutes afterwards, the 1^st respondent packed the audio mixer and the suspected FM transmitter at the scene.

10.  After that, outside the Cultural Centre, PW1 received from other OFCA officers some exhibits connected with the present case, including, inter alia, a memory card passed to him from PW2’s hand.

The 2nd prosecution witness (PW2)

11.  PW2 was responsible for taking record on video at the scene.

The legal issues involved and the effects of the magistrate’s decisions on the trial hearing

12.  At trial, under cross-examination by the defence[5], it was put to PW1 that he had knowingly received suspected unlicenced broadcasting at the frequency of 102.8 MHz with the radio app of his personal mobile phone, and so he himself also contravened sections 8 and 23 of the TO. PW1 said that he had the warrant card issued by the CA, and since he was enforcing the TO for working purpose, he was not required to have the relevant licence.

13.  At that time, the prosecution and the defence both agreed that PW1 was wrong in thinking he was not required to have the relevant licence during the enforcement of the TO at work because he had the warrant card. However, the prosecution pointed out, by virtue of section 5(1)(a)(ii) of the Telecommunications (Telecommunications Apparatus) (Exemption from Licensing) Order[6], when PW1 was receiving suspected unlicensed broadcasting at MHz 102.8 with his mobile phone, he was exempted from holding a licence as required by section 8 of the TO.

14.  The magistrate had reservations about whether the prosecution’s understanding of the said section 5(1) was correct, and as a matter of fairness and protecting PW1’s right against self-incrimination, he reminded PW1 that he was entitled to refuse to answer questions which might incriminate him.[7] After that, the hearing was adjourned.

15.  At the hearing on 28 July, the prosecution altered their previous stance, and said that pursuant to “Application to Crown” under section 3 of the TO, save as otherwise expressly provided, that Ordinance did not bind the Crown. In other words, when OFCA officers (including PW1) acted in the capacity of the Crown, they were not bound by the requirements of licences under the TO and in turn became entitled to immunity from criminal liability, therefore the court did not have to give PW1 the caution on the right against self-incrimination. The defence did not agree with the stance of the prosecution and referred to the Communications Authority Ordinance[8] (“CAO”), in particular sections 3(3)[9] and 19[10] to support their argument. The magistrate adjourned the hearing.

16.  On 1 August, after considering the submissions from both sides, the magistrate ruled that under the CAO, the OFCA officers (including PW1) were not entitled to immunity from criminal liability.

17.  Before PW1 continued his testimony, the magistrate continued the caution given to him and again reminded him of his entitlement to the legal right against self-incrimination. The magistrate also told PW1 that he could have time to seek legal advice if so required. Since PW1 indicated that he needed to seek legal advice, the court adjourned the hearing.

18.  The hearing resumed on 19 October. PW1 told the court that he was not willing to continue to give evidence, and hence the defence did not further cross-examine him.

19.  After that, PW2 gave evidence. At the initial stage of the examination-in-chief, the defence suggested that PW2 might possibly have been in a joint enterprise or conspiracy with PW1, or incited PW1 to commit crime, and hence invited the court to give PW2 the same caution about the right against self-incrimination. In response, the prosecution said that each member of the OFCA was assigned with specific investigation work in Tsim Sha Tsui on the day in question. The officers had no connection with each other and did not constitute any joint enterprise or conspiracy / incitement to commit any crime, and therefore no such caution was necessary. The hearing was adjourned again.

20.  After seeking legal advice, PW2 also indicated that he did not wish to continue his testimony. The prosecution informed the court that other prosecution witnesses also did not wish to give evidence in court, which brought an end to the prosecution case.

21.  The defence made a submission of no case to the court, alleging that the prosecution simply had no prima facie evidence to support the charges after PW1’s refusal to be cross-examined.

22.  After consideration, the magistrate found that PW1’s evidence was not regarded as complete because he had not undergone cross-examination. Coupled with the other prosecution witnesses’ refusal to give evidence, the prosecution failed to complete its case. Under such circumstances, the magistrate found that even if the prosecution case was taken to its highest, a properly directed jury would still be unable to reasonably return a verdict of guilty of the said three summonses. He therefore found that no prima facie evidence was established in support of the three summonses faced by the two respondents. The two respondents had no case to answer and were found not guilty.

The magistrate’s reasons for findings

23.  The magistrate explained that he ruled the OFCA officers did not benefit from section 3 of the TO on account of the following four reasons:

(I)  Construction of section 3 of the TO:

(1)  Section 3 provides as follows:

“Save as otherwise expressly provided, this Ordinance does not bind the Crown[11] or apply to any means of telecommunications established or maintained by the Crown or to any apparatus for telecommunications possessed or used by the Crown for the purpose of or in connection with any such means of telecommunications.”

(2)  The meaning of “the Crown” was the key point.

(3)  Pursuant to paras 1 and 2 in Schedule 8 to the Interpretation and General Clauses Ordinance[12] (“IGCO”), the term “the Crown” shall be construed as “a reference to the Central People’s Government or other competent authorities of the People’s Republic of China”, and “a reference to the Government of the Hong Kong Special Administrative Region”.

(4)  It was the magistrate’s view that, whether in terms of the general literal meaning or the interpretation under Schedule 8 to the IGCO, the concept of “the Crown” refers to “sovereignty”, “the sovereign”, “Central People’s Government”, “the Government of the Hong Kong Special Administrative Region” and the Government as a whole, which could hardly be applied on public officers, civil servants or people acting in the capacity of the Crown.

(5)  The magistrate did not agree with the prosecution that the term “the Crown” could cover or be construed as persons “acting in the capacity of the Crown”. He has taken into account the absence of the phrase “acting in the capacity of the Crown” in section 3 of the TO.

(6)  It was also the magistrate’s view that the personal mobile phone used by PW1 could not said to be “means of telecommunications established or maintained by the Crown” or “apparatus possessed or used in connection with such means”.

(II)  Distinction between “members of the Crown” and “not members of the Crown” in the CA

(1)  The magistrate indicated that according to the prosecution’s submissions, in construing the TO and the CAO[13], it was necessary to differentiate who were “members of the Crown” and who were “not members of the Crown” inside the CA[14]. “Not members of the Crown” in the CA were not “public officers” prescribed in the legislation, and they thus could not have any immunity from criminal liability by virtue of section 3 of the TO. On the contrary, since the “members of the Crown” in the CA were “public officers” prescribed in the legislation, by relying on the power conferred by the provision, the “members of the Crown” in the CA could have immunity from criminal liability.

(2)  The magistrate did not agree with the prosecution’s submissions in this regard. He said that according to the logic of the prosecution, the CA would be artificially divided into “not members of the Crown” and “members of the Crown”, and the latter would be entitled to immunity from criminal liability conferred by section 3 of the TO whilst the former would not. Such situation would be odd and absurd.

(3)  The magistrate also indicated that according to the logic of the prosecution, all OFCA staff members were entitled to immunity from criminal liability because they were “civil servants” or “public officers”. However, the CA, although being above the OFCA in the hierarchy, was not necessarily entitled to such general immunity from criminal liability. He found that the logic of the prosecution again created an odd and absurd situation, namely, the OFCA staff were always entitled to the immunity whilst the entitlement of the CA members had to depend on the situation.

(III)  The prosecution’s interpretation implied that the TO overrode the CAO

(1)  The magistrate pointed out that section 3 of the TO clearly stated “save as otherwise expressly provided” right at the outset, from which it can be seen that even if “public officers” or “persons acting in the capacity of the Crown” were really entitled to immunity from criminal liability as the prosecution said, such immunity was not without restriction.

(2)  The magistrate also pointed out that section 3(3) of the CAO specifically stated “the Authority[15] is not a servant or an agent of the Government nor does it enjoy any status, immunity or privilege of the Government”. Furthermore, section 19 of the CAO only mentioned that the CA and the officers who implemented its policy directions were entitled to immunity from civil liability with no mention of the entitlement to immunity from criminal liability.

(3)  The magistrate was of the view that sections 3(3) and 19 of the CAO were precisely what was the “expressly provided” stated in section 3 of the TO[16].

(4)  The CA and the officers who implemented its policy directions were at the most entitled to only immunity from civil liability. Yet, the prosecution still submitted that the “members of the Crown” of the CA were entitled to immunity from criminal liability (with the magistrate tentatively leaving aside the OFCA staff). The magistrate found that the prosecution failed to make out its point and its interpretation also implied that the TO overrode the CAO.

(IV)  Functions and powers of OFCA officers

(1)  The magistrate pointed out that one of the submissions of the prosecution was that since the OFCA officers were frontline law enforcement officers while those of the CA were not, the OFCA officers had to have immunity from criminal liability. After considering section 35 of the TO[17] and having regard to the requirement that OFAC officers had to obtain authorization in writing from the CA before exercising its law enforcement power, including making arrest, seizing exhibits, entering and search premises, etc, the magistrate came to the view that the CA was the law enforcement body.

(2)  It was also the magistrate’s view that the prosecution had mixed up the power to enforce the law with the power, method or mode of collecting evidence, which was wrong. According to the legislation, upon satisfying the pre-requisite conditions of section 35 of the TO, such as having obtained authorization in writing from the CA or applied to the court for search warrant and so on, the CA officers had the power to enforce the law. However, law enforcement power was different from the power and mode to collect evidence. The magistrate gave the example that whilst a police officer, relying on the power conferred to him by the Police Force Ordinance, might make arrest, enter premises for searching and seizing exhibits, does it mean that the police could breach the law? Are the police entitled to immunity from criminal liability after breaching the law? The answer must be in the negative. An undercover police constable who infiltrated into a triad society undoubtedly aimed at collecting evidence. However, if, in the course of doing so, the constable committed any criminal offence, such as taking part in fights with others, or inciting others to act in the capacity of a member of triad society, then he would not be entitled to any general and unrestricted immunity from criminal liability.

(3)  Therefore, the magistrate said that it was wrong to say that PW1 would not have breached the law because he had his warrant card when he was carrying out the investigation.

The points of law on which the opinion of the Court of First Instance was sought

24.  The points of law which have arisen from the above determinations made by the magistrate and in respect of which the opinion of the Court of First Instance are sought are as follows:

(I)  Whether, on the correct construction of section 3 of the TO, the magistrate erred in law in holding that the section was not applicable to the OFCA staff.

(II)  Whether the magistrate erred in law in cautioning the prosecution witnesses about their right against self-incrimination.

Can SJ appeal by way of case stated

25.  Before dealing with the above points of law, Mr Kwok and Mr Tang acting for the respondents raised a procedural issue. They submitted that since the SJ had not identified for what she was aggrieved, the application did not satisfy the condition for an appeal by way of case stated under Section 105.

26.  Mr Kwok submitted that the magistrate’s determinations in fact did not have any really adverse influence on the appellant, and that PW1 and PW2 refused to give evidence only because of the unsatisfactory legal advice given by the Civil Division of the Department of Justice. The appellant just should not put the blame on the magistrate’s determination. Besides, the magistrate could not compel the witnesses to give evidence because the appellant had neglected issuing witness summonses to the witnesses. Under such circumstances, the appellant did not meet the requirements of being “aggrieved” under Section 105 and the appeal should be dismissed.

27.  Section 105 provides as follows:

“Within 14 clear days after the hearing and determination by a magistrate of any complaint, information, charge or other proceeding which he has power to determine in a summary way, either party thereto or any person aggrieved thereby who desires to question by way of appeal any conviction, order, determination or other proceeding as aforesaid on the ground that it is erroneous in point of law, or that it is in excess of jurisdiction, may apply in writing to the magistrate to state and sign a case setting forth the facts and the grounds on which the conviction, order or determination was granted and the grounds on which the proceeding is questioned, for the opinion of a judge. In the case of any determination which a magistrate has power to determine in a summary way and which relates to or is connected with an offence the Secretary for Justice shall notwithstanding that he may not be deemed to be a party, have a similar right to apply for a case to be stated as that hereinbefore afforded to the parties and upon the exercise of such right by the Secretary for Justice the complainant or informant shall cease to be a party to any further proceedings.”

28.  In view of the provision, I do not accept Mr Kwok’s submissions in this regard for three reasons:

(I)  In my view, the provision means that the following persons have the right to take action by virtue of Section 105:

(1)  any party of the hearing; or

(2)  any person who is aggrieved because of the magistrate’s decision.

In the present case, since prosecution was eventually brought by the SJ and the summonses were signed by a senior public prosecutor, the SJ was obviously “a party” of the hearing, and there was no need to prove that she was aggrieved. Mr Kwok submitted that even if a person who appealed was a party of the hearing, it was still necessary to show that the person was aggrieved as a result of the magistrate’s decision. I do not agree because it does not conform with what the provision states.

(II)  Even if “feeling aggrieved” is a pre-requisite, the magistrate’s determination concerned must have impact on the prosecution at the trial. The final outcome was that it was determined that the prosecution failed to establish a prima facie case. If the magistrate’s ruling was in error, it would be hard to deny that the prosecution was aggrieved. Further, from the wording of the provision, once the prosecution felt aggrieved, it may take action under Section 105;

(III)  Section 105 confers the SJ with a right which can be seen from the following part of the provision:

“In the case of any determination which a magistrate has power to determine in a summary way and which relates to or is connected with an offence the Secretary for Justice shall notwithstanding that he may not be deemed to be a party, have a similar right … as that hereinbefore afforded to the parties.”

Mr Ned Lai, Acting Deputy Director of Public Prosecutions (“Mr Lai”)[18] acting for the appellant, stated that the prosecution did not rely on the abovementioned part in Section 105 in the present case. In my view, it is not impermissible to rely on this part of the provision. Section 105 is different from section 113 which is for appeals from the magistrates’ court in general. Appeals under Section 105 may be lodged only on the ground of there being an error in point of law or in excess of jurisdiction. Therefore, permitting the SJ to appeal under Section 105 helps in clarifying the law, and this is the main reason for which I think that the SJ may appeal under the section. Albeit, the SJ does not need to rely on the part of the provision mentioned to appeal in the present case.

29.  Mr Kwok cited AG v Davies[19] but that case did not support the argument that the SJ could not appeal on such ground due to special factual circumstances. In that case, a magistrate fined a prosecution witness because of his absence from the hearing. Therefore, that witness, and not the Attorney General, was the aggrieved person. Under such special circumstances in the case, the Attorney General could hardly assert to be a party of the hearing. It was mentioned in the ruling in that case that the right referred to in para 28(III) above was exercisable only in a private prosecution. In my view, such an understanding of the legislative intent may be too narrow. Nevertheless, since the prosecution does not rely on this part of the provision, I am not going to make any decision on this point.

30.  Based on the above reasons, in particular the first and second reasons, I find that the SJ has the right to rely on Section 105 to appeal by way of case stated in the present case.

Point of law (I)

31.  The question is: Whether, on the correct construction of section 3 of the TO, the magistrate erred in law in holding that the section was not applicable to the OFCA staff.

Appellant’s submissions

32.  Mr Lai’s submissions addressed each argument[20] set out by the magistrate, and the main points are as follows:

(I)  The magistrate has erroneously construed the term “the Crown”:

(1)  The magistrate, in construing the term “the Crown”, tended to give more weight to what was provided under section 1 in Schedule 8 to the IGCO, in which when the title to land in Hong Kong, affairs for which the Central People’s Government of the People’s Republic of China has responsibility, and the relationship between the Central Authorities and Hong Kong and so on were mentioned, the element of “sovereignty” was of course involved. However, the magistrate failed to fully consider that section 2 provided: “in contexts other than those specified in section 1, [the Crown] shall be construed as a reference to the ‘the Government of the Hong Kong Special Administrative Region’”.

(2)  It was clearly stated in section 7 in Schedule 9 to the IGCO: “Where it is expressly provided in an Ordinance that the Ordinance … is not binding on the Crown, then that reference to the Crown shall be construed as a reference to ‘the State’.” According to section 3 of this Ordinance, “the State” includes “the Government of the Hong Kong Special Administrative Region”.

(3)  Therefore, as far as the TO is concerned, the Crown refers to the Government of Hong Kong Special Administrative Region.

(4)  The Government of the Special Administrative Region was the executive authorities of the Special Administrative Region. It had to perform functions and implement the relevant policies through various departments and civil servants of various ranks.

(II)  Distinction between “members of the Crown” and “not members of the Crown”[21]:

(1)  The magistrate criticised the prosecution for the artificial differentiation of the capacities of the members of the CA. However, under section 8 of the CAO, the CA members were indeed divided into public officers and non-public officers.

(2)  The Director-General had two capacities: being a CA member and also the head of the OFCA which was a government department. In order to define the applicability of section 3 of the TO on the Director-General, it was necessary to examine whether the Director-General performed the relevant functions and exercised the powers in the capacity of “the Director-General of the OFCA” (a public officer) in a certain actual situation.

(3)  Whether an act was an act of the Crown was a fact specific issue in individual cases. The dual capacities of the Director-General did not undermine the applicability of section 3 of the TO on government departments including the OFCA.

(4)  The appellant cited an English case Cooper v Hawkins[22] as an example to support this argument.

(5)  Although the CA was above the OFCA in the hierarchy, this has no direct relation as to whether section 3 of the TO was applicable to the OFCA and its staff. After all, the correct approach was looking into the legislative intent.

(III)  The prosecution’s submissions implied that the TO overrode the CAO[23]：

(1)  The CA was established under the CAO, whereas the OFCA was different in that it was a new government department established for the purpose of taking over the functions previously performed by the Telecommunications Authority. Section 16 of the CAO provides that “the OFCA must support and assist the Director-General or a representative of the Director-General in the performance of the Director-General’s functions under this Ordinance.”

(2)  Section 19 of the CAO only conferred additional immunity to the CA and officers implementing its policy directions (including the OFCA staff) from civil liability under specified circumstances. This had no connection with the correct construction of section 3 of the TO.

(3)  Section 19 of the CO granted immunity but did not expressly or by necessary implication provide that section 3 of the TO was no longer applicable to “the Crown” (including the OFCA).

(4)  If the magistrate’s grounds were valid, an improper conclusion would follow, namely, the public officers (including the CA staff) who implemented policy directions related to the TO were not entitled to the “general” immunity under section 3 of the TO, whilst other public officers who had no connection with the enforcement of functions under the TO were entitled to it.

(IV)  The OFCA officers were not entitled to immunity from criminal liability while collecting evidence[24]:

(1)  Mr Lai cited the following provisions of the CAO:

(a)  Section 15(1):

“The decisions of the Authority or any committee referred to in section 18(1)(a) in the performance of the Authority’s functions are to be implemented through the Director-General.” (Emphasis added.)

(b)  Section 16:

“OFCA must support and assist the Director-General or a representative of the Director-General in the performance of the Director-General’s functions under this Ordinance.” (Emphasis added.)

It was submitted that the Ordinance clearly set out the respective roles of the CA, the Director-General and the OFCA; and the legislative intent was also obvious, ie in performing the functions and exercising the power conferred on the CA by the Ordinances concerned (including the TO)[25], the decisions of the CA “are to be” implemented through the Director-General, and the OFCA, which was a government department, “must support and assist” the Director-General in the performance of the functions concerned.

(2)  The legislative intent of the CAO was that secretarial, legal and technical support, etc would be provided to the CA by the OFCA to ensure that the CA was under good operation and governance and was able to focus on handling major policies and strategic and regulatory challenges.

(3)  Section 35 of the TO only confers the power of enforcement specified under it to “[the CA] or any public officers authorized in writing in that behalf by [the CA]”. Neither the CAO nor the TO has provided for conferring such enforcement power under the TO to individual non-public officers of the CA.

(V)  Whether the immunity is supreme[26]：

(1)  The legislative intent of the CAO was obviously that the public officers of the OFCA were to perform the relevant functions at the frontline, including those in relation to the TO. The OFCA staff were entitled to the “general” immunity under section 3 of the TO in the course of collecting evidence, including the immunity from criminal liability under sections 8 and 23 which were relevant to the present case.

(2)  Even if the “general” immunity under section 3 of the TO was applicable to the OFCA staff, the relevant “law enforcement” acts performed by the OFCA staff in individual cases were still required to satisfy the test in Cooper v Hawkins on factual issues before such acts could be regarded as [the contraventions done by] the “Government of Hong Kong Special Administrative Region” and not contraventions purely done by individuals. Therefore, the “general” immunity under section 3 of the TO itself was not a “general and supreme immunity from criminal liability” as the magistrate had described.

Respondents’ submissions

33.  On the other hand, the main points in Mr. Kwok’s submissions are as follows:

(I)  The CA was not part of “the Crown” and did not enjoy the immunity to which the Government was entitled;

(II)  The OFCA was an “executive arm” of the CA, acting in the name of the CA, it therefore did not enjoy the immunity to which the Government was entitled; and

(III)  In any event, where the magistrate found that the testimonies of PW1 and PW2 were likely to involve the commission of any offence, it would be permissible for him to caution them.

34.  Mr Kwok pointed out that although PW1 and PW2 were OFCA staff members, the main point was whether they acted in the capacity of the Government and enjoyed the status, immunity or privilege to which the Government/Crown was entitled, including the immunity specified under section 3 of the TO.

35.  Mr Kwok emphasised that according to the CAO under which the CA was established, the CA was a statutory body independent of the Government and not a servant or an agent of the Government, and it did not enjoy any status, immunity or privilege of the Government[27]. Hence it did not belong to the Crown, and therefore the immunity under section 3 of the TO was not applicable to the CA. Section 3 clearly stated that it was only the Crown that the Ordinance did not bind, whereas the CA was an independent body and not a part of the Crown.

36.  As to the appellant’s contention that since the OFCA was a government department supporting the CA, it acted in the capacity of the Crown, and therefore could invoke the immunity under section 3, Mr Kwok said in response that even if the OFCA was a government department, it was still an executive arm of the CA acting with the authority of the CA and on the CA’s instructions, it therefore was not a part of the Crown.

37.  Mr Kwok referred to Town Investments Ltd v Department of the Environment[28]to support his argument:

“[I]f instead of speaking of ‘the Crown’ we were to speak of ‘the government’ – a term appropriate to embrace both collectively and individually all of the ministers of the Crown and parliamentary secretaries under whose direction the administrative work of government is carried on by the civil servants employed in the various government departments. It is through them that the executive powers of Her Majesty’s government in the United Kingdom are exercised … Executive acts of government that are done by any of them are acts done by ‘the Crown’ in the fictional sense in which that expression is now used in English public law.”[29]

38.  He emphasised that only the CA had the power of law enforcement conferred by the relevant Ordinances, and such power came from section 4(2) of the CAO, section 35 of the TO and other relevant Ordinances. The Ordinances conferred power to only the CA and not the OFCA. Besides, the OFCA was the executive arm of the CA, the OFCA staff had to be authorized in writing by the CA before supporting the CA and performing the functions of the CA.

39.  Mr Kwok also submitted that the magistrate did not err in giving caution to PW1 and PW2. He said that before giving them caution, the magistrate was not required to be sure that PW1 and PW2 definitely committed any offence. Provided he considered that PW1 and PW2 would likely commit any offence, it would not be erroneous in law to give caution. He cited two English cases Blunt v Park Lane Hotel Ltd[30] and R v Boyes[31] to support his argument.

40.  He said that in the present case, the magistrate gave PW1 and PW2 caution for they would reasonably likely commit an offence (and not having committed the offence concerned). The magistrate’s analysis on this decision sufficiently reflected that his worry was not a danger of an imaginary and unsubstantial character, and was not an extraordinary and barely possible contingency.

Discussion and consideration

41.  The offences that the evidence at trial showed the two prosecution witnesses might have committed were created under sections 8, 20 and 23[32] of the TO, and the respondents were also charged under the same provisions of the Ordinance.

42.  The appellant contended that since section 3 of the TO expressly provided that the Ordinance did not bind the Crown, it was simply not possible that the prosecution witnesses committed the above offences, and hence the magistrate was wrong in law to caution them.

43.  The provision under section 3 of the TO could be read in para 23(I)(1) above, in which the expression “this Ordinance does not bind the Crown” is relevant to the present case, and the essential issues are: how “the Crown” should be construed and what is the meaning of “does not bind”.

44.  Section 3 of the TO expressly states that the Ordinance does not bind the Crown, and one of the obvious purposes is that the regulatory provisions of the Ordinance do not bind the Crown, including those on the telecommunications established or maintained without a licence stipulated under sections 8 and 23.

45.  I agree with the appellant’s submission that it is not only the effect of the statute but it is also the embodiment of the consistent position of the common law.

46.  In Province of Bombay v Municipal Corporation of the City of Bombay[33], the United Kingdom Privy Council[34] held that unless it was expressly stated or the necessary implication of the statute, the Crown was not bound by a statute. In Lord Advocate v Dumbarton[35], the United Kingdom House of Lords[36] made the same ruling.

47.  One of the crucial issues in the present case is how the term “the Crown” should be construed.

48.  In the present case, the magistrate has unnecessarily mentioned concepts such as “sovereign”, “sovereignty” and so on[37], and he has also failed to give full consideration to the context of the relevant provisions in the IGCO[38]. Sections 2A(3) and section 2 in Schedule 8 to the IGCO provide that “the Crown” shall be construed as a reference to the Government of the Hong Kong Special Administration Region. In other words, since the circumstances of the present case do not involve land, affairs of the Central Government or the relationship between the Central Authorities and the Special Administrative Region[39], “the Crown” mentioned in the Ordinance refers to the Government of the Special Administrative Region.

49.  As such, in the circumstances in the present case, which bodies were included by the Government of the Special Administrative Region and whether the two witnesses were part of “the Crown” and acted for “the Crown” became essential issues.

50.  Two bodies are involved in the present case, namely, the CA and the OFCA. The latter is a government department whereas the status of the former requires further examination.

51.  The CA was established under the CAO[40] (which was enacted in 2012) as a body corporate[41].

52.  According to the Report of the Bills Committee on Communications Authority Bill[42], such arrangements were made with the following background:

“2. Under the existing regulatory regime, the Broadcasting Authority[43] (BA) is responsible for the regulation of television and sound broadcasting services in accordance with the Broadcasting ordinance (Cap. 562) (BO) and Part IIIA of the Telecommunications Ordinance (Cap. 106) (TO) respectively. The Telecommunications Authority[44] (TA) is responsible for the regulation of the telecommunications sector and the technical standards for broadcasting services. Since the establishment of the Office of the Telecommunications Authority (OFTA) in 1993, the Director-General of Telecommunications, who heads the OFTA, has been appointed as the TA under section 5 of the TO.

3. Rapid advancement in technology is blurring the traditional boundaries between telecommunications and broadcasting, leading to convergence of the two markets. According to the Administration, Hong Kong needs to restructure its regulatory institutional arrangements and review the overall regulatory regime and legislation for telecommunications and broadcasting to keep pace with technological development.

4. On 3 March 2006, the Administration published a consultation paper to seek public views on its proposal to merge the BA and the TA into a unified regulator, namely the Communications Authority (CA), for the efficient, effective and coordinated regulation of a converging electronic communications sector. The Administration proposed a two-staged approach -

(a) upon its establishment, the CA would continue to enforce the existing provisions of the BO, the TO and other relevant ordinances, and administer all matters currently under the purview of the BA and the TA; and

(b) the CA would be tasked to review and rationalize together with the Administration the BO and the TO to ensure the consistent and effective regulation of the broadcasting and telecommunications sectors.”

53.  The functions of the CA can be seen in section 4 of the CAO:

“(1) The Authority has all the functions conferred on it by or under the Broadcasting (Miscellaneous Provisions) Ordinance.

(1A) The Authority has all the functions conferred on it by or under Part 11 of the Competition Ordinance (Cap. 619).

(2) All functions conferred on the Telecommunications Authority by or under the Telecommunications Ordinance (Cap. 106), the Broadcasting Ordinance (Cap. 562), the Unsolicited Electronic Messages Ordinance (Cap. 593) or any other Ordinance as they were in force immediately before the commencement date and not inconsistent with this Ordinance are conferred on the Authority.

(3) It is also the function of the Authority to tender advice to the Secretary for Commerce and Economic Development on any legislation, legislative proposals and regulatory policies relating to telecommunications, broadcasting, anti-spamming or activities connected with the telecommunications or broadcasting sectors.

…”

54.  The CA also has various powers conferred by the law[45], including the powers to issue some licences, create class licences, vary conditions of licences and issue permits for certain activities, and the power concerning use of land for telecommunications lines. Generally speaking, these powers are held by the Government, or it may also be said that the powers conferred to CA are in concert with certain public power of the Government.

55.  On the other hand, section 3(1) of the CAO expressly states the CA is a body corporate.

“The Authority is not a servant or an agent of the Government[46] nor does it enjoy any status, immunity or privilege of the Government.”

56.  If some functions of the CA are in general executed by the Government, why is there such a provision in section 3 above?

57.  In the Record of the Proceedings of the Legislative Council Meeting on 30 June 2011[47], in particular the speech given by the then Secretary for Commerce and Economic Development, the matter becomes discernible.

58.  It can be seen from the above Record of Proceedings of the Legislative Council that the statutory functions of regulating the telecommunications and broadcasting sectors belong to the CA, and not any other persons or bodies. The concerns were the freedom of speech and freedom of press and that the CA could work independently. The Secretary made it clear that the absence of the word “independent” did not mean that the CA could not make any independent decision or was subject to government interference in respect of its acts, and in his view, the provisions have addressed the concern that the Administration might interfere with the CA’s operation through any government department such as the OFCA.

59.  Section 4(4) of the CAO reflects precisely the importance of the independent operation of the CA. It provides that the CA, in performing its functions, must have regard to such of the following as appear to be relevant in the circumstances:

(I)  the fostering of an environment that supports a vibrant communications sector to enhance Hong Kong’s position as a communications hub in the region;

(II)  the encouragement of innovation and investment in the communications market;

(III)  the promotion of competition and adoption of best practices in the communications market for the benefit of the industry and consumers; and

(IV)  acting in a manner consistent with the provisions of the Hong Kong Bill of Rights Ordinance[48].

60.  In order to achieve the above purposes, it is considered to be very important that the CA can operate free from interference. The Ordinance is set out and designed in a way that the statutory function of regulating the telecommunications and the broadcasting sectors belong to the CA instead of any other persons or bodies. In discharging its powers and obligations, the CA is not interfered with by the Government, and the Government would not influence the operation of the CA.

61.  Besides, the CAO also provides the following:

(I)  Section 15:

“15. Director-General[49]

(1) The decisions of the Authority or any committee referred to in section 18(1)(a) in the performance of the Authority’s functions are to be implemented through the Director-General

(2) The Director-General must do all acts and things necessary for implementing the decisions referred to in subsection (1).

(3) Without limiting subsection (2), the Director-General must support the Authority in administering and enforcing this Ordinance, the Telecommunications Ordinance (Cap. 106), the Broadcasting (Miscellaneous Provisions) Ordinance (Cap. 391), the Broadcasting Ordinance (Cap. 562), the Unsolicited Electronic Messages Ordinance (Cap. 593) and any other Ordinance.

…”

(II)  Section 16:

“16. OFCA to support Director-General

OFCA must support and assist the Director-General or a representative of the Director-General in the performance of the Director-General’s functions under this Ordinance.” (Emphasis added)

62.  The above sections 15 and 16 provide for the relationship between the CA and its executive arm (the OFCA), and that the Director-General of the OFCA must support the CA in performing or implementing the decisions of the CA and administering and enforcing the relevant Ordinances including the TO, and that the OFCA must support and assist the Director-General in the performance of the Director-General’s statutory functions. The use of the word “must” is significant in that it is not open to the OFCA, which is a government department, not to follow the decisions of the CA, and such arrangement demonstrates the independence of the CA and the purpose of it being free from any Government interference.

63.  The OFCA is a government department, whose head is the Director-General as stated in the Ordinance. I agree it was the intent of the legislature that the CA’s functions associated with the TO are to be enforced by the public officers of the OFCA.

64.  Therefore, it can be seen that the Ordinance is set out and designed in a way that the CA is authorized by law to perform what are essentially the powers and obligations of the Government, and it may make its decisions independently without being restrained by the Government. The actual daily operation of the CA is carried out by the OFCA which is a government department, and the OFCA must do so to ensure the implementation of the CA’s decisions and of the provisions of the Ordinances related to the powers and obligations of the CA. Since the OFCA, which is a government department, must implement the decisions and provisions, there is no room for intervention or non-enforcement.

65.  In my view, generally speaking, the term “the Crown”, where appropriate, may cover bodies which perform what are essentially the functions or powers and obligations of the government.

66.  Therefore, I am inclined to take the view that when the CA performs the powers and obligations under the criminal regime in the TO, it is conceptually acting in the capacity of the Crown. However, under the provision of section 3(3) of the TO, in particular the expression of “nor does it enjoy any status of the Government”, coupled with the reference that “the Crown” is to be construed as a reference to the Government of Hong Kong Special Administrative Region as set out under in section 2 in Schedule 8 to the IGCO[50], I will not consider the present case on the premise that the CA itself belongs to the Crown.

67.  Mr Lai has also indicated that the appellant would not take a stance that the CA belonged to the Crown.

68.  The OFCA is a government department, and in my view, when it, as the Ordinance requires, provides support to the Director-General of the CA to whom it has the duty to support and hence performs the duty of enforcing the criminal regime in the Ordinance, it acts in the capacity of the Crown.

69.  The Government or the Crown may perform its powers and obligations and enforce its decisions only through its officers. When the OFCA officers, with the authorization by law, support the CA in enforcing the criminal regime in the TO, they are acting in the name and the capacity of the Hong Kong Government.

70.  Even if PW1, in a way Mr Kwok suggested, had used his personal mobile phone to facilitate his action, in the circumstances of the present case, the nature of his action, namely acting in the name of the Hong Kong Government and in his capacity of the Crown, would not thereby change.

71.  As to the argument that the CA is above the OFCA in the hierarchy, having regard to the abovementioned policies and the setting and design of the Ordinance, in my view, the said hierarchy is not relevant to whether the witnesses in question are entitled to the immunity enjoyed by the Crown. The main point is: whether they were supporting the CA as required by the Ordinance and thus performed the duty of enforcing the criminal regime in the Ordinance.

72.  In my consideration, I took into account the following stipulation in section 19 of the TO:

“No civil liability is incurred by the Authority or any other person as a result of anything done or omitted to be done by the Authority or the person in good faith in connection with the performance or purported performance of functions conferred on the Authority by or under this Ordinance or any other Ordinance.”

73.  This gives rise to an issue related to what the magistrate thought, ie, whether it is the case that the OFCA officers can benefit from the general immunity under section 3 because they are public officers, whereas the CA officers were only entitled to immunity from civil liability under section 19.

74.  In my view, the setting and design mentioned above have to be taken into consideration. The CA simply would not enforce its decisions nor the criminal regime in the Ordinance on its own, and all these duties are to be performed by the OFCA and its officers. The officers of the CA had the risk of incurring civil liability in performing their duties, eg in advising the Government or making policies within its powers. If the CA officers commit a criminal offence in the execution of their duties, there would be no reason that they could have immunity from criminal liability, and hence entitlement to immunity from civil liability[51] is sufficient.

75.  The OFCA officers are also entitled to the immunity from civil liability within the ambit of the above section 19. As to criminal liabilities, they would not automatically or necessarily be entitled to the protection provided by section 3 simply because of their identity as OFCA officers. They must be lawfully performing the duties as required by the TO for them to be regarded as officers of the Crown who are not bound by the Ordinance under section 3, and such protection was not unrestricted as it was described by the magistrate.

76.  As the English court held in Cooper v Hawkins[52], an officer must be acting in accordance with the instructions of his superior officer and in the course of his duty instead of acting in his personal capacity before his act could be regarded as an act of the Crown.

77.  The magistrate queried that the officers would still be entitled to immunity from criminal liability if they contravened the law in law enforcement. This is of course not the case. At the most, the effect of section 3 is that when an OFCA officer acts properly in the capacity of an officer of the Crown in performing the duties under the Ordinance and enforcing the restrictions of the criminal regime, he is not subject to the criminal regime in the Ordinance. If in the course of it, the officer commits a criminal offence which is just outside the ambit of section 3, the officer would not be entitled to the general and unrestricted immunity from criminal liability as described by the magistrate. Therefore, the concern raised by the magistrate does not in fact exist.

78.  The magistrate also suggested that the OFCA officers have the power of law enforcement only upon satisfying the conditions under section 35 of the TO.

79.  Section 35 of the TO sets out some powers of the CA and the officers authorized by it and also provides that officers must be authorized in writing by the CA for exercising such powers. Nevertheless, this requirement is to be complied with only when the powers described by section 35 are involved, which include the powers to arrest, enter and inspect premises, and seize, remove and detain articles involved in cases.

80.  If a matter involves a power described by section 35, the conditions and restraints mentioned in the paragraph 75 above must also be observed. In the present case, the acts of the prosecution witnesses did not involve the powers under section 35.

81.  Section 35 is also connected with the issue of whether the powers of the OFCA come from the Authority. Mr Kwok submitted, inter alias, that if the powers of the OFCA came from the Authority, then since the Authority is not “the Crown”, the OFCA would not be “the Crown”.

82.  Mr Lai accepted, and I also agree, that all functions under the TO belonged to the CA. However, as stated above, the law is designed in such a way that the OFCA must provide support in the implementation and enforcement of the Ordinance. The word “support” is used here to illustrate that the two do not have the ordinary superior-subordinate relationship, and also to highlight the situation that even if the CA does not belong to “the Crown”, the OFCA is not affected in acting in the capacity of the Crown in the implementation and enforcement of the public affairs and public powers under the TO.

83.  Since the OFCA is duty-bound to support the Authority in implementing and enforcing the TO, in performing its duties, it does not have to wait for the instructions from the Authority before commencing work in each and every case. Section 35 appears to be related to certain powers only, it is also my view that since the OFCA has irrefutable duties to support the Authority in implementing and enforcing the Ordinance, the authorization of the necessary power for implementing and enforcing the Ordinance to the OFCA and its officers must be implied in the Ordinance. In any event, Mr Lai pointed out that the relevant authorization was set out expressly on the warrant card of each OFCA officer:

“[…] the Office of the Communications Authority is authorized by the Communications Authority (“the Authority”) to perform and exercise the functions, duties or powers which are imposed or conferred on the Authority by the above Ordinances and the Regulations made thereunder, including investigations and inspections of facilities, apparatuses, licences and certificates issued by or on behalf of the Authority pursuant to section 35 of Cap 106, section 7A of Cap 562 and section 40 of Cap 593.”

84.  Although Mr Kwok raised that:

(I)  the warrant card in question was not produced to the court at trial, and there was no evidence of whatever stated thereon; and

(II)  the authorization on the warrant card appeared to be not proper at least on the face of it (because the authorization was signed in the name of the Director-General only);

However, I am of the view that the present case involves only points of law, the court is therefore entitled to have a look at the document in question. Having looked at the document, I find that what is stated does express an authorization. Whether the authorization is proper does not affect the consideration of the point of law in question, and the Authority obviously intends to give authorization to the officer concerned.

85.  The magistrate also pointed out that sections 3(3) and 19 of the CAO were what “otherwise expressly provided”[53] referred to in section 3 of the TO. Mr Kwok supported this view. On this issue, I do not agree with the magistrate. According to my analysis above, in considering whether the acts of the prosecution witnesses in the present case amounted to an act of the Crown so that the Ordinance did not bind them, these two provisions do not constitute what is otherwise expressly provided.

86.  In view of the above reasons, I find that the acts of the two prosecution witnesses amounted to acts of the Crown, and section 3 of the TO therefore applied, and the acts of these two persons were not bound by the criminal regime in the TO.

87.  As such, my answer to point of law (I) is “yes”, the magistrate had erred in law.

Point of law (II)

88.  Here, the question is: whether the magistrate erred in law in cautioning the prosecution witnesses about their right against self-incrimination?

89.  Generally speaking, when a witness gives evidence, if the answer to any question or any document or physical object requested to be produced would likely incriminate him of any offence, then he is protected from answering the question or producing the document or physical object[54].

90.  PW1 and PW2 played the following roles in the case:

(I)  PW1 was assigned with the investigation of this case of suspected broadcasting without any licence and as the exhibit officer, and in the course of the investigation, he received from other OFCA staff exhibits related to the present case, including a memory card; and

(II)  PW2 was responsible for taking a video recording at the scene.

91.  Mr Lai submitted that at the time of the offence, PW1 and PW2 were both public officers on duty and assigned with the carrying out of duties in question under the TO. If the Court of First Instance ruled that the immunity under section 3 of the TO was applicable to the OFCA and its officers, there would not possibly be any contravention of the criminal provisions under the TO on the basis that PW1 and PW2 were at the material time OFCA officers who were not bound by the TO at the time of law enforcement.

92.  Mr Lai asserted that under the circumstances of the present case, there was just no danger that PW1 and PW2 would be prosecuted for contravening the TO, the magistrate nevertheless cautioned them of the right against self-incrimination, which reflected that he had not considered or had not given appropriate consideration to whether PW1 and PW2 would incriminate themselves (ie criminal liability under sections 8 and 23 of the TO) by testifying or continuing to testify so that they would each face the danger of being criminally prosecuted. The magistrate was wrong to have done this and he erred in law.

93.  Mr Lai also submitted that if the two witnesses could benefit from section 3 of the TO, it was simply not possible that they committed any offence, and hence there was no need to caution them.

94.  The main line of Mr Kwok’s submissions was that if the court’s opinion on point of law (I) was in the negative, the answer to point of law (II) would definitely be negative.

95.  Mr Kwok also submitted that regardless of the answers, the magistrate did not need to be sure that PW1 and PW2 would definitely commit an offence before he cautioned them. As long as he thought PW1 and PW2 would likely commit an offence, then his caution would not be erroneous in law. He cited Blunt v Park Lane Hotel Ltd[55] and R v Boyes[56] to support his argument.

96.  Mr Kwok said that the magistrate had analysed the provisions in the Ordinance and also considered the actual situation. The analysis on his decision of giving caution was on the basis that PW1 and PW2 would reasonably likely[57] commit an offence (instead of having committed the relevant offences). As far as the present case is concerned, his worry was not a danger of an imaginary and unsubstantial character[58], nor was it an extraordinary and barely possible contingency[59]. Mr Kwok also pointed out that since PW1 had used the radio function of his personal phone, at least it was likely that he could not benefit from section 3 of the TO, and therefore the magistrate was not necessarily wrong to give the caution concerned.

97.  Mr Kwok said in his submissions that under such circumstances, even if the court’s answer to point of law (I) was “yes”, in view of the magistrate’s analysis before giving caution, the answer to point of law (II) should still be “no”.

98.  Since this court has ruled that section 3 of the TO was applicable to the present case, it would be hard to apprehend the likelihood that the two prosecution witnesses committed the relevant offence.

99.  I have considered Mr Kwok’s submissions, namely if the magistrate’s caution was given on the basis of the likelihood that the two witnesses committed the offence, he would not be wrong.

100.  I agree with Mr Lai’s submissions. Based on the effect of section 3 of the TO, there was simply no room for the existence of the said danger.

101.  Mr Kwok said in his submissions that if he had the chance to cross-examine the witnesses, he could possibly bring out the evidence that the said officers’ conduct did not satisfy the conditions for benefitting from section 3.

102.  In my view, the situation described by Mr Kwok did not happen at trial or at least did not happen after the material stage. At trial, up to the material stage, there had been no sign of such situation. The evidence only suggested that the two witnesses had carried out public duty in a case of suspected contravention of the Ordinance. At that time, the magistrate should only consider if the two witnesses were officers of the Crown and hence benefitted from section 3.

103.  My answer to point of law (II) is also “yes”: it was erroneous in law for the magistrate to give the witnesses the relevant caution.

Should there be a retrial?

104.  The appellant applied to the court for a direction of a retrial of the case to be held before another magistrate under section 119(1)(d) of the Magistrates Ordinance if the appeal was allowed.

105.  The appellant submitted that although there had been a lapse of six odd years after the occurrence of the case, it involved no undue delay caused by the prosecution. From the time the prosecution commenced the appeal by way of case stated to the time the magistrate signed on the stated case, although it was not a short period, the matter was delayed mainly because the respondents had insisted on obtaining the transcript of the entire trial.

106.  The following material dates were involved in the course of the event:

Date	Events
2018.10.23	The magistrate dismissed all the summonses. The trial did not proceed until 2018 because the prosecution and the defence both agreed that since another case involving sections 8(1)(a) and 23 of the TO[60] was in the course of appeal, the result of which would have material influence on the present case, the hearing should not continue until the outcome of that case was available. Finally, in that case, there was an appeal to the Court of Final Appeal but leave to appeal was refused by the Court of Final Appeal on 18 August 2017.[61]
2019.3.8	Department of Justice provided the draft of the stated case to the magistrate and the defence.
2020.3.29	The Department of Justice indicated to the magistrate that the defence had obtained the transcript of the trial and lodged the amended draft of the stated case.
2020.7.30	The Department of Justice received the stated case signed by the magistrate.

107.  In the case of香港特別行政區 訴 劉棟平[62], the Court of Appeal made the following comments:

“5. The legal principle involving whether the case of a successful appellant should be remitted for retrial has been discussed in detail in R v Holgate (No.2) [1996] 3 HKC 324.

6. Mortimer JA made it clear right at the outset of the judgment at p 325:

‘On an application for a retrial, it was necessary for the court to consider all the surrounding circumstances. These included the seriousness of the offence, the history of the proceedings, the evidence for both prosecution and defence, the complexity or otherwise of the trial, the reasons for the success of the appeal, the lapse of time since the alleged offence and since the trial and the length of the sentence which the appellant has served.’”

108.  Furthermore, in HKSAR v Lee Shing Hung[63], the Court of Final Appeal indicated that even if the appellant had finished serving the sentence, this did not of itself make an order for retrial wrong in principle, and that whether a retrial should be ordered involved an exercise of discretion by the appellate court taking into account all relevant considerations, including the public interest and the legitimate interests of the defendant[64].

109.  In HKSAR v Ma Sin Chi[65] and HKSAR v Ng Chun To Raymond[66], after going through a number of relevant precedents[67], the Court of Appeal pointed out some relatively important factors which should be taken into account in considering whether an order for retrial should be made, including the following:

(I)  It is necessary to balance the interests of the public and those of the accused in deciding whether an order for retrial goes in line with [public] interest;

(II)  If the appeal succeeds because of a technicality, it is necessary to consider whether releasing the accused is in line with the public interest;

(III)  Although assessment of the strength of the evidence adduced against the accused is important, it is only one of the factors;

(IV)  it is necessary for the court to consider all the circumstances, including [68]:

(1)  the seriousness of the case;

(2)  the history of the proceedings;

(3)  the evidence for the prosecution and the defence;

(4)  the complexity of the trial;

(5)  the reasons for the success of the appeal;

(6)  the lapse of time since the alleged offence;

(7)  the lapse of time since the trial; and

(8)  the sentence imposed on the accused.

110.  The present case is serious to a certain extent, and it was not the first time that the respondents committed the offence in question. However, the penalty for the offence is only a fine after all [69].

111.  It has been over seven years since the alleged offence happened. As to the lapse of time, the appellant is not really responsible. As the appellant has pointed out, it was attributed to the respondents’ insistence on having the transcript of the recordings of the trial, which was time consuming. This was actually what has happened. Nevertheless, in the circumstances of the present case, the respondents’ request for the transcript cannot said to be completely unreasonable.

112.  In my consideration, I have taken into account the following three matters:

(I)  After the magistrate had made the relevant ruling, the prosecution could still consider giving immunities to the prosecution witnesses so that the two witnesses could continue with their testimony at ease. The prosecution did not do so. I understand that this is a matter of principle as the prosecution thought that such arrangements should not be made because it was the magistrate’s mistake. Nevertheless, whether it is appropriate to allow the matter lead to a retrial is something worth consideration.

(II)  The prosecution had never issued any witness summons to compel the two witnesses to continue to testify, but instead even allowed them not to give any more evidence and called no other witness;

(III)  Under the cautions given by the magistrate, the witnesses in fact could still continue to testify save only that they might request to be permitted not to answer relevant questions. However, the prosecution decided not to call any more witness.

113.  Having carefully considered the relevant circumstances as a whole, I do not think that an order for retrial is necessary or proper. Although the long lapse of time was not attributable to any fault of the prosecution, the risk of resulting in an unfair trial or hindrance in the proceedings must be taken into account. Therefore, the appellant’s application is refused and no order for retrial is made.

Conclusion

114.  Therefore, my answer to point of law (I) is: “yes”, the magistrate erred in law.

115.  My answer to point of law (II) is also “yes”, the magistrate’s giving the cautions in question to the witnesses was erroneous in law.

116.  The appeal is allowed and I make no order for retrial.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.