SECRETARY FOR JUSTICE v. OCEAN TECHNOLOGY LTD AND OTHERS

HCA 70/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 70 OF 2008

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J U D G M E N T

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1. On 9 January of this year, the Secretary for Justice applied ex parte – but on notice to the defendants – to restrain them from making unlicensed radio broadcasts contrary to sections 8 and 23 of the Telecommunications Ordinance, Cap.106.  It was an unusual application, indeed an exceptional one.  I say that because the Telecommunications Ordinance makes it a criminal offence to make unlicensed radio broadcasts.  The Secretary for Justice, however, felt it necessary to invoke the assistance of the civil courts in aid of the criminal law.

2. Fung J, who heard the application, was prepared to grant the application but only for a limited period of time so that, if necessary, the matter could be brought back before the court and further representations made.  He therefore granted the injunction for a period of eight days only.

3. On 18 January, that being the last day of the injunction, the Secretary for Justice, represented, as leading counsel, by Mr Jat Sew Tong SC, came before me seeking an order that the injunction be continued without the need for any undertaking as to damages.  That application was opposed by all of the defendants.

4. Under the Telecommunications Ordinance, the legislature has provided for the control of radio broadcasting.  A system of licensing has been created.  In terms of that system, a body called the Broadcasting Authority considers applications and then makes recommendations to the Chief Executive in Council who may or may not grant a licence.

5. The powers given to the Broadcasting Authority and to the Chief Executive in Council have been conferred because the public is entitled to have the radio spectrum managed in a way that ensures the safety and well-being of the community.  The Ordinance therefore creates a public right and the Secretary for Justice is the guardian of that right.

6. As I have said earlier, the Telecommunications Ordinance provides criminal sanctions for unlicensed radio broadcasting and those sanctions are by no means inconsequential.  On indictment, for example, a fine of $100,000 may be levied and imprisonment imposed for up to five years.

7. On behalf of the Secretary for Justice, however, it has been said that the defendants have been acting in persistent and open defiance of the law, making regular radio broadcasts even though they have no licence and have pledged to continue making such unlicensed broadcasts.  Although criminal prosecutions have been brought against the defendants, at this moment in time the criminal law does not have the means to bring their continued criminal conduct to an end.  It is for that reason that a civil injunction is sought, prohibiting the defendants from making further unlicensed broadcasts upon pain of contempt.

8. In reply, the defendants say that they are not guilty of persistent and open defiance of the law.  They say that the relevant licensing provisions in the Telecommunications Ordinance infringe their rights enshrined under the Basic Law to freedom of speech and freedom of communication and do so in a way that is unconstitutional.  Those provisions, therefore, have no force and effect.

9. The defendants say they fully accept that there must be an orderly and rational control of the radio spectrum.  As I understand it, they do not object to a system of licence control.  What they seek is a system of licence control that is constitutional.  The defendants contend that they are entitled to ignore the current unconstitutional licensing regime and to continue exercising their right to freedom of speech and communication by way of their radio broadcasts.

10. Those broadcasts, say the defendants, are made on the same frequency; namely, 102.8 Mhz, and have a limited range.  They present no hazard to air navigation nor essential services.  Nor is there any evidence that the broadcasts impinge on other frequencies.

11. In the circumstances, say the defendants, there is no need for an injunction of the kind sought by the Secretary for Justice.  Criminal prosecutions have already been instituted and those prosecutions should be seen through in order to determine whether the licensing provisions contained in the Telecommunications Ordinance are unconstitutional, as they say, in which case they are guilty of no offence, or are found to be constitutional, in which case they must face the penalties imposed under criminal law.

12. It is said that in law context is everything and to better understand the respective positions of the parties, it is necessary, I think, to set out some history.

13. In or about 2005, the defendants, or a number of them, began to make radio broadcasts under the name of Citizens’ Radio, using, as I have said, a frequency of 102.8 Mhz.

14. In 2005, an application was made on behalf of Citizen’s Radio for the issue of a licence.  The application was considered by the Broadcasting Authority and the Chief Executive in Council.  In 2006, however, the application was refused.

15. Faced with what they believe to be an unconstitutional licensing law, the defendants continued their radio broadcasts.  I understand it has been for about an hour a day.

16. In 2007, the defendants were charged with various criminal offences for making unlicensed broadcasts.  When they appeared for trial before the magistrate, they raised the defence that the relevant provisions of the Telecommunications Ordinance were unconstitutional.

17. On 8 January of this year, the magistrate ruled that, in his view, the licensing provisions were indeed unconstitutional.

18. A magistrate has no power to make a formal declaration as to constitutionality.  His determination was no more than one step in the process of determining whether the prosecution had proved its case against the defendants.  However, rather than moving to acquit the defendants, the magistrate acceded to an application by the prosecution that he adjourn the criminal proceedings pending an appeal to be made by the prosecution (by way of case stated) against his ruling.  In this regard, the magistrate acted in accordance with the guidelines given by the Court of Final Appeal in Secretary for Justice v. Yau Yuk Lung [2007] 3 HKLRD 903, at 925.

19. It should be noted that, at the same time as the magistrate acceded to the prosecution request to adjourn the criminal proceedings pending the appeal by the prosecution, he also acceded to a request made by the prosecution to suspend; that is, to postpone, his determination that the licensing provisions in the Telecommunications Ordinance were unconstitutional.

20. There is no rule of stare decisis in the Magistrates’ Court.  The magistrate’s determination had no binding effect on any other court, no binding effect indeed on other magistrates.  The request that he should suspend his determination was no doubt made out of an abundance of caution rather than a fear that it would, pending the prosecution’s appeal, bind any other court or tribunal.  But, in so far as it may be relevant, what must be understood is that the magistrate did not purport to make any kind of order of temporary validity.

21. What then is the position at this time in respect of the criminal proceedings?  As I see it, the position is simple enough.  The criminal proceedings stand adjourned pending a final determination in the higher courts of whether the licensing provisions in the Telecommunications Ordinance do or do not offend the Basic Law.

22. The defendants have not been acquitted but nor have they been convicted.  They continue to say that the licensing provisions which prohibit them from broadcasting are unconstitutional and can be ignored.  In that contention, they have received support from the ruling of the magistrate.

23. However, the applicants know that they continue to broadcast at their own risk.  If they do so they may face further criminal charges.

24. Equally, of course, it may be said that the state proceeds against the defendants at some risk too.  It has been put on notice that the licensing provisions are asserted to be unconstitutional and an arrest made pursuant to those provisions may itself be unlawful.

25. From this background arises the application by the Secretary for Justice for an injunction to restrain the defendants from continuing their broadcasts pending the final determination of the constitutional issue in the courts.  However it may be perceived by the defendants, the application is not made simply to give the prosecution an advantage in the on-going criminal proceedings.  It is essentially independent of those proceedings.  As I have said earlier, it is made because the Secretary for Justice asserts that there is a public right to be protected.

26. The facts of this present case, I think, graphically illustrate why Lord Wilberforce in his speech in Gouriet v. Union of Post Office Workers [1978] AC 435, at 481, observed that, both for the officer of the Government making the application and for the court exercising its discretion to determine it, the jurisdiction is one of delicacy and only to be exercised with caution.

27. In Portsmouth County Council v. Richards [1989] 1 CMLR 673, at 710, Mann LJ said the following :

“The jurisdiction enjoyed by the civil courts to aid the criminal law is undoubtedly only to be used exceptionally and with great caution.  The reason is obvious.  The exercise of the jurisdiction can expose a defendant to greater penalties than those prescribed for the transgression of the criminal law.”

He continued by saying :

“For my part I think it is undesirable to attempt any definition of the circumstances in which this exceptional jurisdiction should be exercised.  I would regard each case as depending on its own peculiar facts.”

28. Looking to the circumstances of the present case, it is said that the defendants, in continuing with their broadcasts, are persistently and openly defying the law.

29. In Attorney-General v. Harris [1961] 1 QB 74 certain flower sellers found it profitable to trade in contravention of the regulations because the fines they had to pay on conviction were not a deterrent.  Sellers LJ held that a persistent and deliberate flouting of the law was in itself a serious injury to the public, warranting an injunction, when the monetary penalties imposed under the regulations were ineffective to secure compliance with the law.

30. But in the present case, the defendants have not once been convicted of making unlicensed broadcasts.

31. For my part, nor may it be said that they are guilty of deliberate flouting of the law.  They hold a view that the licensing provisions in respect of radio broadcasting are unconstitutional and they are acting on that belief.  It would be wrong, I think, to say that they have simply found a loophole and are exploiting it.  Their methods may make some people uncomfortable but it must be accepted that, right or wrong, they see themselves as acting to protect certain fundamental freedoms.

32. In Attorney-General v. Bastow [1957] 1 QB 514, at 521, Devlin J said that, if the Attorney-General considers it necessary to seek the assistance of the court in enforcing obedience to a clear provision of the law, the court ought to be slow to refuse him the relief he seeks.  But in the present case – certainly as matters presently stand in light of the magistrate’s ruling – it may reasonably be argued that there is no ‘clear’ provision to be enforced.  Indeed, the root question at issue is the lawfulness of the provisions which the Secretary for Justice now seeks to enforce by way of injunction.

33. During the course of submissions, Mr Jat, for the Secretary for Justice, referred me to a number of authorities to the effect that the Secretary for Justice was in a different position from an ordinary litigant, that he represented the public interest and when he sought the assistance of the civil court, as he has done in the present case, the court should only refuse him relief in the most exceptional circumstances.

34. I do not in any way disregard those authorities.  I am aware that the Secretary for Justice would only have sought an injunction because he was of the opinion, an informed opinion, that, in the greater public interest, there were pressing reasons for it.  But that being said, the final discretion must lie with the court.  Importantly too, when fundamental freedoms are at issue – issues of freedom of speech and freedom of communication – this court bears special responsibilities.

35. In my judgment, the most pressing issue in this application is not compliance with the law for the law itself is in doubt.  The most pressing issue, it seems to me, is whether the continued broadcasts undermine the public right to have a radio spectrum managed in a way that ensures the safety and well-being of the community.  On behalf of the Secretary for Justice it is said that the continued broadcasts undermine this public right.  On behalf of the defendants it is said that they do no such thing.

36. I start by noting that, when making his submissions on behalf of the Secretary for Justice, Mr Jat accepted that – thus far – no assertion could be made that the broadcasts by Citizens’ Radio had created any hazard.  I take that to mean any hazard to air navigation or essential services on the ground such as the police and ambulance services.

37. I further observe that, although the Broadcasting Authority apparently receive some 3,000 complaints a year from legitimate users of telecommunications, no evidence was put before me to the effect that Citizens’ Radio has been proved to be the cause of any complaints.

38. In this regard, it is to be remembered that Citizens’ Radio has broadcast on a set frequency of 102.8 Mhz since about 2005, a period of over two years.  During the course of the hearing no suggestion was made that the operators of the radio service have surreptitiously moved from location to location to avoid detection.  To the contrary, the defendants have been prepared to give undertakings to notify the authorities when they will transmit, from where and on what frequency.

39. Any hazard to air navigation would, of course, be a serious matter.

40. But in this regard, evidence was put before me of an exchange in the Legislative Council just a week or so ago in which the Director General of the Civil Aviation Department was asked whether radio transmissions on 102.8 Mhz – the frequency used by Citizens’ Radio – caused interference with his Department’s telecommunications systems.  The Director General said that the wireless frequencies used by air traffic control are higher and there is therefore no interference.

41. During the course of submissions, I was reminded that the matter was not that simple.  I was referred to the affirmation of Mr Lau Kwong Cheung, the Assistant Director of the Office of the Telecommunications Authority, put into evidence on the morning of the hearing and to which the defendants therefore had no opportunity to reply.  In his affirmation, Mr Lau referred to international studies and spoke of past instances of interference with aeronautical radio navigation and aeronautical mobile systems due to faulty or poorly engineered FM broadcasting equipment.  He said : “There can be no doubt that improper use of FM frequencies do interfere with aeronautical channels.”

42. That may be so.  But again, it seems to me, matters must be viewed in context.

43. The defendants have been operating Citizens’ Radio since 2005, more than two years.  Their broadcasting activities must have been known for about that time.  There is no evidence, however, of any great urgency exercised in the past to close down the broadcasts.

44. As I have said, the defendants have never, from what I understand, acted in a clandestine manner.  Importantly, their radio equipment – which sends a relatively weak signal – can be inspected.  There are provisions contained in the Telecommunications Ordinance which give ample powers to the authorities to do so and which nobody during the hearing suggested are unconstitutional.

45. What then is the real concern spoken of by counsel for the Secretary for Justice?  The real concern, it seems to me, is that, unless the use of the radio spectrum is properly regulated and managed, there is always the potential for interference and, worse, for hazard too.  There is a fear that, unless the defendants are made the subject of an injunction, unless their activities are stopped and stopped immediately under pain of contempt, they may excite others to broadcast illegally.  Mr Zervos, SC, who spoke later in the day in the place of Mr Jat, said that it would only take one maverick broadcaster suddenly coming on the air to cause a tragedy.

46. That is a chilling prospect.  But the fact remains that no evidence was put before me of any ‘copy cat’ broadcasters coming on the air since the criminal prosecution of the defendants achieved prominence.  No doubt there is a risk – there is always a risk – of illegal users coming on the air.  But I ask myself, what is likely to excite ‘copy cat’ broadcasters more?  Is it the fact that the defendants are permitted, within voluntarily controlled circumstances, to continue broadcasting – an action which they protest is entirely lawful – until their criminal prosecution is decided by the courts?  Or is it the fact that they have been stopped from broadcasting by civil injunction before the determination of their criminal case?  It is a fact of history that, when standard bearers fall, there are always others eager to take up the flag.

47. For the reasons given, therefore, and bearing in mind that the jurisdiction enjoyed by the civil courts to aid the criminal law is only to be used, as Mann LJ said, ‘exceptionally and with great caution’, I have come to the conclusion that this is not an appropriate case for any further extension of the injunction.  The application is therefore dismissed.

48. Before concluding, it is necessary to raise two matters.

49. First, it is important in the public interest that the constitutional issue which falls to be determined in the criminal proceedings against the defendants be determined without delay.  There must be an expedited hearing.  I do not know the present state of play but if there is any risk of delay there must be a directions hearing called at the earliest opportunity.

50. Second, while I have declined to extend the injunction, the fact remains that on 10 January of this year Fung J saw fit for a limited period of time to grant that injunction.  If it is shown that any of the defendants have acted in contempt of that injunction they will be held accountable.  I say that because, unless the integrity of our judicial system is honoured, this court will be unable to afford the very protection that the defendants themselves have sought from it.