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)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.  On 12 December 2008 we handed down judgment in this case.

2.  The respondents to that appeal now seek certificates pursuant to the provisions of section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, that certain points of law of great and general importance, which they identify in their Notices of Motion, are involved in that 12 December decision.

3.  The application by some of the respondents is made a few days later than the time required by the relevant practice direction but, given the explanation and the circumstances as a whole, we nonetheless entertain the application.

4.  Mr Dykes appears on behalf of the fourth respondent, on whose behalf a set of suggested questions was originally presented but not pursued today.  Mr Dykes was minded to substitute a revised list of questions but, on reflection, recognized, we think, that they did not arise from this court’s decision and, in the event, he was content to adopt the questions posed on behalf of the fifth respondent and we proceed accordingly on that basis.

5.  The fifth respondent proposes two questions for certification:

(1)  Are sections 8 and 20 (“the offence-creating provisions”) of the Telecommunications Ordinance, Cap. 106 free-standing, in the sense that they survive constitutional scrutiny regardless of the validity of the licensing regime for a sound broadcasting licence contained in Part IIIA of the Ordinance?

(2)  Are the licensing regime and/or the offence-creating provisions constitutional. 

6.  For reasons we explained in our judgment, the question in the case was whether the offence-creating provision was constitutional and, given the particular subject matter and a proper construction of the particular Ordinance, we do not think that it is arguable that the validity of the offence-creating provision depended upon the validity of the licensing regime as a whole.  Mr Lee’s argument, as evidenced in the written submissions, is that the court erred in divorcing the offence-creating provisions from the statutory context.  A reading of the judgment would, we believe, reveal that our conclusion was expressly based upon a construction of the Ordinance as a whole (see for example, para 95 of the judgment).  Accordingly, we refuse the certification sought by the fourth and fifth respondents.

7.  The first, second, third and sixth respondents seek a certificate for questions along similar lines.  The suggested points of law of great and general importance that they wish this Court to certify are these:

(1)  When the Court of Appeal finds that sections 8 and 20 are valid, it has not considered beforehand whether the statutory licensing regime of section 13C(2) of the Telecommunications Ordinance, Cap. 106, violates constitutional principles.  That includes:

(a)  whether the licensing regime is a disproportionate restriction; or

(b)  is it necessary to have a licensing regime in a democratic society?

(2)  In considering the constitutionality of the offence-creating provisions, can (the Court) only make a finding on the offence-created provisions in isolation, while need not care about whether the licensing regime violates constitutional principles?

8.  The questions thus posed recognize that the court specifically addressed the constitutionality of the offence-creating provision.  We held that it is always open to a defendant to challenge the constitutionality of an offence-creating provision and we addressed the question whether this offence-creating provision was constitutional.  It is not a question of not caring whether the licensing regime violates constitutional principles but rather of holding, as a matter of law, that upon a construction of this specific statutory scheme, the constitutionality of that regime was not relevant to the constitutionality of the offence-creating provision.  For these reasons, we also decline a certificate in respect of the application of these respondents.

9.  We shall move next to the question of costs.

[Submissions as to costs of the appeal]

10.  We have received submissions on the question of costs. 

11.  In our judgment of 12 December 2008, we made a costs order nisi that the costs of the appeal be paid by the respondents to the appellant, to be taxed if not agreed.  Each respondent now seeks a variation of that order.  They say that it would be appropriate to direct that there be no order as to the costs of the appeal by way of case stated.

12.  We think that the respondents’ argument is valid.  The appeal succeeded upon an approach that was not canvassed by the prosecutor in the court below.  Had it been, it may be that the application to state a case would have been quite unnecessary.  The respondent was content in the court below to argue the question whether the licensing scheme was such as to fit the requirement that restrictions on the freedom of expression be prescribed by law.  Furthermore, the preliminary point taken by the appellant on appeal was a point primarily going to jurisdiction generally of a magistrate to entertain in criminal proceedings a challenge to the legality of an administrative act, a point somewhat different from the precise point identified by this court and which determined the appeal. 

13.  Accordingly, the order absolute that we make is that there be no order as to the costs of the appeal.