SECRETARY FOR JUSTICE v. OCEAN TECHNOLOGY LTD AND OTHERS

FAMC No. 1 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1 OF 2009 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 173 OF 2008)

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D E T E R M I N A T I O N

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Chief Justice Li:

1.  This application for leave to appeal is brought by Ocean Technology Ltd.  The other applicants who are individuals have withdrawn their applications.  Ocean Technology Ltd was the 1^st defendant in a prosecution for various offences under the Telecommunications Ordinance, Cap 106, before a Magistrate (Mr Douglas T H Yau) at the Eastern Magistracy.  It had applied for and been refused a broadcasting licence for a proposed Citizens Radio Station which was to operate on a non-profit making basis.  It is alleged to have gone ahead anyway with such broadcasts and the other defendants are alleged to have committed related offences in connection with such broadcasts.

2.  The defendants challenged the constitutional validity of the licensing regime, arguing that it rests on unfettered powers exercised by the Chief Executive in Council and that it represents a restriction of the freedom of expression which is not “prescribed by law” and therefore unconstitutional.  It is contended that consequently, the offence creating provisions and the charges are also unconstitutional.  The Magistrate upheld this objection in the determination of a preliminary issue and stated a case for the court’s opinion.  The matter came before the Court of Appeal,[1] which reversed the magistrate’s ruling.

3.  The Court of Appeal held that on the true construction of the Ordinance, the validity of the licensing regime and of the decision not to grant Ocean Technology Ltd a licence were not relevant to the offence of broadcasting without a licence or the related offences with which the defendants were charged.   A challenge to the constitutionality of that regime might have been, but was not, mounted by way of judicial review and could not be entertained as a collateral challenge within the prosecution.  While it was open to the defendants in mounting their defence to question the constitutional validity of the offence-creating provisions themselves (as opposed to the licensing regime), such a challenge was rejected by the Court of Appeal.

4.  Mr Martin Lee SC for the applicant has said all that could be said in support of the application.  But we are not satisfied that the applicant has made out a reasonably arguable case that the Court of Appeal was wrong.  Accordingly we refuse the application for a certificate and for leave to appeal with no order as to costs.

[1]  [2009] 1 HKC 271.