WONG WING HEI v. COMMUNICATIONS AUTHORITY

HCAL 223/2025

[2026] HKCFI 5515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 223 OF 2025

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D E C I S I O N

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A.  Introduction

1.  By his Form 86 dated 17 January 2025, the Applicant sought leave to apply for judicial review so as to challenge a decision (“Decision”) of the Communications Authority (“CA”) to implement and regulate mobile service providers to play an auto voice alert message when local mobile and fixed services users answer calls made from newly activated local pre-paid SIM (“PPS”) cards.

2.  In support of his leave application, the Applicant filed an affirmation dated 17 January 2025 (“Affirmation”).

3.  I gave directions giving leave to the CA to file an Initial Response to the application, and leave to the Applicant to file a Reply to that Initial Response.  My directions also indicated that I would then decide whether to deal with the application for leave to apply for judicial review on paper, and if so that I would proceed to do so without further notice to the parties.

4.  The Initial Response was served by Mr Vishal Melwani, Solicitor Advocate, of Karas So LLP, solicitors for the CA.  The position of the CA is that the application for leave to apply for judicial review should not be granted on various bases (which I will consider below).  The Applicant filed a Reply to that Initial Response.

5.  Having considered the materials, I am satisfied that I can appropriately deal with the application for leave to apply for judicial review on the papers.

6.  This is my Decision.

B.  Background

7.  The background can be ascertained from the Form 86, Affirmation, Initial Response and Reply, and can be restated broadly as follows.

8.  Pursuant to the Communications Authority Ordinance Cap 616 (“CAO”), an important statutory function of the CA is to oversee the regulation of telecommunications and broadcasting industries in Hong Kong.  The Office of the Communications Authority (“OFCA”) is the executive arm of the CA.

9.  To explore, identify and implement various measures and initiatives from telecommunications perspectives, a Working Group on Tackling Fraudulent Calls and Messages by the Telecommunications Industry (“Working Group”) was set up by the OFCA in September 2022 with participation from the Police and major telecommunication service providers in Hong Kong.  According to the Police’s information, it was reported that 74% of telephone numbers identified in phone deception cases were local mobile phone numbers and PPS cards are the preferred choice of scammers and fraudsters.

10.  In December 2023, the OFCA commenced studies on new measures to tackle the use of newly activated PPS cards in phone deception cases, which led to the subsequent formulation of the voice alerts for calls from newly activated local PPS cards (“Voice Alert Requirement”) (aimed at promotion and protection of the interests of customers of telecommunications goods and services) and preparation of a draft “Code of Practice on the Sending of Voice Alert to Called Parties in Answering Calls from Newly Activated Local Pre-paid SIM Cards” (“CoP”).  Suggestions and comments on the draft CoP and the draft audio file for voice alert were then sought from the members of the Working Group and the four mobile network operators (“MNOs”) respectively.  On 24 May 2024, the OFCA issued to the industry a summary of views and comments from MNOs on the CoP, the OFCA’s responses to MNOs explaining the arrangement and rationale of the CoP, and the finalised CoP.

11.  According to the CoP, it requires the MNOs holding Unified Carrier Licences (“UCLs”), mobile virtual network operators (“MVNOs”) holding Services-based Operator (“SBO”) licences for Class 3 (MVNO) Service and operators offering mobile services under the Class Licence for Offer of Telecommunications Services (“CLOTS”) (“Mobile Service Providers”) to send a voice alert of around three seconds of “來電由新儲值卡打出” (i.e. “Call made from a new PPS card”) in Cantonese and Putonghua (“Voice Alert”) to local mobile and fixed service users for calls made from newly activated local PPS cards starting from 31 December 2024.

12.  Mobile Service Providers will only provide the Voice Alert for calls made by a new PPS card for a specified period of several months after activation (“Activation Period”), which was determined with the aim to minimise the impact on long term PPS card users and in accordance with the latest trend of scam calls made from newly activated PPS cards.  Depending on the latest phone scam situation, the CA may need to adjust the Activation Period.

13.  The Voice Alert Requirement applies to all PPS cards activated within the activation period immediately before the commencement date (i.e. 31 December 2024) and after the commencement date of the CoP.  To ensure effectiveness of the Voice Alert, the CA did not publicly announce the length of the Activation Period to avoid any workaround by phone scammers.  For the same reason, the Voice Alert Requirement was announced to the public shortly before its commencement.

14.  On 30 December 2024, the OFCA issued a press release to announce the Voice Alert.  The press release was reported in various news media.  The new measure was promoted through the broadcast of announcements on television, radio, and various social media or platforms.  The press release and announcements are available in both Chinese and English.  In the announcements, members of the public were:

(1)  reminded always to stay vigilant when using telecommunications services, especially when the call was originated from a newly activated PPS card but allegedly called from a reputable organisation or an authority; and

(2)  advised not to answer unknown calls causally, and not to disclose personal information or transfer money to unknown callers whose identities have not been verified to prevent losses.

15.  As relevant for present purposes, the introduction of the new measure was stated in the press release, as follows:

“Under the new measure, when local mobile and fixed services users answer calls made from newly activated local pre-paid SIM cards, mobile service providers will first play a voice alert message stating, ‘This call is made from a new pre-paid SIM card,’ before the call is connected, to raise user’s awareness of suspicious calls. The alert message service is provided by mobile service providers free of charge. Users are not required to register in advance, install any mobile apps, or make any settings to their mobile phones or fixed-line phones,” a spokesman for OFCA said.

16.  The Applicant has stated that he is a frequent user of PPS cards.  He has more than 10 valid PPS cards registered under his name.  One of them was registered after the announcement of new measure.  He has no fewer than 4 PPS cards affected by the new measure.  The Applicant said that due to his limited financial resources, he relies heavily on PPS cards as their price is relatively lower.  He also considered that the routine use of a new telephone number (i.e. by using a new PPS card) is an important tool for protection of personal privacy and could help reduce the risk of his personal data being associated with a particular telephone number.

17.  In his Reply, the Applicant has set out his views as to the various ways in which, in reality, the Voice Alert causes harm or brings difficulties to PPS card users, including the elimination of certain functionalities and features.  He made reference to media reports which support his own experience and concerns.  One particular concern is that members of the general public have or will form the perception that calls carrying the Voice Alert are related to fraudulent calls.

18.  In his intended judicial review challenge, the Applicant sought the following relief: (1) a declaration that “there is no power for the Authority [i.e. CA] to implement and regulating mobile service providers to play an auto voice alert message for calls made from newly activated local pre-paid SIM cards”, and (2) costs of the application for leave to apply for judicial review.

C.   Grounds of Review

19.  Reading the Applicant’s Form 86, his supporting Affirmation and Reply, his proposed grounds of review could be summarised as follows:

(1)  Ground 1: The Voice Alert Requirement is Wednesbury unreasonable.

(2)  Ground 2: Ultra vires and breach of the Basic Law and the Bill of Rights.

(3)  Ground 3: Breach of legitimate expectation.

20.  As can be seen below, it is logical to deal first with Ground 2, then Ground 3, and lastly Ground 1 about the overall reasonableness of the Decision.

D.   Legal Principles and Statutory Provisions

21.  Before doing so, it is helpful to set out the relevant legal principles and statutory provisions, which are relied upon by the Applicant in framing his challenge to the Decision in the present case.

22.  The freedom and privacy of communication are guaranteed by Article 30 of the Basic Law (“BL 30”):

The freedom and privacy of communication of Hong Kong residents shall be protected by law.  No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.

23.  Article 14 of Hong Kong Bill of Rights (“BOR”), as set out in Section 8 of the Hong Kong Bill of Rights Ordinance Cap 383, provides for the protection of privacy against unlawful interference:

Article 14

Protection of privacy, family, home, correspondence, honour and reputation

(1)  No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2)  Everyone has the right to the protection of the law against such interference or attacks.

24.  Sections 12 and 13 under Part 4 “Record Keeping” of the Telecommunications (Regulation of SIM Cards) Regulation Cap 106AI (“Regulation”) deal with situations where SIM card records could be provided to law enforcement officers under warrant and not under warrant.

25.  Section 14 of the Regulation empowers the CA to issue guidelines to specified licensees on a variety of matters, including registration and deregistration of a SIM card, and keeping and provision of a SIM card records, as follows:

14.  Guidelines

Without limiting section 6D of the Ordinance, the Authority may issue guidelines on how specified licensees —

(a)  collect and verify an eligible person’s specified information;

(b)  register or deregister a SIM card;

(c)  keep or provide a SIM card record under Part 4; and

(d)  carry out the transitional arrangements provided for in Part 6.

E.  Ground 2: Ultra Vires and Breach of the Basic Law and the Bill of Rights

26.  In his Form 86, the Applicant suggested that the Decision was made by the CA in excess of its power for the following reasons:

(1)  A proper legal basis is required for the OFCA and carriers to “justify such a nuisance [in the Applicant’s word, i.e. the Voice Alert Requirement] to users”.

(2)  The Telecommunications Ordinance Cap 106 (“TO”) and associated Regulations neither authorise the CA nor provide ground for the CA to regulate carriers to interrupt and play messages.

(3)  The right to communication is guaranteed under BL 30 and BOR 14. Hence, the CA has no lawful power to interfere with private communications in such way.  The prejudice as contained in the OFCA’s advertisements could be considered as an unlawful interference and attack to the reputation of users.

(4)  The OFCA’s new measures in fact require carriers to use PPS cards registration information for a purpose beyond legitimate use – the registration date of a PPS card is part of the SIM card record that carriers are required to keep under the Regulation.  The use of SIM card records as provided for in the Regulation is limited to provision of card records to law enforcement officers under sections 12 and 13.  Carriers have no right to use relevant records to identify whether a SIM card is newly registered and then to play the “nuisance” message.

27.  With respect, I do not accept the Applicant’s argument that the Decision is ultra vires.  On the contrary, the legal basis for implementation of the Voice Alert Requirement, as relied upon by the CA in its Initial Response, is clear for the following reasons.

28.  First, the CA is under the duties to perform its statutory functions as set out in section 4 of the CAO, having regard to matters including but not limited to “promoting competition and adoption of best practices in the communications market for the benefit of the industry and consumers”.

29.  Pursuant to Special Conditions (“SC”) 1.2(c) of the UCL, SC 12.1(c) of the SBO Licence for Class 3 (MVNO) services, and Condition 15.1(c) of CLOTS, the CA may issue a code of practice for the purpose of providing practical guidance to licensees in respect of, among other things, the protection and promotion of the interests of consumers of telecommunications goods and services, in particular that:

(1)  the CoP is issued under the above-mentioned licence conditions by the CA; and

(2)  the CoP is required to be observed and complied with by MNOs holding UCLs authorised to provide mobile services, SBO licensees, and CLOTS licensees for the offer of mobile services.

30.  Secondly, pursuant to sections 7A and 7B(7) of the TO, the CA is empowered to impose conditions on telecommunications services licensees, including compliance with codes of practice issued by the CA.  It is correct for the CA to assert that there is a clear basis for the CoP mandating the Voice Alert Requirement.

31.  In the Reply, the Applicant further expressed his grievance on the alleged extreme hardship caused by the Voice Alert to users, cast doubt on the effectiveness of the Voice Alert, and elaborated his argument against the Voice Alert Requirement, which I have taken into account, though it is not necessary to repeat them for the present purpose.  Regarding the Applicant’s assertion that the implementation of the Voice Alert Requirement by the CA goes beyond guidance and constitutes an excess in exercise of its power, I do not think that it is reasonably arguably correct, let alone constitution of any unlawful interruption to private communications.

32.  Turning to the issue of the consistency of the Voice Alert Requirement with BL 30 and BOR 14, on the facts of the present case and proper construction of these provisions, I accept the following submissions made by the CA:

(1)  Neither of these provisions is as broad as they would need to be to allow the Applicant to have an arguable case.  BL 30 solely concerns the freedom and privacy of communication, whilst BOR 14 protects a more general right to privacy.

(2)  The Voice Alert Requirement does not interfere with freedom of communication, privacy of communication, or privacy rights generally for the following reasons:

(a)  The Voice Alert message is factual in nature and lasts for three seconds only.  Calls would invariably be connected right after the end of the message.

(b)  The factual wording of the Voice Alert message (i.e. the call is made from a new PPS card) is by no means stigmatising as it does not have any implication that the caller is a scammer.  It is intended to provide an extra piece of information to the called party for better assessment on the veracity of the claim of the caller when he or she talks to the caller.

(c)  The called party should also be equally empowered to be informed of any voice or text message so that he or she is able to exercise necessary precautions and not fall prey to any scam calls.

33.  As is obvious, BL 30 and BOR 14 rights are not engaged.  With respect, I do not think that the four-step Hysan proportionality test and analysis as put forward by the Applicant could advance his case further, as it is inapplicable in the present case.

34.  As regards the side issue raised by the Applicant that carriers are required to use registration information for a purpose that does not go beyond legitimate use as contemplated by the Regulation, I accept the CA’s submission that it is only the date of card registration or activation which is used to operate the Voice Alert scheme, not the registration information provided by the user, and therefore the complaint about illegitimate use of registration information is unfounded.

35.  Ground 2 is not reasonably arguable with any realistic prospect of success.

F.  Ground 3: Legitimate Expectation

36.  The gist of the argument advanced by the Applicant under Ground 3 is that the CA should have conducted a public consultation or at least should have given a notice in advance of the implementation of the Voice Alert Requirement.  This is a complaint about a procedural legitimate expectation, which the Applicant argued arises from conspicuous unfairness.

37.  In the Reply, in addition to his emphasis on the alleged procedural legitimate expectation arising from conspicuous unfairness, the Applicant contended that there are other legitimate expectations including no retrospective effect, an opportunity for users to remove the Voice Alert, availability of a whitelisting system allowing users to update records in good faith, and provision of proper information of the Voice Alert.  He also stated that users of PPS cards have had no opportunity “to defend themselves”.

38.  On the facts of the present case and considering the materials filed by the parties and the background to the Voice Alert Requirement as a whole, there was no relevant representation that could have been expected procedurally.  I accept the following reasons provided by the CA in support of its submission that it is not reasonably arguable that the CA was required to hold a public consultation or provide any notice in advance.

39.  First, pursuant to section 6C of the TO and the relevant SCs (i.e. SC 1.3 of the UCL, SC 12.2 of the SBO licence for Class 3 (MVNO) services and Condition 15.2 of CLOTS), there is no mandatory requirement on the CA to conduct consultation prior to issuing the CoP to implement the Voice Alert Requirement.  Before issuing the CoP, the CA obtained the views of the telecommunications industry stakeholders and the police through the Working Group, and also sought the comments from the four MNOs (with a summary then issued to the industry on 24 May 2024 setting out the views and comments from MNOs on the CoP and the OFCA’s responses to the MNOs, and explaining the arrangement and rationale of the CoP).

40.  Secondly, though there is no general common law duty to consult the public, prior to exercise of its statutory power to implement the Voice Alert Requirement, appropriate steps were duly taken by the CA to collect relevant information for the purpose of answering the right questions, including the question as to the balance to be struck between interests of genuine PPS card users and protection of consumers of telecommunications services from phone deception cases.

41.  It is also not unreasonable for the CA to hold the view that public consultation would have delayed the timely imposition of the Voice Alert Requirement and possibly alerted phone scammers who may have developed a workaround for the new measure before its implementation, which would have frustrated the purpose and effectiveness of the Voice Alert Requirement.

42.  Thirdly, there was no representation of any kind that the CA would conduct any public consultation or provide notice in advance of the Voice Alert Requirement, which therefore does not give rise to any issue of a paradigm case of procedural legitimate expectation.  Also, there was no past conduct of the CA (prior to the introduction of the Voice Alert Requirement), which brought any “pressing and focused” impact on the Applicant, identified by the Applicant so that it would render the introduction of the Voice Alert Requirement without consultation or giving a notice in advance so conspicuously unfair as to amount to an abuse of process.  Absent any assurance of consultation, the Applicant’s dissatisfaction is insufficient to give rise to a legitimate expectation that the CA would consult or notify affected members of public in advance.

43.  Ground 3 is not reasonably arguable with any realistic prospect of success.

G.  Ground 1: Wednesbury unreasonableness

44.  The main plank of the Applicant’s argument under Ground 1 is that the OFCA has some illogical prejudice and bias against PPS card users by linking them to suspected scam calls, and that the fraudsters can easily switch from PPS cards to service plan SIM cards and hence the Voice Alert Requirement only harms those who are actually faithfully utilising their PPS cards.

45.  The Applicant further developed and repeated some of his arguments in the Reply, which I take into account but need not rehearse here.  Of particular note is that he emphasised that there is no sound evidence to suggest for the existence of a causal relationship between fraudsters and PPS card users.

46.  It is trite that a decision may be found to be Wednesbury unreasonable or irrational in circumstances including that the decision is so unreasonable that no reasonable authority could ever have come to it.  It is also trite that establishing irrationality is a high hurdle for a judicial review applicant to overcome.

47.  In the present case, I am of the view that the Applicant’s argument for the existence of a public law error in the Wednesbury sense does not have any merit.

48.  I accept the CA’s submission that the different treatment of PPS cards and service plan SIM cards is based on sound evidence and is justifiable, which are in summary that:

(1)  The decision to implement the Voice Alert Requirement comes from the reports of the police to the Working Group.

(2)  As SIM cards used in scams (i.e. for fraudulent purposes) are “used and disposed”, it is logical that it is primarily PPS cards which are used for fraudulent purposes due to convenience.  This analysis and reasonable expectation is supported by police information, actual investigation figures, and multiple media reports.

(3)  The Voice Alert Requirement aims to help raise the awareness of call receivers and protect individuals and society as a whole from the prevalence of fraudulent calls, which is important and also in the interest of the public.

49.  I have already dealt with the issue of irrationality in the above context as well.

50.  In short, there is no reasonably arguable Wednesbury unreasonableness in the Decision.

H.  Result

51.  On the law and principles applicable, none of the grounds of review as relied upon by the Applicant is reasonably arguable with any realistic prospect of success.

52.  The application for leave to apply for judicial review is, therefore, dismissed.

I.  Costs

53.  As to costs, in the Initial Response, the CA sought an order for costs in its favour.

54.  In his Reply, the Applicant submitted that his application for leave to apply for judicial review involves significant public interest in ensuring fair and lawful telecommunications regulation, coupled with the alleged hardship to users.

55.  As I stated in my recent decision in Xiao Xiang v The Law Society of Hong Kong [2026] HKCFI 4236 at §75, the principles applicable to the costs issue have been set out by the Court of Final Appeal in Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841.  As relevant and applicable to the present case, it was held at §17(2) that since applications for leave to apply for judicial review are, by the rules themselves, meant to proceed on an ex parte basis, the general rule should be that an unsuccessful applicant will not be ordered to pay the costs of a putative respondent or putative interested party unless there are special or unusual circumstances which justify such an award.

56.  I see some force in the CA’s submissions that, in the present case, the circumstances as might be regarded as exceptional so as to justify departure from the usual “no order as to costs” are (1) the involvement of the Putative Respondent at the leave stage at the invitation of the Court, (2) the attendance (i.e. by the filing of the Initial Response) of the Putative Respondent being of material benefit to the Court in determination of the leave application, and (3) the leave application has no merit.

57.  However, in the exercise of my discretion, I make no order as to costs.