ATTORNEY GENERAL v. NG CHI PING

1996, No. 105
(Criminal)

H E A D N O T E

Cloning mobile radio telephones - Telecommunication Ordinance, Cap. 106.

(1) A mobile radio telephone is a means of telecommunication. Cloning a mobile radio telephone is establishing a means of telecommunication, which is an activity prohibited save under licence.

(2) Since cloning is wholly outside the ambit of the agreement between the operator of a telecommunication network and its customer, the possession or use by such customer of a cloned mobile radio telephone is not as a customer of the network operator. Accordingly, he is not exempted by the Telecommunication (Public Radiocommunication Service Customers) (Exemption from Licensing) Order from having to hold a licence to possess and use the apparatus for radiocommunication constituted by the cloned mobile radio telephone.

IN THE COURT OF APPEAL

1996, No. 105
(Criminal)

-------------------

----------------------

J U D G M E N T

-----------------------

Bokhary, J.A.:

1. This is an appeal by way of case stated. It concerns the practice of "cloning" mobile radio telephones.

2. The appellant is the Attorney General. The respondent was a salesman at an electronic products store in Shamshuipo.

3. On October 11 last year, the respondent was acquitted by HH Judge Sweeney in the District Court on the three charges which he faced, being the 1st, 6th and 10th charges.

4. Those three charges were drawn thus:

" 1st Charge

Statement of Offence

Conspiracy to establish and maintain a means of telecommunication without a licence, contrary to Common Law and Section 8(1)(a) of the Telecommunication Ordinance, Cap. 106.

Particulars of Offence

SHEK Kam-wing, LAM Chak-keung and NG Chi-ping, between the 1st day of July 1992 and the 10th day of August 1993, in Hong Kong, conspired together and with WONG Yan-sang to establish and maintain means of telecommunication without a licence, namely cloned mobile radio telephones.

6th Charge

Statement of Offence

Conspiracy to establish and maintain a means of telecommunication without a licence, contrary to Common Law and Section 8(1)(a) of the Telecommunication Ordinance, Cap. 106.

Particulars of Offence

NG Chi-ping, in or about March 1993 in Hong Kong, conspired with LAM Chiu-hung to establish and maintain a means of telecommunication without a licence, namely a cloned mobile radio telephone with telephone number 90352721.

10th Charge

Statement of Offence

Possession and use of apparatus for radio communication without a licence, contrary to Section 8(1)(b) of the Telecommunication Ordinance, Cap. 106.

Particulars of Offence

NG Chi-ping, on or about the 10th day of August 1993, in Hong Kong, had in his possession an apparatus for radio communication, namely a cloned mobile radio telephone using telephone number 94843164, without a licence."

5. The judge acquitted on the two conspiracy charges because he took the view that neither disclosed any offence. He took that view for the reasons which he expresses thus in the Stated Case:

"A means of telecommunication under the Ordinance is a system of telecommunication. The act of cloning a mobile radio telephone gives one access to a telecommunications system. By obtaining an [Electronic Serial Number] one is obtaining a key to enter the system. Those who establish or maintain the means of telecommunication are the network operators such as Hutchison. To provide a key to gain access to that system is not to establish the system itself. Accordingly, the act of cloning a mobile radio telephone could not be regarded as establishing or maintaining any means of telecommunication."

6. As for the possession and use charge, the judge acquitted because he took the view that the respondent had no case to answer. His reasons for taking that view are expressed thus in the Stated Case:

"The mobile radio telephone possessed by the Respondent was an apparatus for radiocommunication. He had no licence to possess the particular device. However, the Respondent was a customer of Hutchison as contemplated in the exemption contained within the Telecommunication (Public Radiocommunication Service Customers) (Exemption from Licensing) Order and he possessed the cloned telephone specified in the 10th Charge to avail himself of the service provided by Hutchison and he continued at all material times to be such a customer. He was therefore not obliged to take out a licence in respect of the apparatus, the subject of the 10th Charge."

7. Turning now to the relevant law, the first thing to look at is section 8 of the Telecommunication Ordinance, Cap. 106. Sub-sections (1) and (2) of that section read:

"(1) Save under and in accordance with a licence granted by the Governor in Council or with the appropriate licence granted by the Authority, no person shall in Hong Kong or on board any ship, aircraft or space object that is registered in Hong Kong -

(a) establish or maintain any means of telecommunication; or

(b) possess or use any apparatus for radiocommunication or any apparatus of any kind that generates and emits radio waves notwithstanding that the apparatus is not intended for radiocommunication; or

(c) deal in the course of trade or business in apparatus or material for radiocommunication or in any component part of any such apparatus or in apparatus of any kind that generates and emits radio waves whether or not the apparatus is intended, or capable of being used, for radiocommunication; or

(d) demonstrate, with a view to sale in the course of trade or business, any apparatus or material for radiocommunication.

(2) For the avoidance of doubt, it is hereby declared that the fact that the person from whom any apparatus for telecommunication is loaned, leased or hired, or the person maintaining a means of telecommunication of which other apparatus forms part or with which other apparatus is connected, is the holder of a licence granted under this Ordinance, does not exempt the person to whom the apparatus is loaned, leased or hired, or the person maintaining, possessing or using the apparatus forming part of, or connected with, such means of telecommunication, as the case may be, from the necessity to obtain such licence or licences as may be required under this Ordinance."

8. Next, it is necessary to look at how the terms "telecommunication" and "radiocommunication" are defined by the same Ordinance.

9. Section 2 defines "telecommunication" as meaning

"any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by visual means or by wire or radio waves or any other electromagnetic system".

That includes "radiocommunication" since the same section defines radiocommunication to mean:

"communication by radio waves".

10. As one sees from the charges, the prosecution says that a mobile radio telephone is a means of telecommunication as well as an apparatus for radiocommunication.

11. The judge, on the other hand, accepted the defence argument that a mobile radio telephone is not a means of telecommunication because, so the argument runs, a means of telecommunication under the Ordinance is a system of telecommunication.

12. In the present context, the word "means" is obviously being used in the sense in which it is used in the expression "by means of". And the first meaning which The New Shorter Oxford English Dictionary gives to that expression is "by the agency or instrumentality of".

13. Plainly, if an activity is carried on by the instrumentality of an apparatus, that apparatus is a means of that activity.

14. You get the following result simply by giving words their plain meaning. Once a mobile telephone is connected to a telecommunication network, it becomes an apparatus of telecommunication and therefore a means of telecommunication. So the expression "any means of telecommunication" used in section 8(1) (a) covers any apparatus of telecommunication including mobile radio telephones. And when someone connects a mobile radio telephone, whether by cloning or otherwise, to a telecommunication network, he establishes such telephone as a means of telecommunication with the meaning of section 8(1)(a).

15. Is there any reason in the present context why words are not to receive their plain meaning to yield that result?

16. In our view, there is none. The reference in subsection (2) to "the person maintaining a means of telecommunication" seems to be a reference to the network operator. And that suggests that "the means of telecommunication" referred to there is the network as a whole. But just because an apparatus forms a part of, or is connected with, a network which amounts to a means of telecommunication does not imply that such apparatus is not itself a means of telecommunication. For example, a bus service is a means of transport; and so is every bus in the fleet operated by the company providing that service. The analogy is not exact - for analogies hardly ever are - but it illustrates the point.

17. Turning now to the possession and use charge, it will be remembered that the judge took the view that the Respondent was exempted by the Telecommunication (Public Radiocommunication Service Customers) (Exemption from Licensing) Order from having to hold a licence to possess or use the cloned mobile radio telephone in question.

18. That Order exempts a person who possesses or uses any apparatus for radiocommunication "as a customer of" the holder of a public radiocommunication service licence.

19. It is the network operator who holds that licence. So it boils down to whether someone who possesses or uses a cloned mobile radio telephone does so as a customer of the network operator.

20. To answer that question, it is necessary to begin by taking a closer look at what cloning involves.

21. All mobile radio telephones are encoded with an Electronic Serial Number (called an "ESN") at the time of manufacture. Further, each unit provided by a network operator to a customer of its is assigned an additional serial number by the network operator. Such additional serial number is that unit's Mobile Identification Number (called an "MIN'). Each MIN has 10 digits, the last seven of which form the unit's telephone number.

22. A mobile radio telephone is cloned when a unit not provided by the network operator has the ESN and MIN of a unit provided by the network operator transferred to it by an electronic process. The unit to which those numbers are so transferred is the cloned unit. The cloned unit is capable of functioning in conjunction with or in place of the original unit. It is a duplicate of the original. In other words, it is a clone thereof.

23. Plainly, the cloning of mobile radio telephones is wholly outside the ambit of the agreement between the network operator in question and its customers, which agreement is along the lines which one would expect of agreements of such a nature. In those circumstances, to say that someone who possesses or uses a cloned mobile radio telephone does so as a customer of the network operator is an abuse of language. Plainly, he does not. Equally plainly therefore, he is not exempted from holding a licence for the apparatus for radiocommunication constituted by the cloned mobile radio telephone.

24. In regard to the conspiracy charges, the specific questions put to us by the judge and our answers thereto are as follows:

Q. "Did I err in law in holding that the act of cloning a mobile radio telephone could not be regarded as establishing or maintaining a means of telecommunication?"

A. Yes.

Q. "Was I wrong to acquit the Respondent on the 1st and 6th Charges?"

A. Yes. You should have proceeded to try him on both of those charges.

25. And in regard to the possession and use charge, the specific questions put to us by the judge and our answers thereto are as follows:

Q. "Did I err in law in holding that the Respondent possessed the cloned mobile radio telephone as a customer of Hutchison to avail himself of the service provided by Hutchison, that at all material times he continued to be such a customer and that therefore by virtue of the exemption referred to herein was not obliged by law to hold a licence to possess the cloned mobile radio telephone?

A. Yes.

Q. "Was I wrong to find that the Respondent had no case to answer on the 10th Charge?"

A. Yes.

26. In the result, the Attorney General's appeal is allowed; and we direct that the trial be resumed in the District Court for the judge to deal with the charges in accordance with the opinion of this Court as expressed in this judgment.