HKSAR v. SZETO WAH AND OTHERS

HCMA164/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 164 OF 2011

(ON APPEAL FROM ESS NOS. 34781-34785 and 34787 OF 2008)

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BETWEEN

HKSAR Respondent

and

(D3) SZETO WAH (司徒華) 1st Appellant
(D4) WONG YUK MAN (黃毓民) 2nd Appellant
(D5) LAU WAI HING EMILY (劉慧卿) 3rd Appellant
(D6) LEE WING TAT (李永達) 4th Appellant
(D7) LEE CHEUK YAN (李卓仁) 5th Appellant
(D9) CHAN WAI YIP ALBERT (陳偉業) 6th Appellant
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Before : Hon M. Poon J in Court

Date of Hearing : 2 September 2011

Date of Determination : 2 September 2011

Date of Reasons for Determination : 9 September 2011

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REASONS FOR DETERMINATION

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1. This application arises from an appeal against the decision of a magistrate, to which I have dismissed on 11 August 2011. Noticesof Motion were filed on 15 and 18 August 2011.

2. Background and facts of the case are laid out in full in my judgment which I am not going to repeat or recite.

3. According to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 :

“(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the casemay be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and graveinjustice has been done.”

4. The point of law stated to be certified is as follows :

“(1) Does the class three offence under Section 23 of the Telecommunications Ordinance, Cap. 106 (‘the Ordinance’), namely, ‘any person who, knowing or having reason to believe that a means of telecommunicationsis being maintained in contravention of this Ordinance, …delivers any message for transmission by such means of telecommunications…’,apply to a person who participates in a programme which he/she knows/has reason to believe would be broadcast (live) by an unlicensedradio station?

(2) Is ‘the class 3 offence’ under section 23 of the Ordinance constitutional?”

5. I decline to let the appellants raise the first point of law in the appeal. Reasons were given in my judgment. The second issuehas also been dealt with.

6. However, since the present case involves a constitutionality issue, I agree that these points of law are of great and general importance. I grant section 32 certificate to the Court of Final Appeal certifying the above two points.

7. Pursuant to section 120 of the Magistrates Ordinance, Cap. 227, costs orders against the unsuccessful applicants are entirely within the discretion of the Court on a section 105 appeal. It was submitted by the appellants that this is a test case on the constitutionality of the Class 3 Offence, without thecase stated appeal against the ruling of the magistrate there would not have been precedent for other magistrates, and that boththe applicants as well as the respondent need this Case Stated to clarify definitive issues. All of these are not grounds for notmaking a costs order against the applicants. I refuse to set aside the costs order and order it to be made absolute.

(M. Poon)
Judge of the Court of First Instance
High Court

Mr Ira Lui, SPP of Department of Justice, for HKSAR

Mr Martin Lee, SC leading Miss Charleen Tong, instructed by Messrs Ho, Tse, Wai & Partners, for the 1st, 3rd, 4th and 5th Appellants

Mr Martin Lee, SC leading Mr Lee Siu Him, instructed by Messrs JCC Cheung & Co., for the 2nd and 6th Appellants