Radio activists win right to review of magistrate's powers

PUBLISHED : Friday, 29 February, 2008, 12:00am
UPDATED : Friday, 29 February, 2008, 12:00am

Six activists fighting for the right to broadcast Citizens' Radio have succeeded in getting the Court of First Instance to review the magistrate's powers.

Mr Justice Michael Hartmann yesterday granted leave for an application for judicial review into the January 8 suspension by Magistrate Douglas Yau Tak-hong of a ruling by which he found the government's existing regime for radio licensing to be unconstitutional. Five members of Citizens' Radio were charged with establishing means for illegal broadcasts, as well as contempt of court for breaching an injunction against further broadcasts.

Mr Yau ruled that sections of the Telecommunications Ordinance breached freedom of expression provisions of the Basic Law and the Bill of Rights. He dismissed the charges against six activists of Citizens' Radio, who were charged with unlicensed broadcasting. The suspension means that the law stays in place but is still open to challenge by anyone falling afoul of it.

The suspension, and a subsequent extension until next month, were designed so the government could appeal against the ruling without throwing the existing licensing arrangements into chaos. Mr Justice Hartmann is due to begin hearing that appeal soon.

It was argued yesterday that it would also be a convenient time to review whether or not Mr Yau, or other magistrates, actually had the power to put in place a suspension.

Acting deputy director of public prosecution Kevin Zervos SC said there was a risk that if the appeal against the actual ruling was successful, then the whole issue of whether it should have been suspended would fall away.

The argument would then become an academic one with 'no practical benefit'. However, Mr Justice Hartmann ruled that the court could look at matters even if they were deemed academic.

'This is a very important issue going to the jurisdiction of magistrates,' Mr Justice Hartmann said. 'In years to come, magistrates are likely to be asked to decide on a variety of constitutional matters. We will need to know where their jurisdiction [to make certain orders] stops.'

It was therefore reasonably arguable that there might have been, as the lawyers for Citizen's Radio have suggested, an exceeding of the magistrate's jurisdiction, and it was on that basis that the judge granted leave.

Mr Justice Hartmann also suggested that it might be more expeditious to skip hearing in the Court of First Instance the appeal against the magistrate's ruling on the constitutional issue and go straight to the Court of Appeal.

'It seems that this is an issue that may affect other licensing regimes that were put in place prior to the Basic Law coming into effect,' Mr Justice Hartmann said.

It was pointed out to him that even if the appeal was fast tracked, then the judicial review into the powers of the magistrate must still take place in the Court of First Instance as that was where the action had to originate.

Mr Justice Hartmann said he would take argument on that issue in the future.