Radio activists denied appeal

PUBLISHED : Wednesday, 21 January, 2009, 12:00am
UPDATED : Wednesday, 21 January, 2009, 12:00am

The Court of Appeal yesterday refused to give Citizens' Radio activists leave to appeal to the Court of Final Appeal concerning a prosecution for unlicensed broadcasting.

Speaking outside the court yesterday, activist Tsang Kin-shing vowed to make another attempt to seek leave to appeal against a previous Court of Appeal decision to resume a prosecution for unlicensed broadcasting against him and several others at Eastern Court.

Last month, the Court of Appeal - comprising Mr Justice Geoffrey Ma Tao-li, Mr Justice Frank Stock and Mr Justice Andrew Cheung Kui-nung - set aside an earlier decision by Magistrate Douglas Yau Tak-hong, finding he erred in acquitting the activists of a charge of unlicensed broadcasting. He had ruled that the licensing regime was unconstitutional.

The Court of Appeal held that the constitutionality of the licensing regime was not the 'necessary ingredient of the offence' and the relevant offence provision was 'self-standing and lawful'.

It set aside the dismissal of the criminal charges brought under the Telecommunications Ordinance against unlicensed broadcasting by Citizens' Radio between July 2005 and October 2006. The defendants are Ocean Technology, Tsang, Chan Miu-tak, Poon Tat-keung, Yang Kuang and lawmaker 'Long Hair' Leung Kwok-hung.

They began the process to file an appeal to the Court of Final Appeal early this month.

Yesterday, the activists sought leave to take their case to the top court, arguing that the relevant offence provision was not free-standing because the licence required was applied under the existing licensing scheme. They also wanted the Court of Final Appeal to rule on the constitutionality of the radio licensing scheme.

Refusing to grant leave, Mr Justice Stock said the court found the licensing scheme's offence provision was constitutional and it was not necessary to consider the legality of the whole licensing regime, as that was irrelevant to the provision under which they were charged.

On January 8 last year, Mr Yau ruled the radio licensing regime was unconstitutional but suspended his ruling on the same day he made it, pending the outcome of an appeal the prosecution said it would make.

Mr Justice Anselmo Reyes will hear a judicial review launched by the radio activists, challenging Mr Yau's power to suspend his ruling.