Citizens' Radio activists lose latest round of court battle

PUBLISHED : Saturday, 24 January, 2009, 12:00am
UPDATED : Saturday, 24 January, 2009, 12:00am

Citizens' Radio activists vowed to appeal to the city's top court after a judge yesterday dismissed their judicial review and held that a magistrate had lawfully suspended a ruling a year ago that the radio licensing regime was unconstitutional.

Activists including legislator 'Long Hair' Leung Kwok-hung wanted the judge to quash Magistrate Douglas Yau Tak-hong's order. They argued that Mr Yau did not have the power to suspend his ruling.

The activists had been charged with making unlicensed broadcasts. They successfully challenged the constitutionality of the licensing regime that had led to the charges.

The suspension left in place the regime, which gives the chief executive the final say on radio licences, while the government sought to appeal against Mr Yau's finding. However, any charges brought during the suspension could have been challenged on the same grounds as those the activists had put forward in their successful challenge.

Yesterday, Mr Justice Anselmo Reyes ruled magistrates are empowered to suspend such rulings. He found there was a real risk of disorder if the magistrate had not suspended his ruling, which removed the legal basis for licensing broadcasts.

'Without such power to suspend,' wrote the judge, 'one can readily imagine a situation where between a magistrate's decision on the unconstitutionality of a law and the hearing of an appeal against that decision, persons take it upon themselves to contravene the law held to be unconstitutional.

'Much unfairness, injustice and possibly chaos might then ensue, especially where subsequently a higher court holds that the magistrate was wrong in his determination of unconstitutionality.'

Mr Yau found the licensing regime violated Basic Law principles of free speech by granting the chief executive 'unfettered and unchecked' power to decide who should be granted a licence, and dismissed charges against the activists.

The defendants, station operator Ocean Technology, Tsang Kin-shing, Chan Miu-tak, Poon Tat-keung, Yang Kuang and Leung are seeking leave to appeal against the Court of Appeal's decision to reinstate the charges.