Telcoms law 'does not cover' radio

PUBLISHED : Friday, 22 July, 2011, 12:00am
UPDATED : Friday, 22 July, 2011, 12:00am


The 75-year-old Telecommunication Ordinance restricts freedom of speech and should not have been used to convict six Citizens' Radio activists in 2009, the Court of Appeal heard yesterday.

Martin Lee Chu-ming SC, representing four of the six activists, said section 23 of the ordinance banned anyone from delivering any messages using an unlicensed method of telecommunication.

But Lee argued that 'deliver' meant 'hand over' and therefore did not fit the context of a radio broadcast, such as the one for which the activists were convicted, whereby messages were sent through the airwaves by speaking in front of a microphone. He said the ordinance had been enacted in 1936 to address communications by telegram.

Lee said it was wrong for the prosecution in the 2009 case to interpret the ordinance as embracing 'all means of communication'.

He also argued that the ordinance was unconstitutional, as it limited freedom of expression. Freedom of speech is guaranteed by the Basic Law, the city's mini-constitution.

Lee represents the late Szeto Wah, who died in January this year, and three lawmakers, Emily Lau Wai-hing, Lee Wing-tat and Lee Cheuk-yan. Douglas Kwok represents the other two, legislators Wong Yuk-man and Albert Chan Wai-yip.

They sought to challenge their December 2009 conviction by Chief Magistrate Tong Man for breaching section 23 of the ordinance. Each of them was fined HK$1,000.

Johnny Mok Shiu-luen SC, for the government, rejected Lee's argument. Mok said the legislation should be interpreted in a way that kept pace with changes in technology.

'We are now living beyond the age of the telegraph,' he said. Mok said the prosecution had been justified because the activists had intended to breach the ordinance.

Court of First Instance judge Madam Justice Maggie Poon Man-kay reserved judgment.

Citizens' Radio has faced many legal problems since the unlicensed station, intended to 'open up the airwaves', first broadcast in 2005.