Citizens' radio verdicts upheld

PUBLISHED : Friday, 12 August, 2011, 12:00am
UPDATED : Friday, 12 August, 2011, 12:00am


Six Citizens' Radio activists and a lawmaker have been dealt another blow in their attempt to quash their conviction under the Telecommunications Ordinance.

Court of First Instance judge Madam Justice Maggie Poon Man-kay yesterday turned down appeals by the late Szeto Wah, who died in January, and five lawmakers - Emily Lau Wai-hing, Lee Wing-tat, Lee Cheuk-yan, Wong Yuk-man and Albert Chan Wai-yip - who challenged the constitutionality of the law.

They argued that section 23 of the law banned anyone from delivering any messages by using an unlicensed method of telecommunication.

In her written judgment, Poon said it was not disputed that the offence under section 23 restricted the right to freedom of expression, but the issue was whether the restriction was justifiable.

She found that the law banned only certain modes of communication, such as illegal broadcasting, but did not interfere with the freedom to express the same message by lawful methods.

The judge said the law would not catch passers-by who did not know the radio station was unlicensed or those who had no intention of delivering a message by an unlicensed means of telecommunication while being interviewed by a programme host on the street.

She said the offence under the law was 'a permissible fetter' to the right to freedom of expression, and was 'rationally connected to the legitimate aim'.

She agreed with Chief Magistrate Tong Man in considering that the law did not attract any prison term but was punishable only by a fine of up to HK$50,000.

Lau and the activists were challenging their December 2009 conviction by Tong for breaching section 23 of the ordinance. Each was fined HK$1,000.

In the appeal heard on July 21, Martin Lee Chu-ming SC, representing four of the six activists, had argued that 'deliver' meant 'hand over' and therefore did not fit the context of a radio broadcast. He said the law had been enacted in 1936 to address communications by telegram.

However, Johnny Mok Shiu-luen SC, for the government, said the legislation should be interpreted in a way that kept pace with technological changes.