A judge yesterday refused to issue an injunction barring unlicensed Citizens' Radio from broadcasting and ordered a speedy hearing into the constitutionality of the broadcast licensing law.
Mr Justice Michael Hartmann, of the Court of First Instance, said there was no evidence that continued broadcasting by the maverick station posed any danger to public safety, as the government had claimed in seeking the injunction.
The ruling came three days after Mr Justice Hartmann refused to continue a temporary injunction issued on January 10 by another judge, Barnabas Fung Wah.
Citizens' Radio activists Tsang Kin-shing and Leung Kwok-hung welcomed the judgment as a victory.
The next step is the hearing of an appeal by the government against a magistrate's ruling that parts of the Telecommunications Ordinance breach freedom of expression provisions in the Basic Law and the Bill of Rights.
Douglas Yau Tak-hong made the ruling on January 8, dismissing charges of unlicensed broadcasting against Mr Tsang, Mr Leung and others, but suspended it pending the government's appeal.
Yesterday, Mr Justice Hartmann said the government's application for an injunction was unusual and exceptional because, while unlicensed broadcasting was a criminal offence, the secretary for justice had invoked the assistance of the civil courts.
'In my judgment, the most pressing issue in this application is not compliance with the law, for the law itself is in doubt,' he said. 'The most pressing issue, it seems to me, is whether the continued broadcasts undermine the public right to have a radio spectrum managed in a way that ensures the safety and well-being of the community.'
He did not accept that the broadcasts had been made in persistent and open defiance of the law.
'The defendants have not once been convicted of making unlicensed broadcasts ... their methods may make some people uncomfortable but it must be accepted that, right or wrong, they see themselves as acting to protect certain fundamental freedoms,' he said.
'It is important in the public interest that the constitutional issue ... be determined without delay. There must be an expedited hearing.'
The Department of Justice said it would press on with contempt of court proceedings against the activists for going back on the air in defiance of the earlier injunction.
Mr Justice Hartmann said his ruling did not protect them from this because, 'unless the integrity of our judicial system is honoured, this court will be unable to afford the very protection that the defendants themselves have sought from it'.