Five prominent pan-democrats yesterday won their appeal against a conviction for speaking on an unlicensed radio station.
Four of the five judges on a Court of Final Appeal panel ruled in favour of lawmakers Wong Yuk-man, Emily Lau Wai-hing, Lee Cheuk-yan and Albert Chan Wai-yip, and former lawmaker Lee Wing-tat.
The pan-democrats were prosecuted after speaking as guests on a Citizens' Radio discussion in Sai Yeung Choi Street South, Mong Kok, on April 20, 2008. Chief Magistrate Tong Man convicted and fined the five in 2009 under a section of the Telecommunications Ordinance that prohibits delivering any message for transmission by an unlawful telecommunications system.
Johnny Mok SC, for the government, said during the appeal hearing that the term "delivers any message" could be applied to any person who spoke into a microphone.
But Chief Justice Geoffrey Ma Tao-li wrote in his judgment: "It seems unlikely that the legislature would have intended the criminalisation of the act of delivering a message to a piece of electronic equipment, rather than to a person."
However, the court did not address the constitutionality of the 75-year-old ordinance even though this had been challenged by the appellants.
"It will be seen that it is unnecessary for this court to deal with the constitutional issue since the appeals should be allowed on the basis that the appellants could not be convicted for the offence with which they were charged," Ma wrote.
In August last year, Court of First Instance judge Madam Justice Maggie Poon Man-kay turned down their appeal. After learning of yesterday's judgment, People Power legislator Chan said the government should make the airwaves more accessible for those who wanted to broadcast.
"Hong Kong's broadcasting policy is totally outdated, and dates back to the pre-war era," Chan said. "If you compare it with all the major cities around the world, Hong Kong is extremely backward in terms of broadcasting policy."
It should "ensure all kinds of groups, including religious, political and ethnic minority groups, can be given an opportunity to have their own radio station", he said.
Outside court, Citizens' Radio convenor Tsang Kin-shing said it was necessary for the government to issue new licences.
"Competition will lead to improvements," he said. "The airwaves are owned not only by the government and businesses, but also the public."