HKSAR v. SZETO WAH AND OTHERS
The court declined to permit the appellants to raise the first point of law in the appeal, determined that the constitutionality issue was of great and general importance and granted a section 32 certificate to the Court of Final Appeal on the two stated points of law, and refused to set aside the costs order,...
Source-derived case information.
- Citation
- HKSAR v. SZETO WAH AND OTHERS
- Parties
- Respondent: HKSAR; Appellant: 1st Appellant; Appellant: 2nd Appellant; Appellant: 3rd Appellant; Appellant: 4th Appellant; Appellant: 5th Appellant; Appellant: 6th Appellant; Appellant: Szeto Wah
- Court
- Court of First Instance
- Jurisdiction
- Hong Kong
- Judgment Date
- 9 September 2011
- Case Number
- HCMA164/2011
- Procedural Posture
- Magistracy Appeal (case Stated Appeal Under Magistrates Ordinance) Criminal / Reasons for Determination (decision on S32 Certificate and Costs)
- Outcome
- Section 32 certificate granted to the Court of Final Appeal on the two stated points of law; application to raise the first point in the appeal declined; costs order against the unsuccessful applicants affirmed and made absolute.
- Legal Topics
- Section 23 Telecommunications Ordinance (class 3 Offence), Constitutionality of Statutory Offence, Certification to Court of Final Appeal Under S32, Costs on Appeal (s120 Magistrates Ordinance)
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
HKSAR
Respondent
1st Appellant
Appellant
2nd Appellant
Appellant
3rd Appellant
Appellant
4th Appellant
Appellant
5th Appellant
Appellant
6th Appellant
Appellant
Szeto Wah
Appellant
Procedural Posture
Magistracy Appeal (case Stated Appeal Under Magistrates Ordinance) Criminal / Reasons for Determination (decision on S32 Certificate and Costs)
Legal Issues
- 1 Whether section 23( Class 3 offence) of the Telecommunications Ordinance applies to a person who participates in a programme knowing or having reason to believe it would be broadcast by an unlicensed radio station
- 2 Whether the class 3 offence under section 23 of the Telecommunications Ordinance is constitutional
- 3 Whether the costs order against the unsuccessful applicants should be set aside
Ratio Decidendi
The court declined to permit the appellants to raise the first point of law in the appeal, determined that the constitutionality issue was of great and general importance and granted a section 32 certificate to the Court of Final Appeal on the two stated points of law, and refused to set aside the costs order, ordering it to be made absolute.
Court Disposition
Section 32 certificate granted to the Court of Final Appeal on the two stated points of law; application to raise the first point in the appeal declined; costs order against the unsuccessful applicants affirmed and made absolute.
Orders
- Grant section 32 certificate to the Court of Final Appeal certifying the two stated points of law
- Decline to allow the appellants to raise the first point of law in the appeal
Full Case Text
Judgment text and source record
1 paragraphs
bjbj HCMA164/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 164 OF 2011 (ON APPEAL FROM ESS NOS. 34781-34785 and 34787 OF 2008) -------------------------------- BETWEEN HKSAR Respondent and (D3) SZETO WAH( Ng8lT NgSS IPmi) ----------- Before : Hon M. Poon J in Court Date of Hearing : 2 September 2011 Date of Determination : 2 September 2011 Date of Reasons for Determination : 9 September 2011 ------------------------------------------------------------------- R E A S O N S F O R D E T E R M I N A T I O N ------------------------------------------------------------------ AUTONUMOUT This application arises from an appeal against the decision of a magistrate, to which I have dismissed on 11 August 2011. Notices of Motion were filed on 15 and 18 August 2011. AUTONUMOUT Background and facts of the case are laid out in full in my judgment which I am not going to repeat or recite. AUTONUMOUT According to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. d grave injustice has been done. AUTONUMOUT The point of law stated to be certified is as follows (1) Does the class three offence under Section 23 of the Telecommunications Ordinance, Cap. 106 ( the Ordinance ), namely, any person who, knowing or having reason to believe that a means of telecommunications is being maintained in contravention of this Ordinance, delivers any message for transmission by such means of telecommunications , apply to a person who participates in a programme which he/she knows/has reason to believe would be broadcast (live) by an unlicensed radio station? (2) Is the class 3 offence under section 23 of the Ordinance constitutional? AUTONUMOUT decline to let the appellants raise the first point of law in the appeal. Reasons were given in my judgment. The second issue has also been dealt with. AUTONUMOUT However, since the present case involves a constitutionality issue, I agree that these points of law are of great and general importance. I grant section 32 certificate to the Court of Final Appeal certifying the above two points. AUTONUMOUT Pursuant to section 120 of the Magistrates Ordinance, Cap. 227, costs orders against the unsuccessful applicants are entirely within the discretion of the Court on a section 105 appeal. It was submitted by the appellants that this is a test case on the constitutionality of the Class 3 Offence, without the case stated appeal against the ruling of the magistrate there would not have been precedent for other magistrates, and that both the applicants as well as the respondent need this Case Stated to clarify definitive issues. All of these are not grounds for not making a costs order against the applicants. I refuse to set aside the costs order and order it to be made absolute. (M. Poon) Judge of the Court of First Instance High Court Mr Ira Lui, SPP of Department of Justice, for HKSAR Mr Martin Lee, SC leading Miss Charleen Tong, instructed by Messrs Ho, Tse, Wai & Partners, for the 1st, 3rd, 4th and 5 h&}L t"(# hG*Q h&}L h&}L hRHQ hSkV h^]A h^]A hSkV hSkV hRHQ hRHQ hRHQ gdF7 Appellants Mr Martin Lee, SC leading Mr Lee Siu Him, instructed by Messrs JCC Cheung & Co., for the 2nd and 6th Appellants PAGE - PAGE A B C D E F G H I J K L M N O P Q R S T U V 1udk 1udk &`#$ H I J K L M N O P Q R S T U V "@AB [Content_Types].xml Iw}, $yi} _rels/.rels theme/theme/themeManager.xml K Y, sQ}# theme/theme/theme1.xml w toc'v )I`n 3Vq%'#q x}r :\TZaG I u3 L+M2 e\O* $*c? )6-r IqbJ#x ,AGm T[XF64 E)`# R>QD =(K& =al- 4vfa 0%M0 theme/theme/_rels/themeManager.xml.rels 5 6?$Q K(M&$R(.1 [Content_Types].xmlPK _rels/.relsPK theme/theme/themeManager.xmlPK theme/theme/theme1.xmlPK theme/theme/_rels/themeManager.xml.relsPK <?xml version="1.0" encoding="UTF-8" standalone="yes"?> <a:clrMap xmlns:a="http://schemas.openxmlformats.org/drawingml/2006/main" bg1="lt1" tx1="dk1" bg2="lt2" tx2="dk2" accent1="accent1" accent2="accent2" accent3="accent3" accent4="accent4" accent5="accent5" accent6="accent6" hlink="hlink" folHlink="folHlink"/> i$&`G I V7* QQgB k[r\ I V7 <m]] & 6" CACV Jeannie MY MokSo ABC.dot setup Microsoft Office Word Judiciary CACV Title <b:Sources SelectedStyle="\APA.XSL" StyleName="APA" xmlns:b="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" xmlns="http://schemas.openxmlformats.org/officeDocument/2006/bibliography"></b:Sources> <?xml version="1.0" encoding="UTF-8" standalone="no"?> <ds:datastoreItem ds:itemID="{C470946E-8C3B-4880-99F1-BC19A9B569F2}" xmlns:ds="http://schemas.openxmlformats.org/officeDocument/2006/customXml"><ds:schemaRefs><ds:schemaRef ds:uri="http://schemas.openxmlformats.org/officeDocument/2006/bibliography"/></ds:schemaRefs></ds:datastoreItem> Microsoft Office Word 97-2003 Document MSWordDoc Word.Document.8