HKSAR v. SZETO WAH AND OTHERS

HKSAR v. SZETO WAH AND OTHERS

The Court held that s.23 Class 3 offence is a prescribed, legitimate and proportionate restriction on freedom of expression: it is rationally connected to preventing chaos and interference in spectrum use and is no more than necessary given the mens rea requirements and limited maximum fine; therefore the Chief Magistrate did not err in finding s.23 constitutional.

Citation
HKSAR v. SZETO WAH AND OTHERS
Parties
Respondent: HKSAR; Appellants: 1st, 3rd, 4th and 5th Appellants; Appellants: 2nd and 6th Appellants
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 August 2011
Case Number
HCMA164/2011
Procedural Posture
Magistracy Appeal (case Stated) / Hearing and Judgment in Court of First Instance (appellate Jurisdiction)
Outcome
Appeal dismissed; Chief Magistrate's ruling that s.23 Class 3 offence is not unconstitutional upheld
Legal Topics
Freedom of Expression, Proportionality Test, Licensing and Spectrum Regulation, Section 23 Telecommunications Ordinance
Source Language
EN
Constitutional Law Telecommunications Law Criminal Law Administrative Law Freedom of Expression Proportionality Test Licensing and Spectrum Regulation Section 23 Telecommunications Ordinance

Case Brief

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Parties

HKSAR

Respondent

1st, 3rd, 4th and 5th Appellants

Appellants

2nd and 6th Appellants

Appellants

Procedural Posture

Magistracy Appeal (case Stated) / Hearing and Judgment in Court of First Instance (appellate Jurisdiction)

Legal Issues

  1. 1 Whether Class 3 offence under s.23 of the Telecommunications Ordinance infringes the right to freedom of expression under Art 16 HKBOR and Art 27 Basic Law
  2. 2 Whether the restriction is prescribed by law, pursues a legitimate aim, is rationally connected to that aim and is no more than necessary (proportionality)
  3. 3 Whether s.23 is redundant or unnecessary given s.8 and lack of prosecutions historically

Ratio Decidendi

The Court held that s.23 Class 3 offence is a prescribed, legitimate and proportionate restriction on freedom of expression: it is rationally connected to preventing chaos and interference in spectrum use and is no more than necessary given the mens rea requirements and limited maximum fine; therefore the Chief Magistrate did not err in finding s.23 constitutional.

Court Disposition

Appeal dismissed; Chief Magistrate's ruling that s.23 Class 3 offence is not unconstitutional upheld

Orders

  • Appeal dismissed and Chief Magistrate's decision upheld that the Class 3 offence under s.23 is constitutional
  • Application to add additional question refused as fact sensitive and procedurally out of scope