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Following is a question by the Hon Cheung Man-kwong and a reply by the Secretary for Commerce and Economic Development, Mr Frederick Ma, in the Legislative Council today (December 12):
Question:
Under section 23 of the Telecommunications Ordinance (TO), any person who, knowing or having reason to believe that a means of telecommunications is being maintained in contravention of the Ordinance, transmits or receives any message by such means of telecommunications shall be guilty of an offence. In this connection, will the Government inform this Council:
(a) since July 1, 1997, of the annual number of cases in which the persons involved were prosecuted for attending radio broadcast programmes other than those broadcast by the existing three licensed radio stations, as well as the nature and contents of the programmes involved and the court judgements respectively;
(b) of the authorities' criteria in considering whether any individual person attending the above programmes should be prosecuted; whether the authorities will prosecute all participants or institute prosecutions selectively; if prosecutions are instituted selectively, of the details of the relevant criteria and decision-making process; and
(c) with the popularisation of information technology, whether the authorities have assessed if TO has restricted the public's right to express views through different channels; if the assessment results have indicated such a restriction; whether the authorities have assessed if such restriction contravenes those provisions in the Hong Kong Bill of Rights Ordinance and the Basic Law concerning the safeguard of freedom of speech; if such assessments have been made, of the results; if such assessments have not been made, the reasons for that?
Reply:
Madam President,
Before addressing the questions raised by the honourable Member, I have to state clearly the position of the Government.
First of all, the freedom of speech is the cornerstone of stability and prosperity in Hong Kong, and it is safeguarded by the Basic Law in express terms. The Government has always kept to the principle that the freedom of speech should be protected. In fact, as new forms of media have become increasingly popular, the room for the freedom of speech in Hong Kong has actually been widened. More channels are now available for the public to express their views. Nonetheless, the rule of law is another important cornerstone of our stability and prosperity, which is accepted by all Hong Kong people. When exercising the freedom of speech, members of the public have to respect and abide by the laws of Hong Kong at the same time.
The provision of radio broadcasting service through the airwaves involves the effective use of spectrum, which is a scarce public resource. In various places of the world, radio broadcasting is regulated by relevant legislation. The broadcasting licensing regime is designed to ensure orderly and responsible use of spectrum allocated to broadcasting. Illegal broadcasting will cause interference to legitimate spectrum users and hence affect both public and private telecommunications and broadcasting services.
All law enforcement agencies, including the Office of the Telecommunications Authority (OFTA) and the Department of Justice (DOJ), will act impartially in accordance with the law and there is no question of selective enforcement. As for individual cases which are under investigation or being tried in court, it is not appropriate for us to comment at this juncture.
My reply to the questions raised by the Hon Cheung Man-kwong is as follows:
(a) Under the Telecommunications Ordinance (TO), any person who, knowing or having reason to believe that a means of telecommunications is being maintained in contravention of the TO, transmits or receives any message by such means of telecommunications shall be guilty of an offence. Since July 1997, two cases involving such alleged breaches of the TO have been prosecuted. One case occurred in April 2007 which involves five accused and another case occurred in May 2007 which involves three accused. Both cases are now before the courts, and the trials have yet to begin. As judicial proceedings have commenced, it would not be appropriate for me to make any comments.
According to our records, apart from the above two cases, there are other cases of suspected breaches of the concerned provisions under the TO. On December 9, 2006, having consulted DOJ, OFTA issued a general warning to the public at large in the form of a press release, as well as a written warning to those suspected of violating the concerned provisions of the TO, explaining in detail the concerned provisions of the TO and the Government's stand on enforcement.
It is the position of the Government that irrespective of the understanding of any member of the public of the provisions concerned prior to December 9, 2006, the warning issued on that day is a specific notice to everyone that after that day, anyone found involved in illegal broadcasting is liable to prosecution upon substantiation with sufficient evidence. In accordance with this enforcement principle, OFTA will refer any cases suspected of breaching the concerned provisions of the TO or defying the concerned warning to DOJ for prosecution.
(b) As explained above, prosecution has been initiated in respect of the two cases referred by OFTA to DOJ. In reaching such decision, DOJ has applied the established prosecution policy guidelines, as contained in The Statement of Prosecution Policy and Practice (2002). Generally speaking, to initiate prosecution under the concerned provisions of the TO, DOJ has to be satisfied that there is a reasonable prospect of conviction, and that the ingredients of the offence, including that the offender has knowledge or reason to believe that the broadcast was unlawful, can be established. Both cases have led to the prosecutions of all suspects involved, including five suspects in the first case and three in the second. There is no question of a selective element in the decision to institute prosecution.
(c) With the information boom, the public may express their opinions through various channels, including new forms of media such as on-line radio and YouTube. It is the stance of the Government that the TO is consistent with the Hong Kong Bill of Rights Ordinance and the Basic Law. The TO is formulated to provide for the licensing and control of telecommunications, telecommunications services, and telecommunications apparatus and equipment.
Ends/Wednesday, December 12, 2007
Issued at HKT 12:24
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