in Support of Patriotic Democratic Movements of China
Chinese
The Prosecution of Szeto Wah
Introduction | Chronology | List of persons charged
Uploaded on July 28, 2009
On November 20, 2007, Szeto Wah, Chairman of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, received a summons from the Department of Justice in Hong Kong. The summons claimed that he “knowingly transmitted messages using unlicensed communications equipment”, a criminal offense according to the Telecommunications Ordinance.
The summons related to an appearance by Szeto Wah on Citizens’ Radio in May 2007. Citizens’ Radio is a small, not-for-profit radio station in Hong Kong. In September 2005, Citizens’ Radio applied to the government of Hong Kong for a broadcasting license. The application is still pending. In the meantime, Citizens’ Radio continued to broadcast on an unused FM frequency. The government is prosecuting Citizens’ Radio for “unlicensed broadcasting” and, in addition to Szeto Wah, it has served summons to a number of others who appeared on Citizens’ Radio for the related criminal offense of “knowingly transmitting messages” on the unlicensed station. That is to say, Szeto Wah and others are being prosecuted simply for appearing on a radio program. In total, 19 people are being charged with appearing on Citizens’ Radio programs and 86 summons have been served.
The case is ongoing. While Szeto Wah has been required to appear in court on numerous occasions, each time the case has been postponed. Currently, the trial is scheduled for a date to be determined between September 28 and October 5, 2009 with a pre-trial hearing on September 7.
Hong Kong Alliance believes that the government’s prosecution of Szeto Wah represents an unwarranted infringement on his freedom of expression as guaranteed in Hong Kong’s Basic Law, its mini-constitution, and in the International Covenant of Civil and Political Rights, which is in force in Hong Kong. The government is using the Telecommunications Ordinance under which Szeto Wah is being charged to infringe his freedom of expression. As one judge has ruled in the government’s case against Citizens’ Radio, the ordinance gives the Chief Executive of Hong Kong “unfettered and unchecked power” since there is no independent decision-making body to decide on licensing applications and no definition of the scope of the Chief Executive’s powers. In fact, not only does the ordinance criminalize appearing on “unlicensed broadcasts”, it even criminalizes listening to such broadcasts. In essence, the government could prosecute anyone who listens to Citizens’ Radio.
Hong Kong Alliance demands that the government:
* immediately amend the outdated Telecommunications Ordinance,
* cease the prosecution of Szeto Wah and all others charged in connection with the Citizens’ Radio case,
* and allow citizens to use the airwaves freely to express their views.
With a population of 7 million people, Hong Kong has 12 FM radio stations, operated by only three groups-- RTHK, the government-supported broadcaster, and the for-profit Commercial Radio Hong Kong and Metro Broadcast. Hong Kong also receives 11 stations from mainland China. A total of 72 of the 100 available FM frequencies are used.
Chris Dillon, of Dillon Communications, a Hong Kong-based firm, says that in comparison, Sydney with a population of 4.1 million has 58 radio stations, Manila with 14 million people has 51, New York City with 8.2 million people has 36, and Vancouver, with 2.2 million has 32. In fact, as IT and communications commentator Victor Cheung has noted, Hong Kong now has more free television stations—16-- than radio stations.
The government’s actions have been condemned by the Hong Kong Journalists Association and by the international NGO, Reporters Without Borders. Reporters Without Borders stated, “The sole aim [of Citizens’ Radio] is to increase media pluralism in Hong Kong. The Special Administrative Region’s authorities should [instead of prosecuting Citizens’ Radio and its guests] be asking themselves how they could ensure more diversity on the airwaves….”
A chronology of the prosecution of Szeto Wah for appearing on Citizens’ Radio
2005
September, 2005
Citizens’ Radio applies to the Television and Entertainment Licensing Authority of the Hong Kong Special Administrative Region government for a licence to operate a public FM radio station. Nearly four years later, its application is still pending.
October, 2005
Citizens’ Radio notifies the Television and Entertainment Licensing Authority that its station will broadcast on FM 102.8, a frequency not reserved for any local station. Citizens’ Radio never receives a reply from the Television and Entertainment Licensing Authority.
2006
August 29, 2006
The Office of the Telecommunications Authority raids the office of Citizens’ Radio, confiscating its radio equipment and arresting a member of the station on suspicion of “possessing unlicensed radio transmitter equipment” under the Telecommunications Ordinance Cap.108, section 6 (b).
2007
May 25, 2007
The chairman of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, Mr. Szeto Wah, appears on a Citizens' Radio program about the June 4, 1989 crackdown.
November 20, 2007
Szeto Wah and five others receive a summons from the Department of Justice in connection with their May appearance on Citizens' Radio. The summons claims that in appearing on the Citizens’ Radio program, Szeto Wah knowingly transmitted messages using unlicensed communications equipment, a crime under section 23 of the Telecommunications Ordinance Cap.108.
November 26, 2007
Answering the summons, Szeto Wah and the other defendants appear in court. The Principal Magistrate adjourns the case until December 7 in response to a request by the prosecution to consolidate the charge with another related case.
December 7, 2007
A new Principal Magistrate adjourns the case again pending the outcome of a related case having to do with whether or not the prosecution of Citizens’ Radio violates the Basic Law (Hong Kong’s “mini-constitution”) and the Hong Kong Bill of Rights Ordinance; that is to say, whether or not the prosecution is unconstitutional.
2008
January 8, 2008
Magistrate Douglas Yau Tak-hong rules that section 23 of the Telecommunications Ordinance Cap.108 contravenes Article 39 of the Basic Law and is therefore, in effect, unconstitutional. Article 39 stipulates that the provisions of the International Covenant on Political and Civil Rights shall remain in force in Hong Kong. Yau rules that section 23 gives the Chief Executive “unfettered and unchecked power” since there is no independent decision-making body to decide on licensing applications and no definition of the scope of the Chief Executive’s powers. This is not in accordance with the requirement that any restrictions on the freedom of expression and speech must be precisely articulated by law, thus breaching both the Basic Law and the Bill of Rights Ordinance.
He initially dismisses the fourteen charges against Citizens' Radio convenor Tsang Kin-shing and five others. But the prosecution immediately objects to the verdict and makes an application that the above verdict be reviewed in the afternoon of the same day. The judge accepts the application and announces a suspension of his judgment until February 11, when the government will argue for the ordinance’s constitutionality. The judge apparently accepts the prosecution’s argument that the ruling in the meantime would render authorities unable to control the radio spectrum and that therefore lives might be endangered through encroachment into frequencies used by emergency services.
January 9, 2008
The Department of Justice seeks and is granted a High Court injunction to stop Citizens’ Radio from going back on the air while the government’s appeal is pending.
January 10, 2008
Six legislators, Emily Lau, Lee Cheuk-yan, Cheung Chiu-hung, Chan Wai-yip, Lee Wing-tat and Leung Kwok-hung (one of the defendants from Citizens' Radio), attend a public broadcast of Citizens’ Radio on the streets of the busy Mongkok area of Hong Kong despite the court injunction, risking arrest and prosecution, to support the civil disobedience of Citizens’ Radio and to show that they are determined to strive for the freedom to broadcast.
January 14, 2008
Szeto Wah appears in court for the third time. Magistrate Douglas Yau Tak-hong adjourns the hearing until March 3 to await the outcome of the government’s appeal in the parallel case.
January 20, 2008
Citizens' Radio announces it will stay off the air for three months. It professes the hope that the government will stop prosecuting the station and focus instead on amending the Telecommunications Ordinance.
January 21, 2008
The High Court refuses to extend the injunction barring unlicensed Citizens' Radio from broadcasting and orders a speedy hearing into the constitutionality of the Telecommunications Ordinance. Justice Michael Hartmann says there is no evidence that continued broadcasting by the station poses any danger to public safety, as the government argued in seeking the injunction.
March 3, 2008
Szeto Wah appears in court for the fourth time. The case is adjourned until July 8, pending the result of an appeal in the related case. It is later further postponed until October 15, and a few days before then, postponed again until January 15, 2009.
April 20, 2008
Szeto Wah-- along with Emily Lau, Lee Wing-tat, Wong Yuk-man, Lee Cheuk-yan, Leung Kwok-hung and Chan Wai-yip-- takes part in a live Citizens’ Radio broadcast from a pedestrian zone in south Sai Yeung Choi Street in Mongkok to demand that the government review the outdated Telecommunications Ordinance.
April 21, 2008
The enforcement unit of the Office of the Telecommunications Authority sends a letter by registered mail to Szeto Wah to request his assistance in the case of a suspected violation of the Telecommunications Ordinance on April 20. The request is ignored by Szeto Wah, who considers it harassment by the government.
May 4, 2008
Szeto Wah appears on a live Citizens’ Radio broadcast about the May 4th Movement in Times Square, Causeway Bay, Hong Kong.
May 7, 2008
The Office of the Telecommunications Authority sends a letter by registered mail to Szeto Wah to request his assistance in the case of suspected violation of Telecommunications Ordinance on May 4. The request is ignored by Szeto Wah, who considers it harassment by the government.
May 29, 2008
Szeto Wah participates in the forum, “Vindicate the 1989 democratic movement, commemorate the 19th anniversary of the June 4 Massacre” in the pedestrian zone in Great George Street, Causeway Bay.
June 30, 2008
Szeto Wah participates in the forum calling on citizens to attend the annual July 1 March in the pedestrian zone in Great George Street, Causeway Bay.
September 26, 2008
Szeto Wah and several others receive a summons for unlicensed broadcasting on April 20 and are required to appear in court at 9:30 a.m. on October 15.
October 8, 2008
The Commercial Crime Unit of the Prosecution Division of the Department of Justice notifies Szeto Wah in a written letter that all cases pending against him will be postponed to 9:30 a.m. on January 15, 2009 and will be heard together with other cases.
October 24, 2008
Szeto Wah and several others receive a summons to appear in court on January 15, 2009 for unlicensed broadcasting.
November 21, 2008
Szeto Wah and several others receive a summons to appear in court on January 15, 2009 for unlicensed broadcasting.
December 12, 2008
The Court of Final Appeal rules that Magistrate Douglas Yau Tak-hong did not have to and should not have handled the issue of whether the licensing system breached the Basic Law. It concludes that the magistrate was wrong to rule that the charges were unconstitutional and to dismiss the charges against the defendants on the basis that the licensing statutes of Telecommunications Ordinance violated the Basic Law. It rules in favor of the Department of Justice and sends the case back to the magistrate for re-trial.
December 16, 2008
Szeto Wah and several others receive a summons to appear in court on January 15, 2009 for unlicensed broadcasting.
2009
January 15, 2009
Szeto Wah appears in court for the fifth time. The case is postponed to April 15 and then to June 12 pending the outcome of Citizens’ Radio’s appeal to the Court of Final Appeal.
May 19, 2009
The Court of Final Appeal, comprised of Chief Justice Andrew Li Kwok-nang, Mr Justice Patrick Chan Siu-oi and Mr Justice Roberto Ribeiro, rejects the application of Citizens’ Radio to appeal the December 12, 2008 verdict of the Court of Appeal. The judges rule that the question of whether or not the licensing system is constitutional has no bearing on the crime of unlicensed broadcasting. They instruct the applicants to apply for judicial review in order to challenge the constitutionality of the licensing statutes of the Telecommunications Ordinance. With the ruling, Citizens’ Radio’s recourse to appeal has come to an end.
June 12, 2009
Szeto Wah appears in court for the sixth time. It is announced that many who have been charged with knowingly transmitting messages using unlicensed communications equipment will be tried together in Eastern Court. The trial date for those charged in connection with their appearance on the Citizens’ Radio programme of April 20, 2008 is scheduled for a date to be determined between September 28 and October 5 with a pre-trial hearing on September 7. Other cases are scheduled to be tried on December 14.
List of persons charged
In total, 19 persons have been charged with appearing on Citizens’ Radio programs. 86 summons have been issued.
List of persons who have been charged:
司徒華Szeto Wah (Chairman of Hong Kong Alliance in Support of Patriotic Democratic Movements of China)
李卓人Lee Cheuk-yan (legislative councilor)
劉慧卿Emily Lau Wai-hing Emily (legislative councilor)
李永達Lee Wing-tat (legislative councilor)
梁國雄Leung Kwok-hung (legislative councilor)
黃毓民Wong Yuk-man (legislative councilor)
陳偉業Albert Chan Wai-yip (legislative councilor)
曾健成Tsang Kin-shing (district councilor)
張超雄Cheung Chiu-hung (former legislative councilor)
羅堪就Lo Hom-chau
陳妙德Chan Miu-tak
林旭華Lam Yuk-wah
麥志恆 Mak Chi-hang
楊匡Yang Kuang
張錦雄Cheung Kam-hung
李偉儀Lee Wai-yee
柯華冰Ko Wah-bing
曾浚瑛Tsang Chun-ying
潘達強Poon Tat-keung
海星科技有限公司Ocean Technology Limited received four summons for “setting up and maintaining facilities” and “unlicensed operation”.
In order to support the free speech in Hong Kong, we ask for your support and signature in the “Protect Free Speech & Protest Selective Prosecution” petition: http://gopetition.com/online/15480.htm
Or you can go the following link:
http://www.alliance.org.hk/
to obtain the form, collect signatures and send it to:
Address:
8/F., Good Hope Building,
618 Nathan Road,
Mok Kok,
Kowloon
Or Fax to: (852) 27706083
Please spare the time and support Mr. Szeto Wah in his court case, by gathering at the court house at the following time and place:
Date: July 8 (Tuesday)
Time: 9:00am
Place: Sai Wan Ho Eastern Court