LegCo Paper No. CB(1)2094/95-96
(These minutes have been seen by the Administration)
Ref : CB1/BC/39/95/2

Bills Committee on Telecommunication (Amendment) Bill 1996

Minutes of Meeting held on Monday, 9 September 1996 at 2:30 p.m. in Conference Room B of the Legislative Council Building

Members Present :
    Hon Mrs Selina CHOW, OBE, JP (Chairman)
    Hon Mrs Miriam LAU Kin-yee, OBE, JP
    Hon CHAN Kam-lam
    Hon Ambrose LAU Hon-chuen, JP
    Hon NGAN Kam-chuen
    Hon Lawrence YUM Sin-ling
Members Absent :
    Dr Hon Samuel WONG Ping-wai, MBE, FEng, JP (Deputy Chairman)
    Hon Emily LAU Wai-hing
    Hon Andrew CHENG Kar-foo
    Dr Hon LAW Cheung-kwok
    Hon SIN Chung-kai
    Hon Mrs Elizabeth WONG, CBE, ISO, JP
Public Officers Attending :
    Mr Geoffrey Woodhead
    Principal Assistant Secretary for Economic Services
    Mr Peter Bourton
    Principal Assistant Secretary for Broadcasting, Culture and Sport (Broadcasting)
    Mr K S WONG
    Assistant Director of Telecommunications
    Mr Anthony Watson-Brown
    Senior Assistant Law Draftsman
Staff in Attendance :
    Miss Polly YEUNG
    CAS(1)3
    Mr Stephen LAM
    ALA4
    Ms Connie SZE-TO
    SAS(1)5

I. Confirmation of minutes of previous meeting

(LegCo Paper No. CB(1)2008/95-96)

1.The minutes of the Bills Committee meeting held on 30 July 1996 were confirmed.

II. Matters arising

(LegCo Paper No. CB(1)2015/95-96, Chinese translation at CB(1)2037/95-96)

2. The Chairman informed members that the Administration’s reply to various points raised by members at the last meeting had been circulated vide LegCo Paper No. CB(1)2015/95-96 prior to the meeting.

III. Discussion on the Bill

(LegCo Paper No. CB(1)2015/95-96 and 2037/95-96)

3. Members went through the Administration’s paper and their deliberations were summarised below.

Section 13C(3)(a)

4. Members noted that section 13C(3)(a) of the Telecommunication Ordinance (TO) had never been invoked since its enactment.

5. In response to a member’s enquiry on the purpose of repealing this section, Mr Peter Bourton explained that the basic intention was to remove the broad power conferred on the Broadcasting Authority (BA) to impose a licence condition requiring a radio licensee to refrain from broadcasting certain programmes. This power had been criticised as excessive and therefore had an impact on press freedom or the freedom of expression.

6. The Administration confirmed that even if section 13C(3)(a) was repealed, paragraph 27 of the existing licences of the Hong Kong Commercial Radio Broadcasting Company Limited (CRHK) and Metro Broadcast Corporation Limited (Metro) which reflected this section would still be legally in force as a licence condition. The licence of CRHK was expected to be renewed soon following its mid-term review and paragraph 27 would be duly deleted from the new licence subject to the enactment of the Bill.

7. In the case of Metro, Mr Bourton reported that the Administration had discussed with the company and the latter welcomed the early deletion of the paragraph from its licence upon repeal of section 13C(3)(a). He added that it was not practicable to advance Metro’s mid-term review which involved extensive public consultation by the BA and much preparation work. However, subject to the advice of the BA, the Administration was prepared to recommend to the Governor in Council the deletion of the said paragraph from Metro’s existing licence in advance of the mid-term review. He expected that it should be possible to amend Metro’s licence within the next few months. Members had no objection to the Administration’s proposed arrangement for Metro’s licence.

8. A member remained concerned about the possible curtailment in regulatory power over radio programmes upon repeal of this section despite the assurances given by the Administration earlier on. He also enquired about comparable legislation in the United Kingdom (UK) on the broadcasting of radio programmes and the compatibility of these powers with the obligations to guarantee freedom of expression under the International Covenant on Civil and Political Rights (ICCPR).

9. In answer to a member’s question, Mr Bourton explained that the proposed removal of the powers of pre-censorship under section 13C(3)(a) would place the emphasis on self-regulation by the licensee. If the Administration reasonably believed that the broadcasting of any programme would contravene the provisions of section 13M(1), the Chief Secretary might apply for a High Court Order to prohibit the programme. The merit of section 13M over section 13C(3)(a) was that the regulatory power to control undesirable radio programmes rested with the Court instead of the Executive. Sections 19 and 20 of the Broadcasting Authority Ordinance conferred power on the BA to regulate the standards of radio programmes and advertisements by issuing Codes of Practice and directions in writing. The Chairman also expressed the view that public interest and freedom of expression might be better protected under section 13M as the criteria for ordering the prohibition of certain programmes were specified in section 13M(1).

10. As regards reference to comparable UK legislation, Mr Bourton said that while the Administration could seek to provide the information for members’ reference, it should be noted that UK laws had played no part in the policy consideration underlying the existing section 13C(3)(a).

11. In this connection, the Chairman supplemented that in line with the Government’s pledge to uphold press freedom and freedom of expression, section 36 of the Television Ordinance (Cap. 52), which conferred a similar power on the BA in respect of television licensees, had been repealed in 1993. While Hong Kong laws should be made according to local needs and circumstances, she opined that it would be useful if information on comparable broadcasting legislation in the UK, in particular how these laws tied in with the ICCPR with regard to freedom of expression, would be provided for members’ reference. A further meeting would be convened to discuss the issue if members so wished after perusing the information.

12. Upon the Chairman’s request, Mr Bourton agreed to check with the Attorney General’s Chambers (AGC) on whether the required information was available, failing which, he would seek assistance from the UK Administration in obtaining the information. He undertook to advise the Committee of the progress in about a week’s time.

(Post-meeting note : Mr Bourton wrote in on 10 September 1996 advising that the required information was not available from the AGC and that he had written to the UK Administration for relevant information. The latter had been urged to reply as soon as possible.)BCSB

Section 13C(3)(b)

13. The Chairman recalled that Hon Andrew CHENG had suggested at the last meeting to take the opportunity to amend section 13C(3)(b) as well to specify clearly the circumstances under which the BA might suspend a radio licence. However, in its written reply, the Administration had not indicated any plan to stipulate the circumstances in the Ordinance.

14. In reply to the Chairman’s enquiry on whether Mr CHENG’s proposal would fall within the scope of the present Bill, ALA4 advised that the President of the Legislative Council had the ultimate authority in deciding whether any proposed amendment was relevant to the subject matter of the Bill. He was prepared to discuss with Mr CHENG his proposed amendment if he decided to raise it.

15. The meeting noted that the proposal to amend section 13C(3)(b) might raise other important issues and was doubtfully within the scope of the present Bill. After discussion, members agreed to the following options suggested by the Chairman:

  1. It would be up to individual member(s) to propose amendment to the subsection, subject to the President’s decision on its relevance to the Bill;
  2. Should individual member(s) wish to consider the policy aspects of section 13C(3)(b), they could raise the issue at the relevant Panel(s) for discussion.

Section 28

16. Noting that the proposed section 28 was very different from section 5(a) of the Wireless Telegraphy Act 1949 (WTA) of the UK and since both provisions were intended to fulfil the obligation under Article 47 of the Constitution of the International Telecommunication Union (CITU), a member enquired on the differences between the provisions and whether reference had been made to the UK legislation in drawing up the proposed amendment.

17. In response, ALA4 commented that Article 47 of the CITU only stated member states’ obligations in very broad terms. Section 5(a) of the WTA contained very specific provisions on the context in which an offence under the Act would arise. Section 28 of the TO was relatively more general.

18. On the member’s concern about the approach adopted in drafting the proposed amendment to section 28, Mr Anthony Watson-Brown made the following points :

  1. The relevant provision in the UK statute was written in 1949. The style of law drafting there and then was significantly different from the present-day style. In drafting local legislation, it might not advisable to adopt this early style which might not necessarily be clearer.
  2. The approach in law drafting in different jurisdictions would vary according to their unique circumstances and needs. It was considered that both the proposed amendment to section 28 of the TO and the existing section 5(a) of the WTA would fulfil the obligations under Article 47 of the CITU.

19. Regarding some members’ suggestion to include the term "urgency signal", which was found in Article 47 of the CITU, in the proposed amendment to section 28, Mr Watson-Brown advised as follows:

  1. Both the Administration and the Law Draftsman were of the view that "urgency signal" would fall within the phrase "distress, safety or identification signal" in the proposed amendment and hence, although it was in order to add the word "urgency", this was considered unnecessary.
  2. Very often, it was not practicable to replicate an international treaty, such as the CITU, into domestic legislation. The proposed section 28 was already very clear and concise in conveying the essence of Article 47 of the CITU.

20. Summing up this point, the Chairman reiterated members’ view that in order to adhere closely to the wording of Article 47 of the CITU, the word "urgency" should be added. Mr Watson-Brown agreed to draw up the necessary amendment after taking instruction from the policy branch.AGC

21. A member expressed concern about the narrow scope of the proposed amendment making it an offence only when a person transmitted a distress, safety or identification signal "knowing it to be false; or with intent to deceive". She maintained the view that it was necessary to include an additional limb of "believing it to be false" to make section 28 enforceable on transmission of false signals out of negligence or inadvertence. Noting that Article 47 of the CITU itself did not specify the proof of criminal intent, another member suggested the Legal Service Division to advise in writing the implications and appropriateness or otherwise of expanding the scope of this section as proposed by the member.ALA4

(Post-meeting note: The Administration has subsequently agreed to include the additional limb of "or believing it to be false" into section 28. The Chairman has advised that it will suffice to prepare a note outlining the differences between "knowing" and "believing" it to be false for members’ general information.)

22. Responding to members’ views, Mr Watson-Brown clarified as follows :

  1. The two limbs of "knowing it to be false" and "with the intent to deceive" were complementary to each other and under normal circumstances, should be able to cover all scenarios giving rise to an offence under this section.
  2. On the member’s concern that the amended provision would be unenforceable in cases where the transmitter only "believed" the signal was false, the view taken was that if the transmitter, without the knowledge that the signal transmitted was false but believed it to be true and had not made reasonable effort to verify, an intent to deceive might be inferred if the case was serious. Hence, the amended section 28 as proposed by the Administration would still be enforceable under such circumstances.

23. At the request of the Chairman, Mr Watson-Brown agreed to consider members’ views and advise the Committee in writing as soon as possible on the implications and appropriateness or otherwise of including the proposed additional limb in the amendment. If the Administration was agreeable to the member’s proposal, it might propose a Committee Stage Amendment direct in order to save time. Members agreed to the Administration’s proposed arrangement.AGC

(Post-meeting note: The Administration has agreed to add "or believing it to be false" after confirming with the Prosecutions Division of the AGC that the said amendment is in order.)

24. Noting from paragraphs 8.1 and 8.2 of the Administration’s paper that key terms in the Ordinance should have the same meaning ascribed by the CITU and that the word "signal" had a very wide meaning which included "messages", members concurred with the Administration that it was not necessary to define "messages".

25. The meeting ended at 4:00 p.m.
LegCo Secretariat
23 September 1996

Last Updated on 11 December 1998