Bills Committee on Broadcasting (Amendment) Bill 2003

 

Bills Committee on Broadcasting (Amendment) Bill 2003

 

1. The Bar was asked to consider the captioned Bill.

2. The Bill amends the Broadcasting Ordinance (Cap 562)
to introduce the new offence of possession or use or authorizing the possession
or use, for the purpose of, or in connection with, trade or business,
an unauthorized decoder, to introduce presumptions and defences in respect
of criminal offences in that Ordinance concerning unauthorized decoders
or decoders, to restate the enforcement powers of the Telecommunications
Authority or authorized public officers in respect of criminal offences
in that Ordinance concerning unauthorized decoders or TROS ("Television
Receive Only System") decoders, and to provide for the right on the
part of a licensee under that Ordinance to seek civil remedies for contravention
of the offence-creating provisions concerning unauthorized decoders or
TROS decoders in that Ordinance.

3. Two areas of the Bill call for substantial comment.
The first is the introduction of the new offence of possession or use
or authorizing the possession or use, for the purpose of, or in connection
with, trade or business, an unauthorized decoder (Clause 3(a)). The second
is the introduction of presumptions and defences in respect of criminal
offences in that Ordinance concerning unauthorized decoders or TROS decoders
(Clauses 3(b) and 4).

4. Clause 3(a) of the Bill seeks to replace the present
section 6(1) of the Broadcasting Ordinance, which only criminalizes the
importation, exportation, manufacturing, selling, offering for sale and
letting for hire, in the course of trade or business, of unauthorized
decoders, with a new section 6(1) that in addition criminalizes the possession
or use or authorizing the possession or use, for the purpose of, or in
connection with, trade or business, an unauthorized decoder (the proposed
section 6(1)(b)). This is an extensive expansion of criminal liability.

5. A comparison can be drawn with the amendments to the
Copyright Ordinance (Cap 528) in the Intellectual Property (Miscellaneous
Amendments) Ordinance 2000 (64 of 2000), which were in similar terms.
Those amendments were met with enormous community outcry around the time
of their commencement date and the Copyright (Suspension of Amendments)
Ordinance 2001 (Cap 568) had to be quickly enacted to suspend the operation
of the 2000 amendments. A review was conducted and following the review
the Copyright (Amendment) Bill 2003 was gazetted and is now under scrutiny
by the Legislative Council.

6. Clause 4 of the Copyright (Amendment) Bill 2003 should
be noted. The proposed section 118A of the Copyright Ordinance has omitted
the expression "in connection with S trade or business" as part
of the criminal offence of possession of an infringing copy of certain
categories of copyright work, which was the source of much of the community
outcry at the time of the attempted implementation of the 2000 amendments.
Clause 8 also provides a definition to the expression "doing any
act for the purpose of or in the course of trade or business".

7. Although the Legislative Council brief accompanying
the Bill states that the proposed section 6(1)(b) is intended to deal
with unauthorized reception of subscription television programme services
for commercial purposes, the proposed section 6(1)(b), which allows the
prosecution to show only an act "in connection with S trade or business",
appears to punish the presence or use of unauthorized decoders whenever
and wherever there is any slightest association between such presence
or use with a trade or business of a person and is arguably broader than
the mischief that the Administration indicated. The Bar observes that
this proposed provision seems to be casting the net of criminal liability
too wide.

8. The Bills Committee is recommended to examine the scope
of the proposed section 6(1)(b) with a view to tighten the scope of that
provision.

9. Clauses 3(b) and 4 of the Bill seeks to introduce two
sets of identical presumptions and defences for offences under section
6 and section 7 of the Broadcasting Ordinance respectively. The explanatory
memorandum states that the presumptions are introduced "to facilitate
proof of offences". The Legislative Council brief accompanying the
Bill describes the presumptions as Opresumption of "offence"
in respect of knowledge of, authorization for the use of, and possession
of, unauthorized decoders'. On the hand, the Legislative Council brief
contends that the proposal "is in conformity with the Basic Law,
including the provisions concerning human rights".

10. Neither the explanatory memorandum nor the Legislative
Council brief has provided the Bills Committee with justification for
the introduction of the presumptions in clauses 3(b) and 4 of the Bill,
apart from indicating that the prosecution would be eased of the normal
requirement to prove in section 6 or section 7 offences, essential elements
such as knowledge on the part of the accused that the decoder in question
is an unauthorized decoder, possession on the part of the accused of the
decoder in question, and criminal liability of an individual by virtue
of the criminal liability of the company, other bodies corporate, partnership,
or employee to which the individual is associated.

11. In other words, in a prosecution for a section 6(b)
offence in respect of an unauthorized decoder found in commercial premises,
counsel for the prosecution needs only to produce evidence satisfying
the criminal standard of proof of an unauthorized decoder having been
found in such premises to trigger the presumption of possession (in the
proposed section 6(5)) against the licensee, tenant, lessee, occupier,
person in charge or the owner of the premises. A bit of extra evidence
satisfying the criminal standard of proof to show that the possession
of the unauthorized decoder was for the purpose of, or in connection with,
trade or business (such as the finding that the unauthorized decoder was
connected to the multi-media projection system in the premises) would
trigger the presumption of knowledge on the part of, say, the person in
charge, that the decoder was an unauthorized decoder. The person in charge
would have to rebut those presumptions by putting forward evidence to
the contrary to the standard of proof of on balance of probabilities.

12. If the person in charge is found guilty of an offence
under section 6(b) and it is found that he is an employee, the employer
is also guilty of the like offence (the proposed section 6(6)) unless
the employer discharges the defence that he exercised sufficient control
over the employee or that he took all reasonable steps to prevent the
commission of the offence (the proposed section 6(7)). If the employer
happens to be a company, a body corporate or a partnership, then the directors
of the company or body corporate or the partners of the partnership are
all presumed to have done the criminal act and can be held guilty of the
like offence, unless he shows by evidence to the contrary that he did
not authorize the act to be done (the proposed section 6(4)).

13. The scope and inter-related operation of these presumptions
have ensured that the prosecution would not have to prove to the criminal
standard of the essential elements of possession and knowledge (and thus
the exercise of control over an unauthorized decoder or TROS decoder)
for offences under section 6 and section 7 of the Broadcasting Ordinance
and that criminal liability for such offences can be extended to directors,
partners or employers on the basis of the conviction of an employee. The
operation of the presumptions may have the effect of converting criminal
offences that require the proof of knowledge (and hence mens rea) into,
in effect, strict liability offences, especially in the case of directors,
partners and employers. Summary conviction of a section 6 or section 7
offence attracts a fine at level 6 and imprisonment for 2 years.

14. The presumptions once triggered with the small quantity
of uncontroversial evidence produced reverse the burden of proof into
the hands of the accused and are prima facie inconsistent with presumption
of innocence guaranteed under Art 87 of the Basic Law and Art 14(2) of
the International Covenant on Civil and Political Rights.

15. Neither the explanatory memorandum nor the Legislative
Council brief has provided the Bills Committee with proper justification
that the presumption of innocence should be reasonably limited in respect
of section 6 and section 7 offences. Rather the language used in both
the explanatory memorandum and the Legislative Council brief suggests
impunity to breaches of human rights guarantees because of the convenience
the proposed provisions provide to the enforcement agencies and the prosecution.
Such language is undesirable, to say the least.

16. The Administration is urged to provide the proper
justification required to demonstrate that the enactment of the presumptions
and defences in clauses 3(b) and 4 of the Bill would not be violative
of Art 87 of the Basic Law and Art 14(2) of the International Covenant
on Civil and Political Rights, by reference to caselaw, including Attorney
General of Hong Kong v Lee Kwong Kut [1993] AC 951 and R v Lambert [2002]
2 AC 545.

17. The Bills Committee is recommended to scrutinize clauses
3(b) and 4 with great care.

18. There are two other matters to note in the Bill. Clause
5 of the Bill not only reproduces the enforcement provisions in the present
sections 6(3) to (8) of the Broadcasting Ordinance but also introduces
a new enforcement power of arrest in the proposed section 7A(1)(b) and
the new criminal offence of obstruction of duty in the proposed 7A(6).

19. Clause 5 of the Bill also introduces the civil remedy
against those who are in breach of section 6 of the Broadcasting Ordinance
and also those who are not so in breach but for the absence of a connection
with trade or business (such as domestic viewers who possess or use an
unauthorized decoder to view a subscription television programme service
without paying a subscription). This provision does not specify a time
limit, as section 15(2) of the Broadcasting Ordinance does for the civil
remedy on competition matters. The Bills Committee may also find it useful
to explore on the rationale for extending civil remedy to those not covered
in the criminal offences in section 6.



Dated: 28 August 2003

Hong Kong Bar Association