Hksar v Uniglobe Telecom (Far East) Ltd.

Court:Court of Final Appeal (Hong Kong)
Judgement Number:FAMC17/1998
Judgment Date:10 Nov 1998
FAMC000017/1998 HKSAR v. UNIGLOBE TELECOM (FAR EAST) LTD.

FAMC000017/1998

FAMC No. 17 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 17 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 104 OF 1998)

_____________________

Between:
UNIGLOBE TELECOM (FAR EAST) LIMITED Applicant
AND
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

_____________________

Appeal Committee: Mr Justice Litton, PJ, Mr Justice Ching, PJ and Mr Justice Bokhary, PJ

Date of Hearing: 28 September and 10 November 1998

Date of Determination: 10 November 1998

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D E T E R M I N A T I O N

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Mr Justice Litton, PJ:

Introduction

1. This is the determination of the Appeal Committee.

2. The applicant was convicted in the District Court of two offences under s8 of the Telecommunication Ordinance, cap 106, the first under subsection 1(a) of maintaining a means of telecommunication without a licence and the second under subsection (1)(b) of using a radiocommunication apparatus without a licence. The applicant's subsequent application to the Court of Appeal for leave to appeal was dismissed, but on 4 August 1998 the Court of Appeal certified points of law for the Court of Final Appeal's consideration as follows:

"1. Whether a person who provides 'telecommunication services' as defined in s.2 of the Telecommunication Ordinance Cap. 106 thereby ipso facto maintains a means of telecommunication within the meaning of s.8(1)(a) of the Ordinance; and

2. Whether by engaging an independent contractor to provide a telecommunication service a person thereby maintains the means of telecommunication used by the contractor, irrespective of whether such person has knowledge of the existence or use of such means of telecommunication, and is therefore liable as a matter of strict liability for the actions of the contractor."

The trial

3. The prosecution's primary case against the applicant at trial was in summary as follows: (i) The applicant provided a telecommunication service to customers under a public non-exclusive telecommunications service licence issued under the Telecommunications Ordinance; (ii) this service enabled customers to make outgoing international telephone calls from within Hong Kong; (iii) the licence...

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