LegCo Paper No. CB(1)2008/95-96
(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 Tuesday, 30 July 1996 at 10:45 a.m. in Conference Room B of the Legislative Council Building

Members Present :

Members Absent :

Public Officers Attending :
Item II

Mr Geoffrey Woodhead: Principal Assistant Secretary for Economic Services
Miss Eliza YAU: Acting Principal Assistant Secretary for Broadcasting,
Culture and Sport (Broadcasting)
Mr M H AU: Acting Senior Assistant Director of Telecommunications (Regulatory)
Mr Sunny CHAN: Acting Senior Assistant Law Draftsman

Staff in Attendance :

Miss Odelia LEUNG: Chief Assistant Secretary (1)1
Mr Stephen LAM: Assistant Legal Adviser 4
Ms Connie SZE-TO: Senior Assistant Secretary (1)5

I. Election of Chairman

II. Meeting with the Administration

I. Election of Chairman

Hon Mrs Selina CHOW and Dr Hon Samuel WONG were elected Chairman and Deputy Chairman of the Bills Committee respectively.

II. Meeting with the Administration

(LegCo Paper No. CB(1)1791/95-96 and 1905/95-96)

Objects of the Bill

1. At the invitation of the Chairman, Mr Geoffrey Woodhead and Miss Eliza YAU explained that the objects of the Bill were firstly, to repeal section 13C(3)(a) of the Telecommunication Ordinance (Cap. 106) (TO) which conferred broad power on the Broadcasting Authority (BA) to impose a licence condition requiring a radio licensee to refrain from broadcasting any programme in certain circumstances; and secondly, to replace section 28 of the TO by a new provision to better reflect the intention of complying with Article 47 of the Constitution of the International Telecommunication Union (CITU) which required steps to be taken to prevent the transmission or circulation of false or deceptive distress, urgency, safety or identification signals.

2.Responding to some members query on the Administrations intention in introducing the Bill before the change of sovereignty in 1997, Miss YAU clarified that following a comprehensive review of all existing laws in Hong Kong which might have an impact on press freedom and the freedom of expression, the repeal of section 13C(3)(a) of the TO was recommended. The power conferred under this section had been criticised as excessive and could be used in an arbitrary fashion, and therefore it had an impact on press freedom or the freedom of expression, although the section did not amount to a contravention of the Bill of Rights Ordinance (BORO). Moreover, the provision was considered obsolete and unnecessary as section 13M of the TO and sections 19 and 20 of the Broadcasting Authority Ordinance (Cap. 391) (BAO) already contained provisions to deal with the control of undesirable radio programme and advertisement. She undertook to confirm in writing after the meeting whether or not section 13C(3)(a) had even been invoked.

Adam

3. On the proposed amendment to section 28 of the TO, Mr Woodhead explained that apart from amending the penalty in 1994, no major amendment had been introduced to this section since the enactment of the Ordinance in 1963. The Administration considered that the provision was too vague and too onerous and might have an impact on freedom of expression and hence should be replaced by a less restrictive provision.

4. In reply to the members enquiry on the aforesaid review of all existing laws in Hong Kong on whether they had an impact on press freedom, Miss YAU advised that the exercise had been in progress for some time and the Home Affairs Branch, which co-ordinated the review, had been reporting progress to the Panel on Information Policy from time to time.

Section 13C(3)(a)

5. Besides the proposed repeal of section 13C(3)(a), a member urged the Administration to consider amending section 13C(3)(b) to specify clearly the circumstances under which the BA might suspend a radio licence with a view to narrowing the scope of the provision in line with Governments pledge to uphold press freedom and freedom of expression.

6. In response, Miss YAU considered that the members suggested amendment might not fall within the scope of the present Bill since subsection (a) of section 13C(3) related to broadcasting of radio programmes while subsection (b) pertained to suspension of radio licence. Nevertheless, she said that the Administration would further consider this subsection but it would be useful if the member could also provide some concrete proposals. In this connection, the Chairman also requested ALA4 to provide for members information the relevant provisions in the TO stipulating the circumstances under which the BA might suspend or revoke a licence.

RCB
ALA4

7. Addressing a members concern about the possible curtailment in the regulatory power over radio programmes upon repeal of section 13C(3)(a), Miss YAU advised that the Administration could still avail itself of the powers under section 13M of the TO to apply to the Court for an order to prohibit the broadcasting of programmes which might incite hatred, result in a general breakdown in law and order, or gravely damage public health or morals. The BA could also rely upon the powers conferred by sections 19 and 20 of the BAO to regulate the standards of programmes or advertisements broadcast by a radio licensee. A member expressed the view that section 13M of the TO was a more appropriate provision than section 13C(3)(a) to deal with undesirable programmes because the regulatory power rested with the Court instead of the executive and hence, public interest and freedom of expression could be better protected.

8. As the Administration had advised that the amendments to the licence of the Hong Kong Commercial Radio Broadcasting Company Limited following its mid-term review would be completed by the end of 1996 but those for the Metro Broadcast Corporation Limited would only be effected in mid-1998, and failing that, before the end of 1998, a member was concerned that it might be unfair to Metro upon repeal of section 13C(3)(a) as its existing licence contained provisions which reflected this section. He therefore urged the Administration to expedite the review with a view to removing the relevant provisions from Metros licence to tie in with the enactment of the Bill. Some members however opined that upon repeal, section 13C(3)(a) would lapse and its legal effect would cease despite the presence of provisions in the two licences which reflected this section. A member further suggested that pending completion of the mid-term review, the Administration might consider the feasibility of confirming to the two licensees in writing that those provisions which reflected section 13C(3)(a) would cease to apply following the repeal of the section. The Administration agreed to consider members suggestions.

RCB

Section 28

9. In reply to members enquiries on whether reference had been made to relevant legislation in the United Kingdom (UK) and other countries in drawing up the proposed amendment, Mr Woodhead advised that it was up to each territory to make laws according to its own circumstances but he did not have in hand information on the provision, if any, in the UK law comparable to the existing section 28 of the TO. Mr M H AU added that the ITU did not specify the approach members should adopt but the Administration had decided that the provision of an offence under legislation was the best means to meet the obligation. He undertook to look up and provide for members reference relevant information in the UK law.

OFTA

10. Members enquired whether technical terms including "telecommunication", "distress signal", "safety signal" and "identification signal" would be defined in the Ordinance to prevent arbitrary interpretation. Some members also expressed concern that the terms "urgency signal" and "circulation" which were found in Article 47 of the CITU had not been included in the proposed amendment to section 28.

11. In response, Mr AU made the following points :

"Telecommunication" was defined in section 2 of the TO to mean "any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by visual means or by wire or radio waves or any other electromagnetic system". The definition was already very embracive.

There already existed clear and commonly adopted definitions in international telecommunication regulations for the terms "distress signal", "safety signal" and "identification signal". No ambiguity in their meaning should arise. Nevertheless, the Administration would consider whether it was necessary to define the terms in the Ordinance rather than relying on their ordinary dictionary meaning.

ESB/
OFTA

The Law Draftsman was of the view that "urgency signal" was subsumed under the category of "safety signal" and hence it was unnecessary to specify the former in the amended provision. However, the OFTA had no objection in principle to including this and would examine the proposal with the Law Draftsman. As "circulation" was construed as one form of transmission of messages, it was considered unnecessary to add this term into the proposed section 28.

12. Members noted that under the proposed amendment, it would be an offence if a person transmitted a distress, safety or identification signal "knowing it to be false; or with intent to deceive". As such, transmission of false signals out of negligence or inadvertence might not constitute an offence. A member also queried whether it was necessary to make it an offence for transmitting a message which a person "believes" to be false. Referring to Article 47 of the CITU itself which did not require proof of criminal intent on the part of the transmitter before the member state could take necessary steps, some members considered that the Administration should strike a balance between upholding the freedom of information and safeguarding the public against false messages which might cause public unrest.