Magistrate Douglas Yau Tak-hong at the Eastern Magistracy had at first dismissed the 14 charges against six activists for operating a radio station without a licence before transferring the case to February 11 to allow the prosecution to appeal to a higher court.

The six defendants, including "Long Hair" Leung Kwok-hung, celebrated their short-lived victory outside the court, saying it was a sign the rule of law still existed in Hong Kong - before being brought back to Earth by the stay of judgment.

In his initial ruling, Yau said the Telecommunication Ordinance was unconstitutional and in breach of both the Basic Law and the Bill of Rights. He said the decision-making body - in this case, the Broadcasting Authority - should be independent of the government.

Since the makeup of the Broadcasting Authority is controlled by the chief executive and since Citizens' Radio is known to be associated with political activists, there is the possibility and suspicion that the political views of Citizens' Radio was an "unspoken reason" why its application for a broadcasting licence was rejected.

He said the scope of the discretion to grant a license is not defined in the licensing regime.

However, after consulting the Department of Justice, the prosecution asked the court to stay the dismissal.

It argued the ruling might create an immediate vacuum period for telecommunications, and that judgements related to constitutionality should be made in higher courts.

Yau granted the request and adjourned the trial to February 11 to allow the prosecution to appeal to a higher court.

Civic Party lawmaker Audrey Eu Yuet-mee, a barrister, said the magistrate has the power to review his own decision before an appeal.

Citizens' Radio founder Tsang Kin- shing said he was dissatisfied with the stay of judgment. He said this shows the government will only accept court decisions it wants.

Tsang also insisted radio operations will resume on Thursday regardless of the stay.

Democratic Party chairman Albert Ho Chun-yan, a solicitor, said the government needs to contemplate the ramifications of the judgment.

Eu said if the decision were upheld by a higher court, it could lead to a review of the present policy.

"The ruling highlights the unreasonable stance taken by the government over this issue," Eu said.

"Licensing and the use of the airwaves have been unreasonably monopolized and have not been used in the interests of the general public."

The Legislative Council panel on information technology and broadcasting will meet on February 19 to discuss the ordinance and the use of radio communications apparatus for broadcasting.