Oriental Daily Publisher Ltd v Commissioner For Television And Entertainment Licensing Authority

Cited as:(1997-1998) 1 HKCFAR 279, [1998] 2 HKLRD 857
Court:Court of Final Appeal (Hong Kong)
Judgement Number:FACC1/1998
Judgment Date:25 Nov 1998
FACC000001/1998 ORIENTAL DAILY PUBLISHER LTD v. COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING AUTHORITY

FACC000001/1998

FACC No. 1 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 1998 (CRIMINAL)

(ON APPEAL FROM CACV No. 66 OF 1997)

_____________________

Between:

ORIENTAL DAILY PUBLISHER LIMITED Appellant
AND
COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING AUTHORITY Respondent

_____________________

Court: Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr Justice Bokhary PJ and Sir Anthony Mason NPJ

Date of Hearing: 11 November 1998

Date of Judgment: 25 November 1998

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J U D G M E N T

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Chief Justice Li:

1. This appeal concerns the duty to give reasons. The Court of Appeal held that the Obscene Articles Tribunal ("the Tribunal") is under a duty to give reasons in deciding whether an article is obscene or indecent. This ruling accords with the trend in public law towards greater openness in decision making. It has not been challenged by the respondent and is no longer in issue.

2. Given that the Tribunal is under a duty to give reasons, the issue in this appeal is whether it properly discharged the duty in this case. The respondent argues that it has and was successful in the courts below. This is challenged by the appellant.

The Control of Obscene and Indecent Articles Ordinance, Cap. 390 ("the Ordinance")

3. The Ordinance, by controlling obscene and indecent articles, restricts the freedom of speech in the interest of the community as a whole.

4. I should first set out the statutory scheme.

5. The Tribunal is entrusted by the legislation with the power to decide what is obscene or indecent. For the purposes of the Ordinance, "a thing is obscene if by reason of obscenity it is not suitable to be published to any person and a thing is indecent if by reason of indecency it is not suitable to be published to a juvenile", that is persons under the age of 18. "Obscenity" and "indecency" include violence depravity and repulsiveness. See sections 2(2) and 2(3). The statute (Part IV) provides for criminal sanctions including offences for publishing obscene articles and publishing indecent articles to juveniles without the statutory safeguards such as covers, sealed opaque wrappers and warning notices.

6. In deciding the question of obscenity and indecency, section 10 obliges the Tribunal to have regard to certain matters. This section, which is important for this appeal, provides:

"... a Tribunal shall have regard to -

(a) standards of morality, decency and propriety that are generally accepted by reasonable members of the community, and in relation thereto may, in the case of an article, have regard to any decision of a censor under section 10 of the Film Censorship Ordinance (Cap. 392) in respect of a film within the meaning of section 2(1) of that Ordinance;

(b) the dominant effect of an article or of matter as a whole;

(c) in the case of an article, the persons or class of persons, or age groups of persons, to or amongst whom the article is, or is intended or is likely to be, published;

(d) in the case of matter publicly displayed, the location where the matter is or is to be publicly displayed and the persons or class of persons, or age groups of persons likely to view such matter; and

(e) whether the article or matter has an honest purpose or whether its content is merely camouflage designed to render acceptable any part of it."

Expert opinion evidence is admissible in relation to any matter to which the Tribunal must or may have regard. See section 10(2).

7. The Tribunal's jurisdiction arises in two situations. First, articles may be submitted to the Tribunal for classification as to whether it is obscene, indecent or neither. See sections 8(2) and Part III. This in effect enables those concerned to obtain a prior ruling. The Tribunal may initially make an interim classification. At the applicant's request, the Tribunal would review this at a full hearing. This is a public hearing and notice has to be advertised in newspapers. See sections 15 and 16.

8. Secondly, where in any civil or criminal proceedings, a question arises as to whether an article is obscene or indecent, the judge or magistrate must refer it to the Tribunal which has exclusive jurisdiction. Similarly, questions as to whether any matter publicly displayed is indecent and whether the defence of public good is proved have to be referred to the Tribunal. See sections 8(1) and 29. That defence is provided for in section 28:

" It shall be a defence to a charge under this Part [IV] in respect of the publication of an article or the public display of matter if that publication or display, as the case may be, is found by a Tribunal to have been intended for the public good on the ground that such publication or display was in the interests of science, literature, art or learning, or any other object of general concern."

Expert opinion evidence is admissible in relation to such defence. See section 8(3).

9. The Tribunal consists of a presiding magistrate and two or more adjudicators selected from the panel of adjudicators appointed by the Chief Justice. Decisions are made by majority and in the event of equal division by the presiding magistrate. He shall decide any point of law. See section 7. The same privileges and immunities as those in court proceedings apply to the Tribunal. See section 9. When dealing with classification, it may determine its own procedure and has similar powers to a court to compel the attendance of witnesses and to examine them on oath. See section 11(b). When dealing with questions referred by a court, it has the same powers as a magistrate. See section 11(a).

10. There are two express provisions on the subject of reasons. First, section 7(3) provides:

" Any point of law arising during any proceedings before a Tribunal shall be determined by the presiding magistrate who shall give reasons therefor in writing."

Secondly, section 14(3)(a) provides that subject to section 7(3), the Tribunal shall not be required to give any reasons for any interim classification.

11. There is a right of appeal against a decision on a point of law to the Court of First Instance. See section 30(1). Decisions of the Tribunal are of course subject to judicial review.

The articles in question

12. The appellant is the publisher of the Oriental Daily News ("the newspaper") a well known Chinese newspaper with a very wide circulation.

13. On 29 June 1996, it published a feature on page A3 of the newspaper. It was positioned at the bottom right and measured about 10 cm x 15 cm (4" x 6"), occupying about 7 % of the page. The page bore the heading "International News" and the rest of the page so consisted. The feature consisted of a photograph with a small strip of words on the side. The photograph was of a naked woman showing her body from the knees up. Her face and parts of her body were painted with patterns. Her breasts were exposed but the nipples had been obscured by opaque squares which had been applied by photographic technique. Her pubic area was covered by a long piece of material she was holding. The words beside the photograph in ordinary print read: "A human body painting exhibition was performed on Friday at the capital, Seoul by a South Korean female model, splendid and pleasing to the eye. This kind of open performance was the first time in South Korea". This was below the title in four Chinese characters in bigger print : "Beautiful and Sensuous Like a Picture"

14. On 30 June 1996 the newspaper published two features on page A17. That page bore the heading "Lifestyle Portrayals" and the rest of it consisted of such stories. The first feature was at the top half of the page and measured about 22 cm x 13 cm (9" x 5"), occupying just under 15 % of the page. It consisted of a photograph showing two women dancing with one in front of and close to the other with their hands stretching outward and their bodies leaning forward. It showed their naked upper bodies, with the faces of both women and the upper chest of the woman nearest to the camera painted with some patterns. The breasts of the woman in front were uncovered but the nipples had been obscured by applied opaque squares. The right breast of the woman behind her could be seen but not the nipple. At the top right hand corner of the photograph was the title in four Chinese characters : "Two naked pretty girls dancing". Beneath the photograph was a one line report in ordinary size print : "In order to celebrate the formation of the Korea Naked Model Association, two naked models were performing to publicize in a hotel at Seoul on Friday."

15. The second feature was on the same page. This was at the right hand side extending from about the middle to the bottom of the page and measured about 30 cm x 10 cm (12" x 4"), occupying about 15% of the page. It had a title in the middle : "In a record shop in Australia a free CD to naked customers" with a short report next to it : "An annual naked shopping day was held on Saturday at a record shop in Melbourne, naked customers were given a free CD and had a chance of winning a free trip."

16. It had three photographs. The first one showed the exposed buttocks of two women and one of the breasts of a third women with the nipples obscured by an applied opaque square in the record shop. A fully dressed man and the head of a another man also appeared. Under it was this description : "Three customers came out of admiration and shopped naked."

17. Beneath the first photograph was a photograph which showed a naked man and woman. The man's upper body appeared in...

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