WONG KAM KUEN v. THE COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING AND ANOTHER

HCAL 150/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.150 OF 2002

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J U D G M E N T

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Introduction

1. This application for judicial review brings into question the power of the respondent ('the Commissioner'), when licensing amusement game centres, to impose conditions concerning the content of the games that may be played in those centres. More specifically, what is brought into question is the power of the Commissioner to prohibit absolutely the viewing or playing of games in licensed amusement game centres which, by reason of violence, sexual explicitness or the perceived promotion of gambling, are considered by him to be undesirable.

2. The applicant, the representative of a company called Jubilant Success Limited, is the licensee of an amusement game centre in Kowloon. In terms of s.5(7)(c)(ii) of the Amusement Game Centres Ordinance, Cap.435 ('the AGC Ordinance'), the centre is licensed to admit only persons of 16 or older.

3. As to the Commissioner's general power to licence amusement game centres, s.5(4) of the AGC Ordinance does not allow him to grant a licence unless he is satisfied that the licensee is a suitable person and that the amusement game centre itself is housed in suitable premises. Subject to this, in terms of s.5(3) of the AGC Ordinance, the Commissioner may grant a licence and may

"... impose such conditions in relation to the operation, keeping, management or other control of the amusement game centre as he thinks fit."

4. The licence issued by the Commissioner to the applicant is subject to conditions which, I am told, apply to all such licences. One of those conditions is worded in the following terms :

"Only those types of games in the approved list of games attached to the licence shall be installed or placed for use or operation in the premises."

5. It is the content of the games which determines whether they are approved or not approved. Clearly, the Commissioner must have regard to the content of games that are played in amusement game centres. He is given the statutory responsibility of categorising games that may be viewed or played by all ages or only by those who are 16 or older. In this regard, s.5(7)(c)(ii) of the AGC Ordinance directs that a licence shall

" authorize the licensee to operate an amusement game centre

(i) ...

(ii) for the playing of such type of games by persons of such category or description

(A) who are under the age of 16 years; or

(B) who have attained the age of 16 years."

6. In addition, it is accepted that the wide (but not unfettered) discretion given to him in terms of s.5(3) of the AGC Ordinance must allow him to prohibit games that constitute a danger to health or are illegal. That power may reasonably and properly be exercised within his discretion. What is not accepted is that the discretion allows him to impose a system of moral censorship whi4ch applies to those who are 16 or older.

7. With new games constantly coming onto the market, it is the practice that the Commissioner's approved list of games is subject to amendment. Game centres themselves, manufacturers or merchants who deal in games may submit games for approval. Licencees are kept informed of whether new games have or have not been approved and, if approved, for what age limit. I am told that the Commissioner has a web site where the relevant information can be found. If an amusement game centre plays a game which has not been approved by the Commissioner that is considered to be a contravention of the terms of the licence, rendering the licensee subject to sanction in terms of s.9 of the Ordinance.

8. In order to decide what games should or should not be approved, the Commissioner manages a vetting procedure. It is 'informal' in that it has no statutory basis. However, internal guidelines have been laid down. These provide that, in determining whether a game should or should not be approved and, if approved, for what age group, the following factors must be taken into account :

"(i) the degree of violence;

(ii) the existence of sexually explicit features;

(iii) the presence of gambling element in the game; and

(iv) the safety of the games for players and the public."

9. To illustrate the context within which violence and explicit sexuality are viewed, the internal guidelines state that games that fit the descriptions given below should not be approved for any licensed game centre :

"(i) Excessive Violence

Striking action causing and showing vivid facial agony, inordinate bursting of blood with vivid visual effect, close-up shots of the wounds, dismemberment of human bodies, gang-fighting involving the use of readily accessible weapons such as knives, clubs etc. in a simulated real-life situation.

(ii) Sexually Explicit pictures/images

Appearance of nudity involving the exposure of female breasts and/or genitals or male genitals; or where the human figure though properly dressed is posed with seductive and inviting gestures such as pulling down part of the dress."

10. As for gambling, the guidelines state that games falling into the following broad description should not be approved :

"Gambling games and games of pure chance with little or no skill involved, such as Black Jack, Poker, roulette, slot machine etc., or games which resemble some generally-accepted gambling games, such as horse-racing."

By way of an exception, mahjong games may be allowed in centres that admit persons of 16 or older but not in centres catering to younger persons.

11. In June 2001, the Commissioner informed the applicant that, pursuant to his powers under s.9 of the AGC Ordinance, he was considering suspending the applicant's licence for a period of 14 days. He was considering doing so because of alleged contraventions of the licence. These contraventions included the playing of games which had not been approved and the playing of games, which although approved, were seen by the Commissioner's inspectors to contain 'indecent' material.

12. The applicant made representations to the Commissioner as to why there should be no suspension of the licence but was unsuccessful. In the result, by notice dated 16 July 2001, the applicant's licence was suspended by the Commissioner for a period of 14 days. The order was made pursuant to s.9(1)(b) of the AGC Ordinance, s.9(1) reading :

" The Commissioner may be notice in writing served upon the licensee either personally or by registered post

(a) revoke a licence;

(b) suspend a licence for such period of time as he may think fit;

(c) refuse to renew a licence; or

(d) amend or vary the conditions of a licence, on any ground mentioned in subsection (2).

If the Commissioner is satisfied that a licencee has contravened a condition of his licence, he is empowered to employ the sanctions stated above : see s.9(2)(c) of the AGC Ordinance.

13. Aggrieved by the Commissioner's decision to suspend the licence, the applicant appealed to the Amusement Game Centres Appeal Board, a body constituted in terms of s.12 of the AGC Ordinance. The applicant's appeal was dismissed, the Appeal Board giving its decision on 3 July 2002 and handing down its reasons on 30th of that month.

14. The applicant now seeks orders of certiorari to bring up and quash both the decision of the Commissioner to suspend the licence for 14 days and the decision of the Appeal Board to dismiss the appeal made against the Commissioner's decision.

15. Although a number of challenges have been made to the lawfulness of the decisions made by the Commissioner and the Appeal Board, to employ the language of Mr Dykes, the fundamental challenge goes to the power of the Commissioner to impose what Mr Dykes has described as moral or social value judgments on the community by refusing to allow amusement game centres, no matter what their age of admission, to play games which he, in the exercise of certain informal criteria, considers undesirable. That exercise of censorship, it is said, is ultra vires the powers of the Commissioner.

Is the Commissioner acting ultra vires?

16. Art.16 of the Hong Kong Bill of Rights, Cap.383, protects freedom of expression. This includes the right to seek, receive and impart information and ideas of all kinds. As expressed by the European Commissioner on Human Rights, "freedom of expression is based on the need of a democratic society to promote the individual self-fulfilment of its members, the attainment of truth, participation in decision making and the striking of a balance between stability and change. The aim is to have a pluralistic, open and tolerant society" (see Report of the Commission, 30 September 1975, Series B, para.146-147 cited in The Hong Kong Bill of Rights : A Comparative Approach edited by Johannes Chan and Yash Ghai, page 307). Freedom of expression is not restricted to those matters considered laudable. That would allow censorship through the back door and undermine the very thing that is sought to be protected. Video games and the like may not contain material of high seriousness but that in no way lessens the protection given to them under art.16 of the Bill of Rights.

17. Freedom of expression is, however, a qualified right as art.16 of the Bill of Rights makes clear and may be subject to restrictions that are provided by law and are necessary inter alia to protect public health or morals.

18. In 1987, the Control of Obscene and Indecent Articles Ordinance, Cap.390 ('the COIA Ordinance) came into effect. The Obscene Articles Tribunal ('the OA Tribunal') is constituted in terms of that legislation. In terms of s.29 of the COIA Ordinance, the OA Tribunal has 'exclusive jurisdiction' to determine whether an article (being any thing containing material to be looked at, listened to or read) is obscene or indecent. Obscenity and indecency are widely framed and include 'violence, depravity and repulsiveness'. In terms 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, a person under the age of 18. In determining whether an article is obscene or indecent, the OA Tribunal is obliged to have regard to certain criteria which are listed in s.10, including 'standards of morality, decency and propriety that are generally accepted by reasonable members of the community".

19. In terms of s.3 of the COIA Ordinance, the OA Tribunal has no jurisdiction in respect of films and related material that fall for censorship under the Film Censorship Ordinance, Cap.392. But otherwise, as I have said, it is given 'exclusive' jurisdiction to determine whether an article is obscene or indecent. In my judgment, a game to be played in an amusement arcade constitutes an article in terms of the COIA Ordinance.

20. Censorship, even when justified to protect public health or morals, nevertheless restricts the right of freedom of expression and must be provided for by law. The Film Censorship Ordinance provides for a Film Censorship Authority which is constrained by statutory criteria : see s.10. The COIA Ordinance, which has jurisdiction over a far broader range of material, provides for a tribunal which is also constrained by statutory criteria : see s.10. In light of this, in respect of the AGC Ordinance, the question must be : are the censorship powers exercised by the Commissioner in respect of games which he considers undesirable provided for by law; that is, provided for within the terms of the AGC Ordinance itself?

21. As I have said, the Commissioner has the stated power, in terms of s.5(7)(c)(ii) of the Ordinance, to determine what games should or should not be viewed or played within amusement centres by persons under the age of 16, they being persons who, by reason of their youth, are considered by the legislature to be in need of protection. But, in respect of persons who have attained the age of 16, does the Commissioner have a similar power of censorship? The AGC Ordinance provides no stated power. Is the power therefore to be implied? If it is to be implied, the implication, in my view, must arise from the broad discretion given to the Commissioner in terms of s.5(3) of the Ordinance to impose conditions in relation to the 'operation, keeping, management or other control' of any amusement centre which he licences. But, as broad as that discretion may be, it is not absolute. In this regard, I can do no better than refer to the observations of Sir William Wade and Christopher Forsyth, authors of Administrative Law (8th Ed.) at 356 :

"The common theme of all the authorities so far mentioned is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. Although the Crown's lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms. The real question is whether the discretion is wide or narrow, and where the legal line is to be drawn. For this purpose everything depends upon the true intent and meaning of the empowering Act."

22. In light of this, bearing in mind that in other legislation restricting the right of freedom of expression the legislature has seen fit to specifically define the censorship power and the criteria to be employed in its exercise, I cannot accept, in respect of the AGC Ordinance, that the legislature intended to give to the Commissioner the unfettered power of censorship presently being exercised by him. Yes, the Commissioner may direct that certain games will only be viewed or played in licensed arcades by persons who have attained the age of 16 but it does not follow, in my view, that it is incidental to or a reasonable consequence of that power, even when read with the discretion given to him under s.5(3), that persons of 16 or older may themselves be prevented absolutely from viewing or playing games because the Commissioner considers such games morally unsuitable.

23. If the Commissioner is of the view that a game may be unsuitable and should not be viewed or played because it is obscene or indecent then it seems to me that his recourse is not to exercise a form of 'informal' censorship, for he does not have that power, but rather it is to refer the game in question to the OA Tribunal in terms of s.13 of the COIA Ordinance so that the OA Tribunal, which has 'exclusive' jurisdiction in such matters, may determine whether it is obscene or indecent. In this regard, I agree with the submission by Mr Dykes that a general administrative power given to the Commissioner under s.5(3) of the AGC Ordinance to attach conditions to a licence issued in respect of a particular premises cannot be used to by-pass the judicial body given specific jurisdiction to determine the issue of obscenity or indecency. In this respect, the maxim generalia specialibus non derogant is relevant. Any general power given to the Commissioner in the AGC Ordinance does not oust the specific and exclusive power given earlier to the OA Tribunal under the COIA Ordinance, not unless specific provision is made to that effect and there is no such provision.

24. If I was to hold that the Commissioner does have the power of censorship which has been challenged by the applicant, I would be concerned as to how that power would happily rest with the powers of the OA Tribunal. For example, what if the Commissioner approved a game for centres catering to those of 16 years or older but the Tribunal, upon a submission made to it, found it to be obscene? Under the one scheme it would be an approved game, under the other it would be a game which, if played, would give rise to a criminal offence. A conflict of that nature can never have been the intention of the legislature.

25. I accept that, in respect of age, the schemes contained in the AGC and the COIA Ordinances do not fully harmonise. The Commissioner has the power under the AGC Ordinance to restrict games that are to be viewed or played by persons who have not reached the age of 16. The OA Tribunal, if it determines that an article is indecent, prohibits that article from being published to persons under the age of 18. There is therefore a two-year overlap between the respective statutory schemes. That is a matter that may have to be considered by the legislature. But I do not see any such overlap as undermining the view that I have reached as to the powers of the Commissioner. If the OA Tribunal determines that a game is obscene, it may not be approved for any amusement game centre. If the OA Tribunal determines that a game is indecent then equally, because it may not be viewed by persons under 18, it may not be approved for any amusement game centre. If, however, the OA Tribunal determines that a game is neither indecent nor obscene, while that will obviously be a persuasive factor and may result in a decision being made that the game can be played in all amusement game centres, it will not prevent the Commissioner from nevertheless determining that it should only be released for centres catering to those of 16 or older.

26. But what of those games which, under the COIA Ordinance, are not to be classified as obscene or indecent but which the Commissioner nevertheless deems unsuitable because they may promote undesirable traits in young persons; for example, a desire to gamble on horse racing? Clearly, the Commissioner may restrict such games to centres which are only licensed for those who have reached the age of 16. But in respect of those centres, I do not see how he can further impose his views as to what is or is not suitable, thereby restricting freedom of expression, without clear statutory power to do so.

The consequence of the ultra vires finding

27. In suspending the applicant's licence, the Commissioner found that there had been at least three contraventions of the licence conditions concerning the content of games. The Appeal Board, in dismissing the applicant's appeal, supported the Commissioner's findings in this regard.

28. In one instance, an inspector who visited the applicant's centre said that a game being played contained indecent material or at least what he considered to be indecent. That, it was said, contravened the applicant's licence. How that can be so escapes me. Surely the issue must be : was the game approved or not? The issue cannot be the moral dynamics of an already approved game and the applicant, without challenge, had said that it was approved. In that regard alone the findings of both the Commissioner and the Appeal Board must be wrong in law. But leaving that aside, any condemnation related to decency was, in the circumstances, ultra vires the power of the Commissioner.

29. In a second instance, it was suggested that a container for a game which had not been approved was found in the applicant's centre. That alone, it appears, was held to constitute a contravention of the licence despite the fact that, according to the applicant, it contained an approved game, an assertion that does not appear to have been challenged. Quite how the discovery of a container for a non-approved game can constitute a contravention of the applicant's licence when there was no evidence of the playing of the game itself escapes me. I fail to see how a decision-maker could reasonably have come to the conclusion that it amounted to a contravention of the licence. But leaving that aside, this matter too must go to the question of whether or not, in approving the game and through it somehow the container, the Commissioner was acting ultra vires his powers.

30. It is clear to me, on a recitation of these two examples only, that the decision of the Commissioner to suspend the applicant's licence and the decision of the Appeal Board to support his decision, must be set aside and the matter remitted to the Commissioner for a fresh determination in accordance with law. While there were a number of findings made against the applicant, not all related to the content of games, there was only one inclusive penalty imposed and the nature and extent of that penalty must be determined by the nature and extent of the various findings of the Commissioner.

Reliance on contraventions of expired licences

31. The suspension of the applicant's licence was based on 11 contraventions, 3 in respect of what Mr Dykes described as the current licence and 8 in respect of what he described as earlier licences. Mr Dykes submitted that the Commissioner had no power to take into account alleged contraventions of earlier, expired licences in order to impose a sanction on the current licence, not when he had issued the current licence in terms of s.5 of the AGC Ordinance being satisfied that the licensee was a fit and proper person and that the licensee would adequately and personally supervise the operation of the amusement game centre.

32. However, Mr Coleman, for the Commissioner, said that there had only ever been one licence, that single licence simply being renewed on a number of occasions in terms of s.8 of the AGC Ordinance. That, in my opinion, must be correct. In this regard, s.8(1) reads :

" A licensee may, before the expiration of his licence, apply for his licence to be renewed for a period of 12 months or such lesser period as may be indicated by the licensee at the time of application."

33. Looking to the wording of the AGC Ordinance, I am satisfied that the renewal of a licence (even if for administrative purposes it carries a new number) does not amount to the issue of a new licence. That being the case, in my view, the Commissioner was entitled to take into account earlier transgressions of the same licence. But even if I am wrong in this regard, there is substance, I think, in Mr Coleman's submission that, in deciding whether or not to suspend the applicant's licence, the Commissioner was entitled to view the matter within its historical context. To suggest otherwise would result in an artificial situation and could in many cases visit an injustice upon a licensee. What if a licensee has, without blemish, held a licence (or licences) for 10 years? Is that licensee not entitled to ask the Commissioner to take that into account when a contravention of his licence (or his current licence) does arise?

The burden of proof adopted by the Appeal Board

34. It is apparent that the Appeal Board, in determining the various challenges made by the applicant, did so on the basis that the burden of proof lay on the applicant and not on the Commissioner. In my judgment, that constituted a material error of law.

35. Neither the AGC Ordinance nor its regulations state where the burden of proof shall lie in appeals to the Appeal Board. That being the case, the Commissioner having alleged the various contraventions, it is incumbent upon him to show that they occurred. This follows the rule : proof rests on he who affirms not on he who denies. In this regard, see, for example, the dicta of Kaplan J (as he then was) in In re Chen Huang Qiong [1994] 2 HKLR 394 (at 397).

36. What must be remembered is that the Appeal Board, whatever its name, is the first impartial body to which the administrative decisions of the Commissioner are referred. That being so, why should the Commissioner, having made the allegations and decided their merit himself, not be the party to prove them to the Appeal Board? That accords with standard rules of fairness.

Conclusion

37. For the reasons given in this judgment, while I have not determined each and every challenge made by the applicant, that being a unnecessary exercise, I have come to the conclusion that the application for judicial review must be allowed. Both the decisions of the Commissioner and the Appeal Board are brought up and quashed. The matter is remitted to the Commissioner for fresh determination, should he deem it necessary. Costs are awarded to the applicant.

Remarks: