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

CACV 41/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 41 OF 2003

(ON APPEAL FROM HCAL NO. 150 OF 2002)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from a judgment of Hartmann J given on 24 January 2003. The matter before the judge was an application for judicial review of two decisions. The first was a decision of the 1st respondent dated 16 July 2001 and the second was a decision of the 2nd respondent dated 30 July 2002. The judge made an order quashing both decisions and remitted the matter to the 1st respondent for fresh determination in accordance with his findings as to whether the applicant's licence should be suspended for 14 days. Although the notice of appeal sought to set aside the judge's order in respect of both decisions, when the matter was argued Mr Westbrook SC, who appeared on behalf of the appellant, did not seek to uphold the second decision. At the conclusion of the hearing of this appeal, judgment was reserved to be handed down in writing which we now do.

2. At the centre of this appeal is the question as to what extent and in what way the Commissioner for Television and Entertainment Licensing ("the Commissioner") can regulate, by conditions imposed in a licence issued under section 5 of the Amusement Game Centres Ordinance, Cap. 435 ("the Ordinance"), the games which are available in amusement game centres. The judge below came to the conclusion that the Commissioner did not have power of censorship in respect of video games which were to be played in amusement game centres licensed for persons who had attained the age of 16.

Background

3. The questions in this case arose because in June 2001 the Commissioner notified the applicant that, pursuant to his powers under section 9 of the Ordinance he was considering suspending the applicant's licence for a period of 14 days. The alleged contraventions of the licence centred around two main grounds of complaint. The first was that unapproved games had been installed in contravention of Licence Condition No. 10 and the second was that the layout plans had not been followed in contravention of Licence Condition No. 8. The applicant made representations to the Commissioner by letter dated 19 June 2001. Those representations were unsuccessful. On 16 July 2001, the Commissioner issued a notice to the effect that the applicant's licence would be suspended for 14 days. The applicant then, on 11 August 2001, filed a notice of appeal to the Appeal Board. Following hearings which took place in February and June of 2002, the applicant was notified in early July that her appeal was dismissed. The reasons for the dismissal of the appeal were handed down on 30 July 2002.

The previous legislation

4. Before 1993 amusement game centres had been controlled under the Miscellaneous Licences Ordinance, Cap. 114. Under section 3 of that ordinance the Governor in Council was empowered to make regulations in respect of a number of matters. The only regulations which had been made were under the Miscellaneous Licences Regulations. It is noteworthy that under Regulation 149 the person licensed to keep the amusement game centre was required not to "suffer or permit" "any unlawful game". There were regulations which required the licensee not to permit drunkenness or persons of bad character to resort on the premises, that required the game centre to be closed between 2 am and 8 am and that prevented any transfer or what might be termed trafficking in the licence. Regulation 9 permitted the licensing authority to impose special conditions in respect of any licence, subject to the approval of the Governor in Council.

5. In the case of Attorney General v Chan Foo [1990] 2 HKLR 428, the question arose as to the validity of a special condition which prohibited persons under the age of 16 entering premises which were classified as adult centres. The Governor in Council had apparently approved some 18 special conditions. The matter was taken on appeal on case stated from the Magistrate's Court to the Court of Appeal. The questions in the appeal centred upon whether the special conditions were valid. The court held that section 3 of the Miscellaneous Licences Ordinance enabled the Governor in Council to make licence conditions by regulation only. Regulations had been duly made. Although, under Regulation 9, the Governor in Council had purported to give himself the power to approve the imposition of special conditions, the effect of that was that the special conditions were not made by regulation but by executive decision. The court therefore held that the special conditions were ultra vires. That decision then gave rise to the introduction of the Amusement Game Centres Bill.

The Amusement Game Centres Ordinance

6. The Ordinance is entitled "An Ordinance to regulate game centres". Under section 4, a licence is required for the operation of an amusement game centre. Section 5 of the Ordinance deals with the application for and grant of a licence. Section 5(3) provides that:

"Subject to subsection (4), 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".

Subsection (4) relates to requirements as to the fitness of the licensee and the proposed licensed premises. Subsection (7) reads:

"A licence granted under this section shall -

(a) be in such form as the Commissioner may determine;

(b) not take effect except on payment of the prescribed fee payable for the grant of a licence;

(c) authorize the licensee to operate an amusement game centre-

(i) with such number and type of machines or devices;

(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;

(iii) at such place; and

(iv) for a period of 12 months or such lesser period,

as shall be indicated therein."

There are then provisions which deal with restrictions on the transfer of licences. Section 6 is drafted in wide terms to prevent what in effect would be trafficking in licences. Section 9 deals with the powers of the Commissioner to revoke, suspend or refuse to renew licences. Under section 11 of the Ordinance, provision is made for appeals against the decisions of the Commissioner which are made in respect of his powers under section 5, section 6 and section 9. There are powers of entry and seizure in circumstances where there is a contravention of the Ordinance either because no licence has been issued or in situations where there has been a breach of the licence. Section 20 of the Ordinance restricts entry to premises which have been licensed for persons who are under 16. Only persons who are under 16 or who have some lawful business to be there may enter such premises. The penalties and fines for contravening those provisions are the same as those in respect of other offences under the Ordinance.

The conditions imposed by the Commissioner

7. We were shown the licence conditions applicable for centres for persons who have attained the age of 16 years. These are apparently standard conditions which are attached to all such licences. They range from conditions which relate to the age of those who may enter the premises to a condition which requires compliance with section 6 of the Ordinance. For present purposes the important conditions are Nos. 9 to 11:

"9. The licence, together with the approved list of games attached to it, and copies of the licence conditions and layout plans currently approved by the Commissioner shall be kept inside the premises and be made available to the police or a public officer authorized by the Commissioner for inspection upon demand.

10. 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.

11. The names of the games being played shall be readily ascertainable from the screens or the outer parts of the machines or devices which are in operation."

8. During the hearing we were given a copy of the licence issued to the applicant for the period 27 October 1999 to 26 October 2000. Against the rubric "Types of Games approved" was printed "As shown on the list attached". We were informed that attached to the licence there would have been a list of games. Importantly, however, we were also told that the list of games is updated as and when new games are approved. In what is apparently a competitive market the introduction of new games is common.

The lists of games

9. As set out in the judgment below, a procedure has been devised for vetting new video games in order to select those which are considered suitable for amusement game centres. With that purpose in mind, there has been devised a list of "Vetting Criteria for Amusement Games/Devices" which has been issued by the Commissioner. It commences by indicating the four main criteria as follows:

" In considering whether or not an amusement game or device should be approved, TELA would take the following factors 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."

The document goes on to explain the criteria in more detail.

"2. According to the prevailing guide, games with the following features would not be approved:

(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.
(iii)	Gambling
	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.
	(N.B. Mahjong games however, are normally allowed).
(iv)	Public Safety
	Games posing potential safety hazards to players and people around."

10. The vetting criteria document concludes with the statement that what is set out represents the current vetting standard but each case has to be considered on its merits. There is then a separate sheet which is headed " Vetting Criteria for Amusement Games/Machines in Adult and Children Amusement Game Centres". The sheet that was included in the papers was a 1999 revision. Again, this deals with violence, sex, gambling and safety generally. The following is taken as an example:

"
General Criteria	Games not normally approved in centre for persons of 16 and above		Games not normally approved in centre for persons below 16
Degree of Violence	Excessive violence e.g. 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.		Any fighting games in a simulated real life situation, e.g. in schools, in playgrounds, on the streets etc., with or without those features disapproved for adult centres.
Degree of Sex	Sexually explicit pictures/images e.g. 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.		Games with a sexual content and/or display of anything sexual in nature.
Gambling Element	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. (Mahjong games, however, are normally allowed)		Same as for adult centre but mahjong games will not be allowed.
			"

11. Our attention was drawn to the manner in which these criteria are applied. There is an informal Advisory Panel composed of members of the public selected by the Commissioner. The Advisory Panel was first set up in 1995. According to the statement of Mr Lemuel Woo, a Senior Licensing Officer, there are 16 members of the panel. Apparently the panels usually consist of four persons but, as will be seen, there can be less. The only indication that has been given as to the criteria for appointment to the panel is that the appointees are members of the public with diversified backgrounds.

12. The panel members present at each session view the relevant game, or more accurately it seems it would be a tape of the game. They then fill in an assessment form which is a questionnaire in which they are asked to mark the relevant boxes. The first set of questions is directed to whether the game is in the opinion of the panel member suitable for adult game centres, children centres or neither. Then the member is asked to give an opinion as to whether the game contains violence. If there is violence, the violence is categorised in such categories as kicking and fighting to amputation of human body or using easily obtainable weapons to carry out gang-fights. The person completing the form is required to indicate whether the violence is "average" or "overwhelming", there being boxes so that there can be a choice between three different levels. The next question is entitled "Pornographic". If that is indicated in the affirmative the questionnaire proceeds to ask whether it is seductive/tempting actions or postures or nudity, again, on a threefold level. The questionnaire then proceeds to "Elements of Gambling" and "Safety precautions given to players or observers". The fifth question relates to whether the game or machine requires a high level of alertness, physical stamina or energy consumption and the last question in this series relates to "others (e.g. horror)". In relation to each of those matters, there is a box to be ticked if the condition exists and three boxes to indicate the level from "average" to "overwhelming". The next question is "If it is felt that the game/machine is not suitable for use/installation in a Amusement Game Centre, please state the reasons why:", a similar question in relation to whether the game or machine is suitable for use only in an adult centre and finally a question in relation to both types of centre.

13. According to the documents which were exhibited in relation to the "Mega Touch Maxx Diamond Edition" game, there were two panel members who attended the session. A third was unable to come at the last minute. One of the panel members considered that the game would be suitable for both categories of centre provided two mini games which were included in the package were removed. The other considered that it would be suitable for adult centres if one of those mini games were removed. After the forms were completed the Licensing Officer (Amusement) 11 wrote a file minute and reported the opinions expressed by the members of the panel and gave her own recommendations to Mr Woo. Under the heading "Recommendation" it was said:

"'Mega Touch Maxx Diamond Edition' is an assorted game. The mini-games in question i.e. 'Quintzee' and 'Tai Play' have been discussed earlier on whilst considering the game 'Mega Touch Maxx'. 'Quintzee' was considered gambling in nature and not suitable for adults and children whilst 'Tai Play' was not considered suitable for children because Mahjong tiles were for playing matching games."

The Senior Licensing Officer then reviewed the assessment and passed the matter on to the Assistant Commissioner (Special Duties) with his own recommendation. His recommendation endorsed that of the Licensing Officer and included reference to the fact that the two mini-games had been discussed before. In that way the game was finally approved.

Section 5 of the Ordinance

14. The first question which appears to arise from the Ordinance and the way in which its provisions are carried into effect relates to the powers of the Commissioner under section 5. Turning first to section 5(3) the power to impose conditions there relates to the operation, keeping, management or other control of the amusement game centre. Insofar as the conditions in the licence controls the opening hours, the level of lighting and the layout of machines, there is no doubt that these conditions fall within conditions which can be imposed under this subsection on the basis that they would relate to operation, keeping and management. The words "or other control of the amusement game centre" must, no doubt, be read in the context of operation, keeping and management. The question then arises as to whether the content of the games which may be used in the machines would fall within that category.

15. In construing the wording of section 5(3) Mr Westbrook SC, who appeared on behalf of the Commissioner, relied on the construction which had been given to the wording of section 2(1) of the Cinematograph Act 1909. The subsection read:

"A county council may grant licences to such persons as they think fit to use the premises specified in the licence for the purposes aforesaid"- that is for the purposes of cinematograph exhibition - "on such terms and conditions and under such restrictions as, subject to regulations of the Secretary of State, the council may by the respective licences determine."

16. Although counsel only cited one case in this respect, namely Reg v G.L.C., Ex p. Blackburn [1976] 1 WLR 550, it was to be noted that there had been a number of cases which had considered this section. What had been said in those cases is, perhaps, useful in understanding the result which was reached in that last case.

17. The decisions had held that a county council could impose conditions which related to other matters in addition to safety, so long as they were not unreasonable. So, for example, in London County Council v Bermondsey Bioscope Co. Ltd [1911] 1 KB 445 a condition which prohibited use of the cinema on Sundays was held valid. In reaching the conclusion that the condition was not unreasonable Lord Alverstone C.J. had regard to the policy of the Sunday Observance Act 1780 and the law and the practice as to licensing music-halls and other places of entertainment.

18. This was followed, for example, in the case of Mills v London Country Council [1925] 1 KB 213. There the Court of Appeal upheld a condition which forbade the showing of films, which had not been passed by an independent body, namely the British Board of Film Censors, without the express consent of the council when an unaccompanied child was present. It can be noted, however, that this was the only method of censorship, since there was no equivalent of the Film Censorship Ordinance, Cap. 392 in the United Kingdom at that time. The interpretation of section 2(1) of the 1909 Act as giving a power of censorship to the county councils was, in effect, endorsed by the passing of the Cinematograph Act 1952 which imposed a duty to make conditions to ensure that children would not be admitted to see an unsuitable film.

19. In the case of Theatre De Luxe (Halifax), Limited v Gledhill [1915] 2 K B 49 the Court of Appeal had to determine the validity of the condition

"Children under fourteen years of age shall not be allowed to enter into or be in the licensed premises after the hour of 9 P.M. unaccompanied by a parent or guardian. No child under the age of ten years shall be allowed in the licensed premises under any circumstances after 9 P.M."

Atkin J (as he then was) dissented from the majority decision, Lush and Rowlatt JJ. The majority held that the condition was ultra vires. In his judgment Atkin J, despite dissenting from the majority, accepted the basic premise of the argument as to how the question of the power to make conditions should be interpreted. He said at page 59:

"It was contended by the respondent in the present case, and in my view rightly contended, that there is a limitation of the powers of the county council, namely, that the restriction must be reasonable and in relation to the exercise of the powers granted under the licence of the licensed premises qua licensed premises and in relation to the public interest. If those three conditions are complied with, it appears to me that there is no other fetter upon the discretion given to the licensing authority. I have felt the greatest difficulty in seeing what limitations can be imposed if they fall short of those I have mentioned. I feel the greatest difficulty in saying that a condition may be imposed compelling a cinematograph entertainment to be closed to the public at a stated time, e.g., at 11 o'clock, unless it is justified by the principle that it is in the general interest of the public." (emphasis added)

20. In the case of Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation [1948] 1 KB 223, which is perhaps rather more frequently referred to than cited, Lord Greene M.R. referred to what Atkin J said in the following terms at page 233:

"If I may venture to express my own opinion about that, I think that Atkin, J., was right in considering that the restrictions on the power of imposing conditions were nothing like so broad as the majority thought, but I am not sure that his language might not be read in rather a different sense from that which I think he must have intended. I do not find in any of the language that he used any justification for thinking that it is for the court to decide the question of reasonableness rather than the local authority. I do not read him as in any way dissenting from the view which I have ventured to express, that the task of the court is not to decide what it thinks is reasonable, but to decide whether the condition imposed by the local authority is one which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose. Similarly, when he refers to the public interest, I do not read him as saying more than that the public interest is a proper and legitimate thing which the licensing authority ought to have in mind. He certainly does not suggest that the court is entitled to set up its view of the public interest against the view of the local authority. Once the local authority have properly taken into consideration a matter of public interest such as, in the present case, the moral and physical health of children, it seems to me there is nothing in what Atkin, J., says which suggests that a court could interfere with a decision because it took a different view of what was the public interest. It is obviously a subject on which different minds may have different views. I do not read him as doing any more than saying the local authority can and should take that matter into account in coming to their decision."

21. In the case of Reg v G.L.C., Ex p. Blackburn the Court of Appeal, Lord Denning MR, Stephenson and Bridge LJJ all held that this provision of the 1909 Act gave a power of censorship. Whereas, initially, I had doubts about the matter, I consider that control of a centre would include having a choice and control over the games that are played. However, as Atkin J had said in relation to section 2 of the 1909 Act, the condition must be reasonable or, as Lord Greene preferred to put it, not clearly unreasonable, and in relation to the public interest.

22. Turning to section 5(7)(c) when cut to the effective wording it provides:

"A licence ... shall ... authorise the licensee to operate an amusement game centre ... for the playing of such type of games by persons of such category or description who are under the age of 16 years [(or) who have attained the age of 16 years]."

What is, perhaps, important to note is that the authorisation is in respect of playing such type of games. In this court consideration was given as to whether this empowered the Commissioner to licence particular games or whether the authorisation should be as to types of games, namely, categories thereof. The wording of the licence would indicate that the view has been taken that the power to control the games which are available in a game centre stems from section 5(7)(c). In my view, however that provision permits regulation of types of games. Types of games seems to me to relate to categories of games, rather than specific games.

23. In arguing strongly that the words "type of games" should be interpreted as permitting the Commissioner to license particular games and prohibit the use of any that are not licensed, Mr Westbrook prayed in aid in particular the statements made at the time of the passage of the Amusement Game Centres Bill from October 1992 through to July 1993. Reference to this material was permitted on the basis that it showed the background and reasons for the introduction of the legislation. The statement of the Secretary for Home Affairs made on 14 October 1992 explains that the introduction of the bill was caused by the Court of Appeal decision in May 1990 to which reference has already been made. He said in the course of his speech:

"The Court considered that when the legislation provided for the Governor in Council 'by regulation' to make licence conditions, there was no power to impose or establish licence conditions by any other process. This was so notwithstanding Regulation 9 of the Miscellaneous Licences Regulations which empower the Commissioner to impose special licence conditions under the approval of the Governor in Council."

He then went on to say:

"Due to the vires problems, amusement game centres have increasingly been operated in a manner which conflicts with the former licence conditions. Consequently, unapproved machines and games of an indecent nature can be found in many centres, age limits are also ignored. There has been public concern over these problems.

...

Of greatest significance will be the conditions to: prohibit the installation of any game which has not been approved by the Commissioner; and bar entry to adult centres to people age 16 and above (corrected to below), as well as to restrict entry to children's centres to persons up to the age of 16 only."

24. The difficulty posed by reliance upon this statement is that it expresses, in very clear terms, the concept of the Commissioner controlling the precise games which are to be permitted in a game centre. In contrast, however, the wording of the Ordinance does not do the same. In my view, at the very minimum the wording of the Ordinance lacks the clarity of the Secretary's statement.

25. Reliance was also placed upon certain passages in what was said on 14 July 1993 by the Rev. Fung Chi-wood, who had been the Chairman of the relevant Bills Committee. Regrettably, however, the English translation does not accord with the recorded version of his speech in Cantonese. The English version reads:

"The Administration further explains that the policy is to ban excessively violent games and those containing graphic sexual or gambling activities. This view is strongly supported by the public and the district boards. In this connection, vetting criteria for games played in adult and children centres have been drafted to tighten up the standards."

What is recorded as having been said in Cantonese, however, shows that, at that stage, the vetting criteria remained to be drafted. In any event, caution must be taken in referring to what one member of LegCo has said, albeit he was the Chairman of the Bills Committee.

26. The question then arises as to whether the Commissioner can impose his own standards of morality and decency when he grants a licence under section 5 of the Ordinance, in particular in respect of game centres to which adults may be admitted. This aspect of the case is of particular concern because it directly affects the ability of the Commissioner to control the games which are available in the game centres.

The judgment below

27. In paragraphs 21 and 25 of the judgment, the judge accepted that the Commissioner had the power under section 5(7)(c)(ii) of the Ordinance to restrict games that were to be viewed or played by persons who had not reached the age of 16. I would observe, for my part, that on the strict wording of the subsection there would be a difficulty in ascertaining any distinction between the Commissioner's powers in relation to those who are under the age of 16 and those who have attained the age of 16. On the bare wording of section 5(7)(c) it would seem that the Ordinance gives the Commissioner the same powers in relation to games for persons under 16 as it does in relation to games for those of 16 and above. Obviously, the Commissioner would be expected to exercise his powers differently in respect of the different age groups. The distinction it seems to me must stem from the Ordinance as a whole. There is a clear intention in the Ordinance that those under 16 should be segregated and protected. In this respect mention has already been made of section 20 which makes it an offence for somebody who is 16 or older entering an under 16 game centre.

28. The judge's reasoning with respect to the exercise of the powers under the Ordinance can be summarised as follows. Article 16 contained in section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 protects the freedom of expression. The judge noted that that is a qualified right and may be subject to restrictions that are provided by law and are necessary, amongst other reasons, to protect public health or morals. The Obscene Articles Tribunal ("OAT") constituted under the Control of Obscene and Indecent Articles Ordinance, Cap. 390 ("the COIA Ordinance") had exclusive jurisdiction to determine whether an article was obscene or indecent. It was noted that under the COIA Ordinance obscenity and indecency included violence. Indecent articles were those which were unsuitable to be published to a person under 18.

29. The judge noted that a video game was an article which came within the meaning of the COIA Ordinance. Both under the COIA Ordinance and the Film Censorship Ordinance, Cap. 392 there are statutory criteria laid down which are required to be considered in determinations under those ordinances.

30. In coming to his conclusion, the judge considered that in respect of persons who had attained the age of 16 the only basis upon which the Commissioner could exercise a power of censorship was to impose conditions under his powers under section 5(3) of the Ordinance. The judge considered that broad though those powers were they did not give the Commissioner power to prevent persons who had reached the age of 16 viewing or playing games which the Commissioner considered were morally unsuitable. In respect of games which the Commissioner considered were obscene or indecent he had sufficient powers under section 13 of the COIA Ordinance to submit the game to the OAT to determine the matter. The judge went on to observe that in his view there may well be a conflict if a game were to be considered obscene by the OAT and yet the Commissioner were to approve a game for centres catering to those who were 16 or over. In respect of games which were considered unsuitable because they might promote undesirable traits in young persons, for example, a desire to gamble on horse racing, the judge said at paragraph 26:

"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."

This appeal

31. In considering the vetting criteria which the Commissioner applies in respect of games, clearly violence and sexually explicit features would fall within the same category since they come within the broad ambit of obscene and indecent articles under the COIA Ordinance. The gambling element would be a separate element which is not covered under that ordinance. Finally, there is a question of safety of the games for players and the public.

Obscene and indecent matter

32. In relation to the first category of items, namely, games which contain elements of violence or images which are sexually explicit, it seems to me that, as suggested by Mr Pun for the applicant, in the course of argument, it would be unobjectionable if the Commissioner were to impose a condition under his powers under section 5(3) of the Ordinance to the effect that no obscene games should be available in a games centre and that no indecent games could be viewed by those under the age of 18. A condition of that nature would, in effect, be a condition which would require the licensee to comply with the general law. It would then be up to the licensees of the game centres to determine how, if at all, they would arrange matters to be able to make use of games which had elements of indecency. A breach of such a condition would mean that the Commissioner could use his powers in relation to revocation, suspension or renewal of the licence.

33. Although, the constitution and operation of the Advisory Panel was not the focus of detailed argument, nevertheless its existence does call for some consideration. The Commissioner has adopted a system of vetting in a way which, doubtless, was hoped would be fair, I consider that, unfortunately, there are some aspects which call for comment. The Advisory Panels, which have been referred to above, are not provided for in the Ordinance. There is no statutory criteria as to who may be appointed to such a panel. Although the reports of the views expressed by the panel are considered by officials in the office of the Commissioner at three levels, it still would seem that the views expressed by the panel carry considerable weight. Again, there is no statutory criteria by which the Advisory Panel must judge the games. There is no opportunity for interested parties to make representations. The decisions of the panel members are not open to any appeal or judicial review. In contrast, those dissatisfied with a decision of the OAT are able to challenge a decision relating to obscenity or indecency. In the present situation if the Advisory Panel expresses views that a game is indecent there is nothing that can be done about correcting their view. The views expressed by the panel must be considered important otherwise the panels would not remain in existence. Their views are part of the decision making process. On the other hand, it is not a situation where the Commissioner has abdicated his duties to the panels. Indeed, there are indications in the material before the court that the tape containing the game being reviewed is passed with the memos, or at least is available to the Senior Licensing Officer and the Assistant Commissioner. Moreover, the memos indicate that the decisions are discussed by those persons. I regret to have to say that, in the present statutory regime, I consider that the existence of Advisory Panels is undesirable and should be unnecessary. What is, perhaps, more relevant is that this attempt by the Commissioner to introduce some public participation in the decision making process, laudable though it may be, cannot render valid an exercise of a power which is in excess of the power given by the Ordinance.

34. Although Mr Westbrook argued that the imposition of the Commissioner's standards was justified in the "public and social context", that was not amplified. In my view, when considering the interpretation of the Commissioner's powers in relation to game centres that are licensed for those who are 16 and over the condition imposed must not be unreasonable and in relation to the exercise of the powers granted under the licence of the licensed premises qua licensed premises and in relation to the public interest. Although as Lord Greene has pointed out, it is not for the Court to impose its own standards, the question is whether it is appropriate for the Commissioner to impose standards relating to indecency and obscenity, outside the framework of the COIA Ordinance.

35. I find myself in agreement with Hartmann J that it is unreasonable for the Commissioner to impose his own views in this respect. The public interest is adequately catered for by the COIA Ordinance. There are criteria laid down by the statute. There is a mechanism for the appointment of those who are charged with determining whether an article is obscene or indecent. There is a proper mechanism for representations to be made and for appealing the decisions of the OAT. These are absent in the arrangements devised by the Commissioner, although it can be seen he has tried to involve the public in the process.

36. The extent to which the Ordinance has provided policy objectives is very minimal. The broad terms of section 5(3) do not, as such, indicate policy-making authority in the Commissioner in respect of standards of decency and obscenity. The policy of the law, as expressed in the COIA Ordinance, is that adults over the age of 18 may have access to indecent material. Violence comes within the definition of indecency. The question then arises as to whether the terms of the Ordinance permit the Commissioner to make policy in this respect which goes beyond the clear policy laid down in the COIA Ordinance. In my view it does not.

37. In determining whether the power exists it is also relevant to consider how it is to be implemented. Although the Commissioner has introduced the Advisory Panel in an attempt to reach unbiased decisions, as explained, this informal body is no substitute for proper procedural safeguards to ensure due process and unbiased decision-making. Such procedural safeguards do not appear to be contained in the Ordinance. Although a right of appeal is given under section 11 of the Ordinance in respect of decisions under section 5, it is doubtful whether the disapproval of a video game would be a decision which could be the subject of an appeal. In normal circumstances the video game is submitted by the manufacturer or importer or seller of the game. The licence that is relevant under section 5 is a licence of the licensee of the relevant amusement game centre. It would only be the licensee of the game centre who would have a right of appeal.

38. The judge had resort to Article 16 of the Bill of Rights. In my view consideration of that provision serves to confirm the position that as regards those who are 18 and older the imposition of conditions which amount to censorship of the video games according to guidelines of decency and obscenity devised and enforced by the Commissioner is unwarranted and hence unreasonable.

39. If the Commissioner considers that a game is objectionable because of the inclusion of violence, sexual explicitness or other reasons why it would be obscene or indecent, there would be nothing to prevent the Commissioner either submitting the game to the OAT or even causing a prosecution to be brought under the COIA Ordinance. Even if the Commissioner simply indicated his views to the manufacturer or supplier of the game, the game could then be submitted to the OAT by that party. As things stand at present, however, I do not consider that the Commissioner is entitled to impose his views by restricting the permitted games to a list which he compiles.

Gambling

40. It is difficult to see how any of the games played in a game centre could constitute gambling as such. The Commissioner has, however, purported to prevent the use of games which might be considered to encourage gambling. Whilst this court has not seen or considered the game "Tai Play", it would seem a little surprising that a "matching" game were objectionable simply because mahjong tiles were used. As already noted, the judge considered that this was an infringement of the right of freedom of expression.

41. In respect of gambling, it is to be noted that although Section 3(1) of the Gambling Ordinance Cap.148 makes gambling illegal, that provision is subject to a number of exceptions. Almost no newspaper is published in Hong Kong without reference to horse racing and mahjong is a feature of everyday life. Indeed, section 3(3) and (4) makes clear that amongst other games mahjong may be played, for example, in a restaurant. This then raises the question as to why people who are over 18 should be protected from "elements of gambling" as opposed to being prevented from gambling as such. If mahjong tiles are simply being used in a matching game, whether it be a "spot the difference" or a "memory" type of game one cannot see what is objectionable. The mahjong tile is an everyday artifact and it would na?ve to think that children in Hong Kong were unfamiliar with them.

42. In any event, I find it difficult to understand why it would be objectionable to have games which depict elements of gambling when horse racing and the gambling associated with it are commonly seen on television and the subject of radio programmes in Hong Kong. For those over 18 access to gambling, whether it be at the racecourses or off course betting centres, is readily available.

43. Even if the Commissioner were to put a condition in the licence which related to games which depicted elements of gambling I do not see how that could be any more justified than if he were to put a restriction on games which contained elements of other matters of which he disapproved.

Public safety

44. The question of public safety is a matter which can be controlled as a matter of a condition under section 5(3) of the Ordinance. I see no reason why adequate conditions cannot be imposed under a licence which would ensure safety without necessarily any game being specified in the licence or under documents referred to in the licence.

The Appeal Board decision

45. As already noted, after the notice dated 16 July 2001 from the Commissioner informing the applicant that the licence was suspended for 14 days, the applicant appealed to the Amusement Game Centres Appeal Board. The hearing took place over two days and the decision was given on 3 July with reasons handed down on 30 July 2002. That decision was unsatisfactory in a number of respects. The judge below had no hesitation in coming to the conclusion that in some instances the Appeal Board had put the burden of proof on the wrong party. More than that it would appear that there were absent many findings of fact by the Appeal Board and, indeed, the Appeal Board did not consider all the complaints which the Commissioner had found against the applicant and which were the subject of the appeal.

46. Mr Westbrook SC, on behalf of the Commissioner, did not seek to uphold the decision of the Appeal Board. He did, however, tentatively suggest to this court that an indication might be given as to the burden of proof. In view of the fact that the Appeal Board's decision is not a matter of issue between the parties, and, therefore, there has been no full argument on the matter, I consider that this court should decline to express any views on the question of the burden of proof. It would be highly undesirable for this court to express views which would be little more than an academic exercise. Outside the specific factual context whatever is said might be open to misinterpretation. Consequently, argument was not heard on the subject. The judge's decision quashing the decision of the Appeal Board should stand as such.

Conclusion

47. In the circumstances, this appeal should be dismissed and there should be an order nisi of costs in favour of the applicant.

Hon Le Pichon JA:

48. I agree with the judgment of the Vice-President.

Hon Yuen JA:

49. I respectfully agree that the appeal should be dismissed and would only wish to add the following comments.

50. Where an authority seeks to restrict what materials people can see and to impose criminal penalties on persons making available materials not complying with those restrictions, it can only do so under clear authority of law.

51. Clear authority is given in the Control of Obscene and Indecent Articles Ordinance (COIA Ordinance) passed in 1987 and the Film Censorship Ordinance passed in 1988. It is not disputed by Mr Westbrook SC that at least the COIA Ordinance applies to games in amusement games centres.

52. Therefore the question in this appeal is whether it is clear from the Amusement Games Centres Ordinance (AGC Ordinance) - passed in 1993, after the COIA Ordinance - that the legislature intended the Commissioner to have censorship powers additional to those under established censorship legislation. (As for the fact that the AGC Ordinance only differentiates between those under 16 and those aged 16 and above, whereas different age grouping is used under the COIA Ordinance, it would be up to the licensees to ensure compliance with the general law at the premises under their control).

53. Mr Westbrook SC relied on two provisions of the AGC Ordinance, s.5(3) and s.5(7), which he said were clear enough to authorize the Commissioner to prohibit games which are perceived to have failed to meet standards of morality and decency set by him (after consulting members of a panel, the establishment of which - unlike the panel in the COIA Ordinance - was not indicated under the statute).

Section 5(3) AGC Ordinance

54. Section 5(3) AGC Ordinance provides that 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".

The reference to "the operation, keeping, management or other control of the amusement game centre" plainly refers to control of the premises by the licensee, as it tracks the language of s.4.

55. The question is whether the wording of s.5(3) clearly authorizes the Commissioner to exercise censorship over the "moral character" of the contents of the games offered, by way of including in the licence a condition in effect requiring the contents of the games to be approved by him first.

56. I am not persuaded that s.5(3) of the AGC Ordinance authorizes the Commissioner to impose censorship under cover of an unspecific power which was intended to regulate the management of premises. By way of an analogy, it is as if a restaurant licensing authority is seeking to exercise control over the food served, by including in the licence a condition requiring the ingredients of each item on the menu to be approved by him first. In the absence of clear language, and given that public morals are already protected by the COIA Ordinance, I am not persuaded that s.5(3) gives the Commissioner such authority.

Section 5(7) AGC Ordinance

57. Mr Westbrook SC also referred to s.5(7) AGC Ordinance, which provides

"A licence granted under this section shall -

...

(c) authorize the licensee to operate an amusement game centre -

...

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

as shall be indicated therein."

I respectfully agree with the judgment of the Vice President that the words "type of games" referred to in s.5(7)(c)(ii) only mean "categories of games" and cannot be read as "individual games". Examples of types or categories of games would include games played in the different ways set out in s.2(1) AGC Ordinance: e.g. (a) mechanical games, (b) electrical/electronic games and (c) games involving chance.

58. I find it difficult to see how it can be said that the words "type of games" enable the Commissioner to control the games offered by reference to the manner in which contents are depicted.

59. The issue may be tested this way. Game (A) is an electronic shooting game where simply a score is recorded when the target is hit. Game (B) is also an electronic shooting game where the target is hit in the same way as Game (A), but excessive violence is shown on the screen when the target is hit. It seems to me that both games are within the same "type of game", and if "electronic shooting games" as a "type of games" are authorized, s.5(7)(c)(ii) does not authorize the Commissioner to approve Game (A) but to prohibit Game (B). In my view, the excessive violence shown in Game (B) could be curbed only by an appropriate reference to the Obscene Articles Tribunal under the COIA Ordinance.