EASTWEEK PUBLISHER LTD. and Another v. OBSCENE ARTICLES TRIBUNAL

Obscene Articles Tribunal
Appeal 6/1995

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. On 22 June 1995, the Obscene Articles Tribunal, following a reference to it under section 29 of Control of Obscene and Indecent Articles Ordinance (Cap 390), ruled that certain articles were neither obscene nor indecent. The record of the proceedings following this ruling reads -

"Mr Tam, Crown Counsel, objects to application for costs to be made against Crown as these articles were referred to Tribunal from Magistrates Courts for determination under section 29.

Presiding Magistrate: The application for costs against Crown is refused.

Reasons for refusal to award costs against the Crown.

The Defendants were charged under section 24(1) of the Control of Obscene and Indecent Articles Ordinance and the Magistrate referred the articles concerned to OAT for determination under section 29. The OAT is involved only in making a determination after which the articles concerned are returned to the Magistrate with a certificate of determination issued by OAT under section 33(2). The OAT determination is part of the process of the two cases being tried in the Magistrate's Court. The application for costs should be made in the Magistrate's Court at the conclusion of the proceedings there."

2. The appellants appeal against this order on the ground that, essentially, the Presiding Magistrate was wrong in law to decline jurisdiction to award costs. Although the Presiding Magistrate made an order as to costs, refusing to award costs against the Crown, it is clear from his reasoning that he did not consider the merits of the application, but decided that the application for costs, presumably including the costs before the Tribunal, should be decided by the Magistrate at the conclusion of the criminal proceedings before him.

3. Section 29 of the Ordinance appears in Part V and provides that the Tribunal shall, amongst other things, have exclusive jurisdiction to determine whether any article is obscene or indecent. Where in any civil or criminal proceedings before a court or a magistrate, the question as to whether an article is obscene or indecent must be referred to the Tribunal, and "the parties to those . . . proceedings . . . may appear and be heard at any hearing of that Tribunal relating to that reference.".

4. Section 11(a) of the Ordinance reads -

"A Tribunal -

(a) when exercising its jurisdiction under Part V shall have the powers of a magistrate under the Magistrates Ordinance (Cap. 227) and for that purpose references in that Ordinance to a magistrate shall de deemed to include references to a Tribunal; . . .".

5. Section 44 of the Ordinance provides -

"The Chief Justice may make rules relating to the practice and procedure to apply to proceedings before a Tribunal, or magistrate, or in any court, under this Ordinance and to appeals under this Ordinance and, in particular, may make rules to provide for -

(h) the award, taxation and recovery of costs relating to any proceedings in a Tribunal."

6. The Chief Justice did make such rules, called the Control of Obscene and Indecent Articles Rules, and provided, in rule 9, that -

"The Tribunal may award costs to and against any party to any proceedings and may order that those costs be taxed in accordance with the District Court Civil Procedure (Costs) Rules (Cap. 336 sub. leg) as in force on 1 July 1987."

7. Mr Tam argued that the Tribunal has no power to award costs other than as an exercise of the powers of a magistrate under section 11(a) of the Ordinance. I do not accept this. That reasoning, as Mr Tam appreciated, might lead to the conclusion that the Tribunal would have no power to award costs at all against the Crown because the magistrate's power to award costs in this situation is exercisable only when he dismisses the complaint or information. The legislature clearly contemplated that the Tribunal would have the independent power to make awards as to costs, and delegated to the Chief Justice the power to make rules governing these awards.

8. In my view, it was not a proper exercise of this jurisdiction to award costs for the Tribunal to 'pass the buck' to the magistrate hearing the complaint. In any event, it is very doubtful, in my judgment, that the magistrate hearing the complaint has any jurisdiction to deal with the costs before the Tribunal. My reading of the magistrate's powers regarding costs is that they relate to the costs before him, not the costs in some other court or Tribunal.

9. Accordingly, it is my view that the Presiding Magistrate made an error of law in deciding not to consider the question of costs on the merits, but to leave this to the magistrate hearing the complaint. The Tribunal is to re-hear the application for costs, and determine it on the merits.

10. The appellants have been successful in this appeal. There seems no reason why costs should not follow the event. Accordingly, I make an order nisi that the appellants are to have their costs.