MING PAO NEWSPAPERS LTD v. OBSCENE ARTICLES TRIBUNAL

HCAL 96 & 101/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 96 OF 2007

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AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 101 OF 2007

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BETWEEN

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(HEARD TOGETHER)

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J U D G M E N T

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1.  There are two applications for judicial review before me. HCAL  101 of 2007 is an application taken out by the chief editor [“The Editor”] of the Student Press, CUHK, monthly periodical published by the students of the Chinese University. In 2006, the editorial board decided to add a new section to the periodical called the “Sex/Gender Column”. According to the Editor, the purpose of this column is to provide a platform for unconventional and more critical attitude for the discussion and study of sex/gender in Hong Kong.

2.  The Periodical is also available on the internet. And the target readers are university students in Hong Kong. It is not clear from the evidence whether the Periodical is available to other members of the public.

3.  In the February 2007 Periodical, the following items were published in the Sex/Gender Column at p.23 to 25,

(a)     Questionnaire on the Sex/Gender Column [“the February Questionnaire”];

(b)    Readers’ response;

(c)     Stephy’s Letterbox;

(d)    Remark;

(e)     In love with the night of CU;

(f)     February Activities of Zi Teng.

There were some artworks consisting of photographs as well as some drawings.

4.  The whole February 2007 Periodical had 36 pages. Apart from the Sex/Gender Column, there were other columns containing articles on other topics. Though it is not the function of this court to usurp the role of the Obscene Articles Tribunal, it is plain and obvious that most of those other articles cannot remotely be regarded as indecent.

5.  In the March 2007 Periodical, the Sex/Gender Column at p.26-7 had two items,

(a)     Response to the February Questionnaire;

(b)    Response to the Reader on the article “Satisfaction”.

6.  Like the February 2007 Periodical, the whole March 2007 Periodical had 36 pages consisting of many other articles that cannot remotely be regarded as indecent.

7.  In early May 2007, the Sex/Gender Column of the Student Press, CUHK became a topic of public discussion and the contents of the February 2007 Periodical and the March 2007 Periodical were widely reported in the media.

8.  On 9 May 2007, the Television Entertainment Licensing Authority [“TELA”] submitted two applications to the Obscene Articles Tribunal [“the Tribunal”] for classification in respect of,

(a)     p.23-25 of the February 2007 Periodical (Case No.OAGO 93/2007);

(b)    p.26-27 of the March 2007 Periodical (Case No.OAGO 94/2007).

9.  On 10 May 2007, TELA submitted two further applications to the Tribunal for classification in respect of the internet version of,

(a)     the January 2007 Sex/Gender Column (Case No.OAGO 97/2007);

(b)    the February 2007 Sex/Gender Column (Case No.OAGO 104/2007).

The internet versions (as shown in the printout thereof produced as exhibits “TSH-3” and “TSH-4”) do not have any drawings photos or artworks.

10.  On 12 May 2007, the Editor submitted the whole February 2007 Periodical and the whole March 2007 Periodical to the Tribunal for classification (Case Nos.OACM 85 & 86/2007).

11.  The Tribunal made an interim classification that these articles were indecent articles on 10, 11 and 15 May 2007 respectively and notices were given by TELA to the editorial board and the Registrar on 15 and 17 May 2007 respectively.

12.  On 19 May 2007, the Editor gave notice to require the Tribunal to review the interim classifications. The hearing was scheduled to take place from 6 to 13 July 2007.

13.  On 6 July 2007, the hearing was adjourned sine die in view of the Editor’s intended application for judicial review.

14.  Turning to the other application, HCAL 96 of 2007. The applicant [“Ming Pao”] in that application is the publisher of a well-known newspaper in Hong Kong. After the Student Press CUHK attracted the attention of the mass media in early May, Ming Pao published in a supplement of the 13 May 2007 newspaper several articles relating to the subject, three of them appeared at p.1 to 5 of the supplement.

15.  Of the three articles, the one at p.2 to 3 of the supplement was a parody of the February Questionnaire with 3 fictitious responses by 3 stereotype respondents. According to Ming Pao’s case in the application, the purpose of the article was to show and invite its readers to reflect on the different attitudes of people to sex and what they considered as deviant sexual behaviour. It also served as a critique not only of certain attitudes in the society but also of the February Questionnaire. At p.2, some of the drawings originally published together with the February Questionnaire in the Student Press, CUHK were reproduced in an edited manner. The whole of p.23 of the February 2007 Periodical was reduced in size and reproduced on the same page as well.

16.  The other articles were,

(a)     An introductory editorial at p.1 of the supplement with an edited version of the February Questionnaire in which all words or phrases related to sex were cut out and placed randomly below the questionnaire and in their places some other words of no relevance to sex were placed by the side of the questionnaire;

(b)    Another article “If the Sex Page Incident took place at the University of Hong Kong” was at p.4-5 of the supplement with an introductory editorial. The main theme was a critique of how the Chinese University handled the incident. 

17.  On 15 May 2007, TELA submitted p.1-5 of the supplement to the Tribunal for classification. On 22 May 2007 the Tribunal made an interim classification that p.1-5 was indecent in case No.OAGO 106/2007. Ming Pao was notified accordingly.

18.  On 25 May 2007, Ming Pao sought a review and a hearing was fixed. In the light of the development in the review on the application by the Editor, the Tribunal on the application of Ming Pao also adjourned the review pending the outcome of this judicial review application.

The legal requirements for interim classification of an article

19.  In view of the submissions before me, the crucial issue is what the law requires the Tribunal to do before it could validly come up with an interim classification.

20.  I wish to dispose of an argument on the nature of the interim classification before I address the crucial issue. In my view, the nature of such classification provides the context under which the legal requirements should be considered.

21.  Mr Zervos SC appearing on behalf of TELA submitted that an interim classification is,

(a)     The expression of an opinion by the Tribunal as opposed to a determination, see Section 8(2)(b) of the Control of Obscene and Indecent Articles Ordinance Cap.390 [“the Ordinance”];

(b)    An administrative process instead of a judicial process, see Three Weekly Ltd v Obscene Articles Tribunal [2007] 3 HKLRD 673;

(c)     Interim in nature with the possibility of it being changed on a full hearing, see Section 15 of the Ordinance.

22.  The nature of classification proceedings has been extensively considered in Three Weekly Ltd v Obscene Articles Tribunal [2007] 3 HKLRD 673 and there is no need to repeat the same exercise in this judgment. I accept Mr Zervos’ propositions (b) and (c). But it should also be noted that even a classification made on a full hearing is susceptible to reconsideration under Section 17 of the Ordinance, and as such not as final as it appears to be.

23.  I do not think it is too useful in the present context to stress that a classification, whether interim or not, is an expression of opinion. I would readily accept that classification is an expression of opinion which, as I myself had said in Three Weekly Ltd v Obscene Articles Tribunal HCAL 42 of 2003, 29 June 2006, should not have any bearing on any subsequent legal proceedings which requires a determination of whether the same article is indecent or obscene. Nonetheless, as I put to Mr Zervos during arguments and he also fairly accepted, a classification comes with it certain legal consequences even though it is only an interim classification. Most importantly, subsequent publication of an article classified as either Class II or Class III would attract criminal sanctions under Sections 25 to 27 of the Ordinance.

24.  Thus, for the purposes of Sections 25 to 27, a classification is determinative. To that extent, a classification is a decision, albeit a decision in an administrative process.

25.  As I see it, the dichotomy pinpointed in Three Weekly Ltd v Obscene Articles Tribunal [2007] 3 HKLRD 673 is between classification under Part III of the Ordinance as a decision in an administrative process on the one hand and a determination under Part V which is part of the judicial process.

26.  In substance, it matters not whether one labels a classification as a decision or determination although for the sake of avoiding any confusion with determination under Part V I will continue to refer to it as a decision.

27.  For present purposes, the pertinent point is that a classification is not a mere expression of opinion. It is a decision which has legal significance for people dealing with a classified article. Even for an interim classification, it is an offence to publish the article if it has been classified as Class III, see Section 25 of the Ordinance. Because the definition of classification under Section 2 includes interim classification, as for article classified as Class II on interim basis, it can only be published in accordance with conditions imposed by the Tribunal, see Section 27. Likewise, the obligation to give notice of the classification under Section 18 applies equally to interim classification.

28.  Further, an interim classification is deemed to be the classification by virtue of Section 15(5) if no person seeks a review under Section 15(1) of the Ordinance within 5 days of the interim classification taking effect, viz. the date when notice of classification is given by the Registrar, see Section 4.

29.  Given that classification, including interim classification, is an act with legal significance, it must be made in accordance with the substantive requirements of the law in order to attract such legal consequences. By substantive requirements, I refer to the proper approach prescribed by law that the Tribunal must follow in order to come to a valid decision on classification as opposed to the procedural requirements laid down for arriving at, recording and notification of its decision. For the latter, there are cases where procedural defects merely render a decision irregular as opposed to being null and void. Such defects could be cured in a subsequent review. On the other hand, substantive defects would invariably render the decision null and void because the decision maker (or the Tribunal in the present case) was simply not carrying out the task entrusted to him by the statute.

30.  What are the substantive requirements that the Tribunal must follow before it can validly make an interim classification? In my judgment, the answer lies in Sections 10 and 14(3) of the Ordinance. The guidance under Section 10 directs the Tribunal to have regard to several specified criteria and that must be applied even in the making of an interim classification. For present purposes, as it will be shown later in this judgment, I shall only highlight that the Tribunal is required under Section 10(b) to have regard to the dominant effect of an article and under Section 10(e) the Tribunal must ask itself whether the article has an honest purpose. 

31.  It has been decided in previous cases that the Tribunal must have regard to the context as shown in the article as a whole before it can properly make a classification, see Pao Wai Louis v Obscene Articles Tribunal [1995] 1 HKC 51; Ming Pao Newspaper Ltd v Commissioner for Television and Entertainment Authority OAT Appeal No.1/97, 12 May 1997. In Obscene Articles Tribunal v Freeman Holdings Ltd [1993] 2 HKC 300, the Court of Appeal held at p.304C that for the purpose of the Ordinance an article must mean a thing which is complete in itself having regard to all the circumstances.

32.  At the same time, the dominant effect and the character of an article has to be determined by reference to the article itself and other issues in a series of the same comic book, even though they formed part of the story, is not admissible, see Sham Kow-ling v Obscene Articles Tribunal  (1992) 2 HKPLR 669. In Freeman Holdings Ltd, at p.304B the Court of Appeal agreed with the proposition that the Tribunal was not obliged to have regard to other discrete articles contained in the same newspaper, magazine, journal or book in making the classification.

33.  In Three Weekly Ltd v Obscene Articles Tribunal HCAL 42 of 2003, 29 June 2006, at para.24, I held that the relevant context in which photographs were produced in an article is to be gathered from how a reasonable member of the community would read the article and in most cases the article itself would supply the answer.  

34.  To perform its task properly, the Tribunal must first identify the article. It is trite that one magazine or periodical could contain different articles with different dominant effects, purposes and characters. When different articles are contained in the same section of a magazine, that fact alone would not render them a composite article with one dominant effect and one single purpose. To classify different articles as if they were one composite article with only one character for the purpose of classification is, in my view, a failure to apply the guidance under Section 10, in particular Section 10(b) and (e) properly. If one were to read three different articles as if it were one composite article (insofar as this can be done), there would be distortions as to the dominant effect and purpose of at least one or two articles.

35.  Take p.1-5 in the supplement in Ming Pao’s case as example, irrespective of the debate as regards whether the parody of the February Questionnaire at p.2-3 is indecent by reason of the reproduction of certain drawings taken from the February Questionnaire, it is a gross distortion of the character of the articles at p.1 and p.4-5 to treat the drawings at p.2-3 as part of those two articles and make a classification accordingly.

36.  In my judgment, before one can treat several items as one composite article, there must be sufficient nexus between them to indicate to a reasonable reader that those items were meant to be read as one single article with one dominant effect, purpose and character. A drawing, picture or photograph adjacent to some text for the purpose of illustration or graphic depiction of some points made in the text is a good example. On the other hand, two articles in the same periodical on the same topic by two different authors are not to be treated as one composite article unless the contents of the two articles suggested to a reasonable reader that the two articles were intended to be read as one piece of work with one dominant effect and purpose.   

37.  Mr Shum submitted that an article must be examined in its proper and true context and extracts or isolated pages and paragraphs may present a distorted impression. I agree. But I do not think it follows from this submission that one must look at the whole publication as one single article for the purpose of the Ordinance. The Ordinance provides for classification of an article, not a publication. If a publication consists of more than one article, the Tribunal’s task remains one of classification of an article and any attempt to classify such a publication as a whole must be resisted because that would not be a proper exercise in accordance with Section 10.

38.  Counsel posed an example for consideration: a doubtful photograph printed on a serious newspaper for a particular honest purpose will give a very different impression from the same photograph printed on a pornographic magazine. I do not find this to be of much assistance. The character of the photograph is to be considered together with the article in which it is printed. The apparent purpose of the publication of the photograph will appear from the article, be it an article in a serious newspaper or a pornographic magazine. The Tribunal has to consider whether that purpose is an honest one and one should primarily read what was said in the article to see whether the photograph honestly served the purpose of that article, see Ming Pao Newspapers v Commissioner for Television and Entertainment Authority  (1997) 7 HKPLR 314 at p.321. See also my construction as regards the meaning of honest purpose under Section 10 in The Sun News Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority HCAL 50 of 2006, 13 Oct 2006 at paras.22-24.

39.  The mere fact that it is an article in a serious newspaper or a pornographic magazine should not be of much significance. It may not be a desirable state of affairs but it is a reality in our society: indecent materials can be found in serious newspaper and innocuous materials can be found in pornographic magazine. To label a publication as serious or pornographic before one apply the guidance in Section 10 to an article carry with it the risk of making a classification out of prejudice instead of following the statutory guidance faithfully.  

40.  Indeed, if one takes that approach, one must inevitable make a classification of the whole publication as opposed to the separate articles in it and there could be unsavoury argument based on the dominant effect of the whole publication (e.g. newspaper) to tone down the undesirable effect of an indecent item in it. I do not think this accords with the intent of the legislature. Nor do I understand that to be in line with current practice in the Tribunal.

41.  If a submission for classification is made in respect of more than one article, the Tribunal should refuse to entertain the application for classification because the statutory scheme envisages that a submission can only be made in respect of one article only. In other words, a submission in respect of several articles is not a proper submission under Section 13. This is the only proper course for the Tribunal to follow because otherwise it would not be possible for the Tribunal to apply the criteria under Section 10(b) and (e) correctly. 

42.  Whether a submission is made in respect of material that is capable of being regarded as one article is a question of law. Hence, it should be decided by a presiding magistrate under Section 7(3) of the Ordinance. I am aware of the duty to give reasons under that sub-section and the heavy workload of the Tribunal in its classification function and the requirement under Section 14(1)(a) to make an interim classification within 5 days. However, I think cases in which this point shall arise should not be frequent. For most cases where the submission is clearly made in respect of one article, the point does not arise and no decision on point of law needs to be made by the presiding magistrate. For cases where the point arises, usually it would be quite plain why the submission is made in respect of more than one article and very brief reason will suffice.

43.  Having said so, I acknowledge that there would be some rare cases in which there could be genuine grounds for debate whether two items were intended to be read as one single article with one dominant effect and one single purpose. In that situation, it would not be appropriate to dispose of the submission on the ground that it is incapable of being read as one article. The question becomes one of mixed fact and law. It has to be decided by the Tribunal instead of being decided by the presiding magistrate alone as a point of law. The presiding magistrate will need to direct the members of the Tribunal on the correct approach in law on the criteria for deciding whether the items can properly be regarded as one article and the Tribunal shall have to decide the issue collectively. For those rare cases, it is likely that the Tribunal should hear from the authors or publishers (or at least give them an opportunity to be heard) before it can come to a conclusion. Thus, it is most likely that the Tribunal cannot make an interim classification and matter will have to be proceeded to a full hearing pursuant to Section 14(1)(b).

44.  In making an interim classification, the Tribunal consists of a presiding magistrate and at least two adjudicators and the decision shall be a decision of the majority, see Section 7 of the Ordinance. Therefore, after identifying the article, there must be a meeting of the mind of at least the majority in the Tribunal by following the guidance under Section 10 before a valid classification can be made.

45.  By way of illustration, in a usual case where three members sit in the Tribunal in making an interim classification, each member may have a different reason for saying that an article is indecent or obscene and at the same time each disagrees with the reason put forward by the others. In that scenario, in effect the majority decision would be 2:1 against classifying an article to be indecent or obscene for each reason put forward by each member. The proper outcome should be a classification that the article is neither indecent nor obscene.

46.  Thus, even though Section 14(3)(a) of the Ordinance provides that the Tribunal is not required to give any reasons for any interim classification, it is still necessary for the members to have their reasons and to articulate the same in the process of deliberation before concluding on a classification based on a reason adopted unanimously or by majority.

47.  In other words, the exemption from the duty to give reasons is not a mandate for the Tribunal for not having a reason in the decision making process. Otherwise, the process will be arbitrary and the Tribunal will not be following the guidance under Section 10 and the majority rule under Section 7.

48.  The duty to identify the part of the article which causes the obscenity or indecency under Section 14(3)(c) should be considered in the light of the above analysis. It follows from the above discussion that to have a valid decision, at least a majority of the members of the Tribunal have to agree on the part of the article which causes the obscenity or indecency.

49.  Mr Zervos submitted that the duty under Section 14(3)(c) can be satisfied by the members of the Tribunal identifying in their mind the part which cause the obscenity or indecency. Counsel also submitted that mental process must have occurred before each member could come to an interim classification. Thus, it is beyond dispute that the duty under Section 14(3)(c) had been complied with.

50.  With respect, I cannot accept that contention. If counsel were right, Section 14(3)(c) would be otiose because a mental identification must have been done whenever an interim classification is made. In my judgment, an identification under Section 14(3)(c) has to be manifested in a physical form over and above the mere making of an interim classification. Metaphysical manifestation is not good enough.

51.  My interpretation seems to accord with the understanding of the Tribunal. In the non-statutory forms used by the Tribunal to record interim classification, there is a section requiring the members to fill in the following,

“In accordance with Section 14(3)(c) of the Control of Obscene and Indecent Articles Ordinance, Cap.390, the Tribunal identified the following part(s) of the article which caused the indecency / obscenity:”

52.  Another reason why I come to the above interpretation of Section 14(3)(c) is the majority rule laid down under Section 7. As explained, the members must come to a consensus at least by majority before a valid decision can be reached even for interim classification. If different members have different views on the part(s) that caused the indecency / obscenity in the article, there is no agreement and the Tribunal should have classified the article as neither indecent nor obscene. Thus, the members should set out their agreed view on identification required by Section 14(3)(c).

53.  Mr Chang SC contended that because the identification of the part(s) which caused the indecency / obscenity is very much an integral part of a classification, it should be included in the notice given by the Registrar under Section 19 of the Ordinance. Counsel further submitted that since a classification only takes effect upon notice being given, the failure to include the necessary identification in a purported notice renders the classification ineffective. Mr Shum adopted the same submission.

54.  With respect, this contention confuses the substantive requirement leading to a valid decision by the Tribunal with the formal requirement on the notification of such decision. Even though by section 4 of the Ordinance a classification cannot be effective without formal notice, it remains a valid classification after the Tribunal has made a decision in accordance with Sections 10 and 14(3). It must be noted that the duty to give notice rested upon the Registrar, not the Tribunal. The giving of notice is not part of the decision-making process.

55.  The contents of a notice are not prescribed by Section 19. The section only requires notice of classification to be given. I do not think it is correct to suggest that all process integral to the classification have to be set out in the notice. Whilst I accept an identification under Section 14(3)(c) is essential to the decision making process, it does not follow from such premise that the identification must be spelt out in the notice. The thinking process would also involve identifying the article, considering the article in accordance with the guidance in Section 10. These are also integral to the classification. If I accede to Mr Chang’s contention, all these would have to be set out in the notice under Section 19. Bearing in mind the manner in which the notice has to be published under Section 19(2), it would not be practical to set out all these details in a notice. Further, such a requirement is tantamount to a duty to give reasons which is explicitly negated by Section 14(3)(a).

56.  In my view, notice of classification means simply a notice of the decision in terms of classification, viz. whether the article is classified as indecent, obscene or neither. There is no additional requirement of stating the identification under Section 14(3)(c) in such notice.

57.  The same applies to the notice required to be served by the Registrar under Rule 7(2) of the Control of Obscene and Indecent Articles Rules.

58.  Counsel submitted that if the identification under Section 14(3)(c) is not set out in the notice under Section 19, it would be difficult for a party concerned (e.g. publisher of the article) to decide whether to require a review of the interim classification within 5 days as laid down in Section 15(1).

59.  Though I appreciate the practical consideration on the part of a party concerned, I do not regard such consideration as having a bearing on the correct construction regarding the contents of a notice under Section 19. In fact, the same point can be made regarding a need to spell out in such notice the reasoning process to facilitate the practical consideration on the part of a party concerned. Yet Section 14(3)(a) clearly pre-empts that.

60.  On a correct analysis, a Section 19 notice is not meant to be a document facilitating consideration as to whether a review should be required. Neither is an identification under Section 14(3)(c). The identification under Section 14(3)(c) is irrelevant in the subsequent review because the adjudicators should not be the same (Section 15(2)(b)) and the matter is to be considered afresh. The members of the Tribunal should apply their independent minds to the question of classification in accordance with the guidance in Section 10 in the full hearing, see Three Weekly Ltd v Obscene Articles Tribunal HCAL 42 of 2003, 29 June 2006, at Paras.58 to 60. The members are required to make a fresh identification of the part of the article which causes obscenity or indecency under Section 15(6). This should be done after giving party concerned a fair opportunity to be heard under Section 15(2)(a). Viewed in this light, it is quite possible that the identification under Section 15(6) differs from the identification under Section 14(3)(c).  

61.  Further, one must not assume a notice under Section 19 is the only means by which a party concerned can obtain information about the decision making process. The party can seek information through correspondence with the Tribunal. As the present case demonstrates, the Tribunal did respond to requests for information in a responsible manner and the non-statutory forms were produced through that channel. Though there is no specific statutory requirement for the production of such documents, such a duty can readily be implied from a duty to act fairly when a party affected by an interim classification wishes to challenge the same. As explained below, the non-statutory form used by the Tribunal to record the process is part of the record of the proceedings, as such should be disclosed when a decision is challenged by way of judicial review.

62.  Counsel made a point about the time limit for requiring a review. However, even if time has lapsed, a party concerned can rely on Section 17 to request a reconsideration of an interim classification that has become final under Section 15(5).   

63.  Hence, I do not regard the lack of reference to the identification under Section 14(3)(c) in a Section 19 notice as giving rise to any ground for challenging the validity of the interim classification.

64.  Having concluded that it is not necessary to set out the Section 14(3)(c) identification in a Section 19 notice, the next question is in the absence of any prescribed means to record the identification, how should it be done?

65.  Section 11(b) of the Ordinance provides that in the exercise of its classification function, the Tribunal may determine its own procedure. Under Section 11(c)(ii), the Tribunal is given the power to do all things reasonably necessary for the discharge its function. Thus, it is perfectly within the power of the Tribunal to devise a form for recording matters pertaining to proceedings for interim classification, including the proper discharge of its duty under Section 14(3)(c).

66.  As the materials before this court show, the Tribunal has been using such a form. In my judgment, an entry in such a form is a sufficient record of the discharge of the duty under Section 14(3)(c). 

Did the Tribunal comply with the substantive requirements of the law in making the interim classifications?

67.  The Tribunal proceeded on the assumption that whatever submitted was one article. In my judgment, this assumption is unsound. It is plain to me that for each submission under consideration in the present proceedings there are more than one article, each of them having a different dominant effect and purpose.

68.  Take the example of the Ming Pao supplement p.1-5, it is difficult to see how one can treat that as one article with only one dominant effect and purpose. If the real objection is the drawings in the February Questionnaire reproduced at p.2 (see the discussion below on the identification of the part which causes indecency), I find it incomprehensible how that should have a bearing on the dominant effect and purpose of the items at p.1 and p.4-5. If the common denominator of those pages were articles discussing the February Questionnaire or the Sex/Gender Column in the Student Press CUHK, I cannot understand why it should be confined to p.1-5 since there were other items in the Sunday supplement revolving around the same, see p.6, p.9, an item bearing the title “此風月不同彼風月”, “乜議員” at p.17. 

69.  The same can be said with regard to the submissions which are the subject matters of the Editor’s challenge.

70.  The Tribunal made the interim classifications without distinguishing different articles included in each submission. One interim classification was made for each submission. This immediately cast doubt on whether the Tribunal had acted in accordance with Section 10 of the Ordinance given the difficulty in pinpointing a dominant effect and purpose for the different articles included in each submission.   

71.  Such doubt is reinforced by the manner in which the Tribunal purported to identify the indecent parts.

72.  In the Ming Pao case, the Tribunal’s identification of the indecent part was recorded as follows,

“圖片,插下体”

In other words, the Tribunal did not find the text indecent.

73.  Such comments can only be referable to the reproduction of the drawings in the February Questionnaire at p.2. It could not have bearing on the two articles at p.1 and p.4-5.

74.  As far as the article at p.2-3 is concerned, the drawings were apparently reproduced to introduce the readers to the February Questionnaire as background information for the parody of the Questionnaire. The extracts of drawings with edition were reproduced as artistic illustrations.

75.  As pointed out by Ming Pao in the Notice of Application for Judicial Review, none of the illustrations was representations of male or female organ in realistic style. Rather they were close to graffiti art.

76.  With the benefit of the explanation of the drawings by a representative from the editorial board of the Student Press in a statement of 29 June 2007 submitted to the Tribunal for the purpose of the review, it is now clear that none of the drawings was representation of any male or female organ, whether in a realistic style or otherwise. Nor do the drawings depict any person actually engaging in sexual intercourse.

77.  Given the style of the drawings, bearing in mind that the Tribunal was not assisted by an explanation from the editorial board when it made the interim classification, it is understandable that the Tribunal misunderstood what the drawings were meant to convey. However, it is not entirely clear to me which drawings(s) the Tribunal was referring to when it said the drawing(s) depict “插下体”.

78.  More importantly, it is difficult to see how one can rationally conclude that the reproduction of the drawings and extracts at p.2-3 do not serve the purpose professed, namely as background and artistic illustration materials for the parody of the Questionnaire. It is also difficult to see how one can rationally conclude that the article at p.2-3 did not serve an honest purpose, viz. to show and invite the readers to reflect on the different attitudes of people to sex and what they considered as deviant sexual behaviour and obliquely as a critique not only of certain attitudes in the society but also of the way the relevant message was conveyed in the February Questionnaire.

79.  It is equally difficult to see how in these circumstances one can rationally conclude that the dominant effect of the article is not to be derived from the text which the Tribunal did not consider to be indecent as opposed to the drawings.

80.  I note, as I did in The Sun News Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority HCAL 50 of 2006, 13 Oct 2006, that none of the criteria set out in Section 10 is by itself conclusive. In other words, even though the dominant effect of the article is not indecent and it does serve an honest purpose, there can still be cases where the Tribunal comes to a conclusion that by reason of the indecent part as identified that article is not suitable to be published to a juvenile. But such cases should by their nature be rare and exceptional.

81.  I also bear in mind that the Tribunal was not obliged to give reasons for the interim classification. Therefore this court should not readily conclude that the Tribunal did not have proper ground to come to a particular interim classification.

82.  However, on the facts of the Ming Pao case, for reasons given above, there are sufficient grounds to justify this court to hold the view that the Tribunal must have failed to apply the Section 10 guidance properly in making its interim classification in case No.OAGO 106/2007.  

83.  Accordingly, that interim classification must be quashed.

84.  In the context of HCAL 101 of 2007, of the six decisions subject to challenge, the Tribunal only “identified” the indecent parts in one, viz.OAGO 93/2007. What was set out in the non-statutory record adopted by the Tribunal under the relevant column was as follows,

“圖片及文字”

85.  That was in respect of a submission by TELA regarding p.23-25 of the February 2007 Periodical. With respect, it is difficult to see how this can properly be regarded as “identification”. Such a general reference means nothing. It only paid lip service to the duty under Section 14(3)(c). If the Tribunal intended to refer to everything found on those three pages, it plainly cannot be right. The lower part of p.25 is an advertisement to enlist voluntary workers for an organization called 紫藤. How can one rationally consider that to be indecent?

86.  In the article at the upper part of p.25, irrespective of one’s view regarding the character of the other parts, I cannot see how one can rationally regard the last paragraph as indecent.

87.  Mr Shum referred to the photographs of people at p.23 as another parts where no rational Tribunal can come to a view that it is indecent. 

88.  Other examples can be given but it is not necessary to do so.

89.  It suffices to say there are sufficient defects in the decision making process as outlined above to warrant an inference that the Tribunal had failed to have proper regard to the guidance set out in Section 10 in coming to its decision in OAGO 93/2007. In other words, had the members of the Tribunal properly addressed their minds to the substantive requirements of the law, they would not have failed to notice that it is impossible to make an interim classification as if only one article had been submitted and they would not have failed to give a proper identification of the indecent parts as required under Section 14(3)(c).

90.  That interim classification has to be quashed.

91.  For cases OACM 85/2007 and OACM 86/2007, they were classifications regarding the submissions by the Editor in respect of the whole February 2007 Periodical and the whole March 2007 Periodical. The Tribunal only stated the following by way of “identification” under Section 14(3)(c) in both cases,

“Front Cover : (Class I) [circled] (Class II)

Back Cover  : (Class I)  [circled] (Class II)”

92.  It would seem that the Tribunal regarded the front covers and back covers of the two periodicals as neither indecent nor obscene. But these entries in the non-statutory forms do not convey any meaning concerning the part or parts identified as indecent. Insofar as it is suggested that the entries implied apart from the front and back covers, the rest of the periodicals were considered to be indecent, that plainly cannot be right. As I said earlier, there are many articles in those periodicals that cannot even remotely be taken as indecent. A tribunal holding such a view is plainly irrational. And I do not believe that to be the case here.

93.  What had happened was that the Tribunal had failed to perform its duty properly in terms of following the guidance under Section 10 and failed to comply with the requirement under Section 14(3)(c). The entries in the non-statutory forms cannot validly be regarded as identifications.

94.  Hence, the interim classifications in these two cases failed to satisfy the substantive legal requirements under the Ordinance. They must be quashed.

95.  For cases OAGO 94/2007, OAGO 97/2007 and OAGO 104/2007, the Tribunal simply failed to record anything under the column for Section 14(3)(c) identifications in the non-statutory forms. The Tribunal had put down the following under another column in the forms for recording the conditions to be imposed under Section 8(2)(c) for publication,

“詳细講述性行為的進行,已超乎了性知識”

96.  The same statement was repeated in the forms for all three cases. But the subject matters of all three cases are different. In each case, the submission was made in respect of more than one article. For my part, I have difficulties in relating this comment to p.26-27 of the March 2007 Periodical, the subject matter of case OAGO 94/2007.

97.  That statement is clearly not a condition imposed under Section 8(2)(c). But it is equally not an identification under Section 14(3)(c) and none of those appeared before me suggested otherwise. It may be that the Tribunal was trying to give reason for its classification though it was not obliged to do so. Given the brevity of the statement, it does not assist in terms of identification.

98.  Nor does it show that the Tribunal had properly performed its duty in accordance with Section 10. On the contrary, the statement suggests that the Tribunal adopted one single criterion, viz. the proper boundary of sexual knowledge (which is not a criterion in Section 10), for its consideration as opposed to the guidance under Section 10. It may be that the Tribunal can legitimately consider what reasonable members of the community can accept as moral, decent or proper by way of detailed depiction of sexual behaviour under Section 10(1)(a). But that should not be the only consideration.

99.  In short, the brief statements in the forms cannot dispel the inference that the Tribunal had failed to have proper regard to Section 10 in making the interim classifications in these three cases. They must be quashed.

Relief

100.  I will grant a certiorari as per paragraph 3 of the Notice of Motion in HCAL 96 of 2007.

101.  I will also grant a certiorari as per paragraph 3 of the Notice of Motion in HCAL 101 of 2007.

102.  In view of my conclusion that the submissions for classification were wrongly made in that each submission consisted of more than one article, I shall not remit the cases back to the Tribunal. There is also no need for the Tribunal to hold any review hearing for these cases. 

103.  There will be a costs order nisi that the Respondent shall pay the costs of the Applicants in both cases, such costs to be taxed if not agreed.

104.  By way of postscript, I hope this case serves as a reminder that even in the making of interim classification the Tribunal is accountable. I understand the Tribunal has a heavy caseload and interim classification has to be made within a short time frame. It may be that the administration should consider whether more resource should be deployed to maintain the proper and efficient functioning of the Tribunal. However, as Mr Chang emphasized in his submissions, the Tribunal is tasked to make decisions which have bearing on the freedom of expression, a fundamental right cherished by our society. That is one side of the coin. As I pointed out in Three Weekly Ltd v Obscene Articles Tribunal HCAL 42 of 2003, 29 June 2006, the Tribunal also functions as the protector of public interest in the preservation of public moral and prevention of dissemination of indecent materials to juveniles and the dissemination of obscene materials in general.  There is no room for arbitrariness or slackness.

105.  In these cases, the exemption from a duty to give reason has unwittingly caused the Tribunal to adopt a lax approach in dealing with its duty to identify under Section 14(3)(c) and in observing the guidance under Section 10. That should not have occurred. The Tribunal must ensure that its decision making process is in accordance with the requirements under the Ordinance. It is important that the Tribunal shall continue to maintain the public trust and confidence in its integrity through the utmost diligent and faithful execution of its statutory duties.