|
HCMA000792/1985
HEADNOTE
Objectionable Publication-test
IN THE SUPREME COURT OF HONG KONG
(APPELLATE JURISDICTION)
MAGISTRACY APPEAL NO.792 OF 1985
___________
BETWEEN
|
ATTORNEY GENERAL |
APPELLANT |
|
|
|
|
AND |
|
|
|
|
|
TAI NGA-TING |
RESPONDENTS |
|
KO CHUN-MAN |
|
______________
Coram: O'Connor, J.
Date of Hearing: 31 October 1985
Date of Judgment: 31 October 1985
___________
JUDGMENT
___________
1. This is a case stated by a magistrate following his acquittal of the respondents on a charge of publication of objectionable articles for gain contrary to Section 4(1)(b) and 4(2) of the Objectionable Publications Ordinance Cap.150.
2. The question posed was "Was I correct in holding that the articles in question were not objectionable within the meaning of the Objectionable Publications Ordinance, and acquitting the respondents accordingly?"
3. That question, as posed, does not raise a question of law. I, at the request of both counsel, treated it as posing the question whether the magistrate's decision was perverse, a decision that the magistrate would not have arrived at if he had properly considered the evidence and correctly applied the law to the evidence.
4. Mr. O'Reilly Mayne, responsibly, having considered the publications informed me that he could not support the magistrate either as to his verdict or his reasons. I, having myself looked at the publications, and considered the magistrate's reasons, am also of the view that the reasons are bad, and the verdict perverse. The publications are clearly objectionable.
5. The magistrate's reasons as set out in the case stated are :
| 1. |
there is a perennial dilemma in applying essentially subjective standards in the vexed area of censorship;
|
| 2. |
foreigners, although perhaps interested in the pictures, are nonotheless exeluded from understanding the Chinese characters;
|
| 3. |
the standards of censorship applied to the cinema in Hong Kong are very liberal - just stopping short of permitting depiction of explicit sexual acts on the screen;
|
| 4. |
in the two books there are no male sex organs depicted and only the merest hints of female pudenda (breasts are extensively displayed);
|
| 5. |
the translated text is not other than suggestive in its nature;
|
| 6. |
although the material when considered as a whole came very close to the borderline of objectionability when compared against the general level of European and Chinese material available to the Hong Kong public at large; it did not actually cross that borderline. |
6. As regards the first reason, I would observe what is required of a judicial officer is that he does his duty, difficult or otherwise, and applies community standards.
7. Reasons one and two are irrelevant. Reason three is relevant but by no means decisive. The courts are not bound to accept that the film censor correctly applies community standards. The films shown in Hong Kong are simply one matter for consideration in finding and applying the community standard. The fourth reason is factually erroneous. In any event such a matter is simply one matter for consideration, and would by no means be conclusive.
8. The fifth reason points towards the publication being objectionable, but is in no way conclusive. The sixth reason is not the correct test. It is not correct to look at what is available to the public, and decide that in the light of what is available the publication under consideration is not objectionable. The fact that dangerous drugs are freely available in Hong Kong, is no indication that community standards in Hong Kong approve of such drugs.
9. The proper test to apply is that set out in R. v. Mirchandani [1977] H.K.L.R.523, as approved in Attorney General v. I.P.P. Industrial Co. Ltd. Criminal Appeal No.397 of 1984.
10. I answer 'no' to the question posed, as understood by me. I send the case back to the magistrate with instructions to convict and proceed thereafter in accordance with law.
|
(R. O'Connor)
Judge of the High Court
|
Representation:
I.G. Cross, Acting Senior Assistant Crown Prosecutor, for the appellant.
D.F. O'Reilly Mayne, Q.C., assisted by Lawrence Lok (W.K. To & Co.) for the respondents.
|