R. v. HUI SIU YAN, EDWARD AND OTHERS

1993, OATA No.4

_________

HEADNOTE

_________

APPEAL FROM OBSCENE ARTICLES TRIBUNAL - MAGAZINES TO BE EXPORTED TO SWEDEN - S. 10(1)(A) OF CONTROL OF OBSCENE AND INDECENT ARTICLES ORDINANCE CAP.390 - LOCAL LAW AND CONTROL IN SWEDEN OVER DISTRIBUTION AND SPREAD OF PORNOGRAPHY RELEVANT - AVAILABILITY AND LEGALITY IN DISTRIBUTION OF PUBLICATIONS OF SIMILAR NATURE DISTINGUISHED FROM MORAL ACCEPTABILITY OF SUCH PUBLICATIONS BY THE PUBLIC - PERSONAL OPINIONS OF EMPLOYEES OF THE PRINTER AND THE SWEDISH IMPORTER ON THE STANDARD OF MORALITY, DECENCY OR PROPRIETY THAT ARE GENERALLY ACCEPTED BY REASONABLE MEMBERS OF THE SWEDISH COMMUNITY RIGHTLY REJECTED AS EXPERT EVIDENCE - FINDING SWEDISH STANDARD NOT PROVED UPHELD - HONG KONG STANDARD APPLIED - OBSERVATION ON IMPROPRIETY IN DICTATING HONG KONG STANDARD ON A FOREIGN SOCIETY - OBSERVATION ON UNDESIRABILITY FOR FOREIGN MORAL STANDARDS TO BE DETERMINED BY A TRIBUNAL WITH LAY ADJUDICATORS IN THE MAJORITY

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

OBSCENE ARTICLES TRIBUNAL APPEAL NO. 4 OF 1993

(On Appeal From The Obscene Articles Tribunal

O.A.T. No. 3 Of 1993)

________________

J U D G M E N T

________________

1. This is the second appeal in these proceedings, and is against a second determination of the Obscene Articles Tribunal that was ordered pursuant to the first appeal in August 1993. The Appellants were charged with an offence under s.21(1)(b) of the Control of Obscene and Indecent Articles Ordinance Cap. 390 in December 1992. In January 1993 when they appeared before the Magistrate no plea was taken and the issue of classification of the articles in question was referred to the Tribunal in accordance with s.29(2) of Cap 390. On 24.2 1993, the Tribunal determined that all but one of the 166 articles submitted to be either obscene or indecent. It was against this first determination that the Appellants lodged their first appeal.

2. On 19.8.1993, the Court held that in determining the articles, which were to be published in Sweden and not Hong Kong, the Tribunal ought to have taken into consideration the moral standards of the place of intended publication. The first appeal was allowed as it was held that the Tribunal had erred in "failing to give sufficient consideration to the standard of acceptance of those articles in the Swedish Community, because they could not have been deemed obscene or indecent in Sweden if they can be obtained easily in public there". The Tribunal was thus directed to "re-open the proceedings and determine again whether the articles are obscene or indecent according to the guidelines laid down in s.10(1) by taking into consideration the moral standards of the place where they are intended to be published i.e. Sweden". The Appellants' application to invite the Court to reverse the findings of the Tribunal and substitute its own finding in their place was refused since it was held that as a matter of law the Court cannot determine the issue of whether the articles were obscene or indecent or otherwise.

3. On 3.11.1993, no fresh evidence was adduced at the rehearing. After hearing further submissions, the Tribunal confirmed its first determination in toto. In the present appeal, the Appellants allege no less than 9 grounds of appeal against the second determination. I shall first deal with the ones that can be easily disposed of, rather than in the order they appear in the notice of appeal.

GROUND 3

4. In its determination, the Tribunal said:

"Realizing that the adjudicators, none of whom ever visited Sweden, let alone reading or speaking Swedish, will have difficulty in deciding what are the standards of morality, decency and propriety that are generally accepted by reasonable members of the community in Sweden, the defence called 3 Swedes purporting (my emphasis) to give expert evidence on the standards of morality and so forth that are generally accepted by reasonable members of the community in Sweden."

The Appellants complained that "if the use of the word "purporting" in the Tribunal's reference to the evidence given by the 3 Swedes (p.4 of the Determination) the Tribunal is rejecting the relevance or materiality of such evidence, the Tribunal erred". I am unable to read into the Tribunal's said observation of the defence witnesses such criticism as the Appellants complained. It is obvious to me that the word "purporting" was used to qualify expert evidence rather than evidence as such. It is indisputable that the defence witnesses are not experts in any sense of the word. It has not been established that the opinion evidence they gave was based on any research, whether academically or commercially, or is anything but pure personal views or feelings. The evidence on Swedish law apart, none of them had been put forth by the defence as an expert on anything. Insofar as any of them attempts to give opinion evidence on the standard of morality, decency or propriety that are generally accepted by reasonable members of the Swedish community, such evidence must be "purported" expert evidence. I find such observation to be entirely proper and accurate, and the Tribunal cannot by any stretch of imagination be taken to demean the relevance or materiality of their evidence on factual matters. On the contrary in due compliance with the direction of the Court in the first appeal, it is abundantly clear from the second determination that the evidence of these witnesses was considered by the Tribunal meticulously and with great care. I find the complaint to be wholly unjustified.

GROUND 5

5. The Appellants allege that the Tribunal erred in "taking into consideration the Swedish Penal Code on pornography and the fact that some attempts are made in the Swedish Penal Code to control the distribution and spread of pornography in the Swedish community". It is alleged that these matters are irrelevant, there being no suggestion that any of the articles or magazines that were exhibited contravened the Swedish law. I find such criticism to be void of any merits. It is obviously relevant for the Tribunal to take note of the legality or otherwise of such articles in Sweden in its consideration of the acceptable standard of morality, decency and propriety over there. It is true that there is no necessary correlation between the two, in that what can lawfully be done may not necessarily be morally acceptable by the community and vice versa. However, all circumstances relating to whether pornographic articles are subject to any legal control, and if so the extent thereof, must be relevant to a consideration of the issue of morality, decency and propriety. I have no doubt that if evidence of the lawfulness of open sale of magazines with similar contents in Sweden and the expert evidence of the Swedish lawyer on Swedish law in relation thereto, which was the context in which the criticised observation came into existence, were not referred to in the second determination, the Tribunal would be open to criticism for failing to take into account such relevant facts.

GROUND 6

6. The Tribunal was criticised for "acting on the feelings of the 2 adjudicators (p. 8 of the Determination) instead of making a finding of fact by the whole Tribunal (i.e. including the Presiding Magistrate) based on the evidence before the Tribunal and the opinions on points of law and directions in the first Judgment". In the second determination, there are references to "the adjudicators" instead of "the Tribunal". Furthermore, there is a specific reference to "neither the adjudicators feel that, by the Tribunal's findings from the evidence given by the 3 Swedish witnesses, the standards of morality, decency and propriety that are generally accepted by reasonable members of the community in Sweden have been proved". However, I do not accept in saying thus, the Presiding Magistrate (who probably is the author of the determination) or the Tribunal, was necessarily indicating that the Presiding Magistrate was being excluded from the decision making process. It is regrettable that the determination failed to state expressly in clear terms if the Presiding Magistrate shared the same views of the adjudicators in that finding. It may perhaps be taken, in view of the deliberate distinction drawn between the adjudicators' views and the Tribunal's findings, that the Presiding Magistrate did not agree with such views of the adjudicators. Nevertheless, as the views of the 2 adjudicators represent the majority view of the Tribunal, such a deficiency cannot affect the validity of the finding. If the complaint was directed to the use of the word "feel" instead of the proper term of "find", this is a complaint that is void of any substance or merits. As is evident from the whole of the determination, the findings of the Tribunal are clear and unambiguous.

GROUND 1

7. It was contended that "the Tribunal erred by proceeding to re- determine the Articles by "applying Hong Kong standard" (pp.9-10 of the determination), in (flagrant) breach, non-compliance, disobedience, and/or defiance of the direction given in the first Judgment to determine by "taking into consideration the moral standards of the place where [the Articles] are intended to be published, i.e. Sweden" (p. 8 of the first Judgment)." To understand what the Court was directing the Tribunal to do at the rehearing, it is necessary to understand the basis of the Court's ruling in the first appeal.

8. The Court held in the first appeal:

"In the present case, evidence were given by 3 Swedes as to the standards of acceptance of those articles in their community. In my view this is a material factor which should be given serious consideration when the Tribunal determines the obscenity or otherwise of those articles. There is no information as to how the Tribunal came to its decision, and in view of the evidence presented, it is likely that the Tribunal had erred in its findings by failing to give sufficient consideration to the standard of acceptance of those articles in the Swedish Community, because they could not have been obscene or indecent in Sweden if they can be obtained easily in public there."

9. The learned Deputy Judge appeared to equate availability of publications with acceptability of them by the community. Evidence of availability of such articles is only evidence that it is lawful to sell openly articles of such nature in public places. It is not per se evidence that such articles are not regarded by reasonable members of the community to be obscene, indecent or improper. Lawfulness of publication is intrinsically linked to human rights and perceptions of freedom of expression. It is not surprising to find in a society, perhaps more so in European societies, conducts which are lawful but are regarded by the community as reprehensible and immoral. What is immoral is not necessarily unlawful, and what is lawful is not necessarily moral. Prostitution, homosexuality and adultery afford good illustrations of this phenomenon. With respect, the Appellants fall into the same error when they placed unduly heavy emphasis on this piece of evidence on its own.

10. Due to the learned Deputy Judge's deduction that availability equates acceptability, and the absence of any reference by the Tribunal in the first determination to the evidence of the 3 Swedes; the Court came to the conclusion that in coming to the first determination, the Tribunal must have failed to consider the evidence of the 3 Swedes sufficiently or at all. It was on that basis that the rehearing was ordered, and the direction to consider the moral standards of the place of intended publication given. There is no direction by the Court that after considering the evidence of the 3 Swedes and the evidence relating to the moral standards of the Swedish community in general, the Tribunal must or should come to any particular conclusion on the obscenity orotherwise of the articles. Neither is it open to the Court to give a direction to such effect. The views of the Court on this issue in the first appeal cannot be more clear when it said :

"In other words the High Court can only decide on points of law and order the Tribunal to reconsider its decision or determination in the light of its ruling on those points of law. It can, say, indicate that the Tribunal had erred in taking into consideration irrelevant matters or evidence or failed to consider some important or relevant matters and direct the Tribunal accordingly. I do not think the High Court can determine as a matter of law whether an article is obscene or indecent because to do so the High Court would be usurping the function of the Tribunal. In view of S.29(1) it would be contrary to the intention of the legislation to do so."

11. The law as ruled by the Court is that :

"When the Tribunal finds on facts that the offending article is intended to be published in places other than Hong Kong, in the absence of any evidence as to the moral standard of those places the moral standard of Hong Kong should be the guideline in the determination by the Tribunal because Hong Kong is a very cosmopolitan city and standards of morality here is neither too loosen nor too restricted. However, when there is evidence as to the standards of morality of the place where the article is intended to be published, then in accordance with S. 10(1) that should be taken into consideration and given due weight."

12. That was the basis upon which the matter was sent back to the Tribunal for a rehearing. In the premises, the first issue the Tribunal has to determine is whether there is evidence of the moral standards of the Swedish community as regards the said articles. In doing so the Tribunal would have to have regard to the evidence of the 3 Swedes. This the Tribunal did as is apparent in the second determination when the evidence of the said Swedes was set out in some detail. The Tribunal then held that from its findings on the evidence of the 3 Swedish witnesses, it refuses to accept that "the standards of morality, decency and propriety that are generally accepted by reasonable members of the community in Sweden have been proven". It further said that it is "unable to discern any evidence as to the standards of morality and so forth generally accepted by reasonable members of the community in Sweden". In view of such clear statements, it is entirely without substance for any criticism to be made that the Tribunal had failed to consider the evidence of the 3 Swedes as directed by the Court. Where the Tribunal parted way with the Court was on the conclusion as to the effect of such evidence, i.e. whether such evidence succeeded in establishing the moral standards of the Swedish community? And if so, whether by such standards the said articles can be said to be obscene or indecent? By holding that the requisite moral standards of the Swedish community have not been proved and that there is no evidence of such standards, after setting out the evidence of the said Swedes, the Tribunal is effectively holding that it refuses to accept their evidence as evidence establishing the requisite moral standards. The Tribunal cannot be taken to have refused to accept that their evidence is capable of being evidence of such a fact. The refusal is a refusal to accept that their evidence proved that fact. This is a matter that is entirely within the province of the Tribunal as a tribunal of fact.

13. Is the finding of the Tribunal that the evidence as presented failed to prove what are the standards of morality, decency and propriety that are generally accepted by reasonable members of the community in Sweden susceptible to an appeal? The finding is a finding on a fact that the Tribunal must, pursuant to s.10(1) of the ordinance, have regard to in determining the issue of obscenity or indecency. And the determination of such an issue is, by virtue of s.29(1)(a), within the exclusive jurisdiction of the Tribunal. There is no express provision in the ordinance that the Court cannot reverse or vary any determination on question of fact or receive further evidence similar to those provided in the Labour Tribunal Ordinance Cap. 25 or the Small Claims Tribunal Ordinance Cap. 338. However, it is rightly accepted by the Appellants that as this is an appeal from a tribunal established by statute, the appellate court can only have such jurisdiction and power over the matter as is expressly conferred upon it by the statute. There can be no inherent jurisdiction in this respect. I accept that there is no jurisdiction for the Court to overrule the Tribunal on question of sufficiency of evidence. It is not open to me to say that on the evidence before the Tribunal it should have been satisfied that the standards of morality, decency or propriety accepted by reasonable members of the Swedish community have been proved. It is accepted by the Appellants in the first appeal that the direction the Court ought to give is to direct the Tribunal to take into consideration the moral standards of the place of intended publication i.e. Sweden. There is and can be no direction that the Tribunal must accept the evidence adduced by the Appellants as having satisfactorily proved any particular standard. Likewise it is not open to the Appellants to seek to disturb the finding of the Tribunal on such a matter in this appeal.

However, on the assumption that it is open to the Court to disturb the Tribunal's finding of fact, I cannot agree that on the evidence before it the Tribunal should have found the accepted standards of the Swedish community satisfactorily proved. The Appellants rely on the following evidence in support of their contention:

(1) that it is not unlawful for such articles to be sold publicly in Sweden;

(2) that such articles are widely available in Sweden e.g. at gas stations or supermarkets next to children books;

(3) that there are no complaints in the newspapers about the sale of such articles;

(4) that the schools have not yet started to complain about the sale of such articles;

(5) that such articles occupied about 25% in value and 20% in volume in the magazine market;

(6) that the publishers never received any complaints.

14. It is the evidence of the Swedish lawyer (DW 1), that "Apart from the question of taste, these magazines are not referred to by the public as obscene publication. They are called men's magazines in Sweden". Such magazines had grown from 2 thirty years ago to 22 at present. However, though he said in his sworn statement that his personal view is that reasonable members of the general public would not consider the magazine "CATS" as obscene; it is his evidence that he could not say whether adults would find it embarrassing to read these magazines with children of young age. When asked if the schools condemn reading of such magazines by children, his answer was " they have not started to". The first thing to note is that none of the defence witnesses can be described as an independent witness. The first witness is a lawyer engaged by the defence. The second witness is the general manager of the Swedish Trade Commission for Hong Kong and South China, whose job is to promote trade and commercial activities between Hong Kong and Sweden. The other 2 witnesses are officers of the Appellants or the Swedish company.

15. The relevance and weight of evidence of lawfulness and availability of such articles on the issue of the accepted standards have already been dealt with. The general manager of the Swedish Trade Commission (DW 2) did not know whether there is machinery in Sweden for complaint against such articles though there is the consumer councils and ombudsman. However, there is evidence that the witness did not notice any complaints made to newspaper in public columns. The lack of complaints, whether from schools or the public, is a factor to be considered, though they cannot be decisive on the standard of acceptance. A community may place more importance on such human rights as freedom of expression and of the press than on pornography. That does not necessarily mean that the general public would regard such expressions of views by writing or photographs as moral or decent. It may, and not infrequently is, a matter indicative only of the priorities of the community regarding competing considerations. Evidence on sales figure and share of the magazine market is only meaningful if they are supplemented by evidence of the proportion of reading population of magazines with reference to the whole population of the community. A 90% share of a reading population occupying only 1% of the total population of the community is hardly representative of the views of the community in general. Furthermore, it was precisely because of the flourish of pornographic publications that had led to governmental control in Hong Kong. Thus, would popularity of a publication, let alone popularity amongst an unknown percentage of the total population, necessarily establish moral acceptance by that community?

16. Taking the sum total of the evidence presented by the said witnesses before the Tribunal it cannot be said that no reasonable tribunal would have failed to accept that the standards of morality, decency or propriety accepted by reasonable members of the Swedish community have been established. It is open to a tribunal to find on such evidence that the said standards have not been satisfactorily proved.

17. In the premises, it is unjustified for the Appellants to complain that the Tribunal had defied any direction of the Court. There is no direction from the Court that the Tribunal cannot apply the Hong Kong standard in the present case; or that it must accept that the Swedish standards have been proved and thus are the standards the Tribunal must apply. Therefore, there is no question of any defiance or non-compliance as alleged. If the direction in the first appeal can be interpreted in the way alleged, I am of the view that such a direction is without jurisdiction and non-compliance with a null and void direction given in excess of jurisdiction cannot afford a ground of appeal. And in so far as is necessary, I hold that the Tribunal was entitled to find that the evidence failed to satisfactorily prove the Swedish standards and thus had not acted improperly in rejecting the evidence of the Swedish witnesses. And in the absence of acceptable evidence of such standards, it had properly applied the Hong Kong standards as ruled by the Court in the first appeal.

GROUND 2

18. The Appellants further allege that by posing the question relating to the Swedish standards, the Tribunal had erred in adopting the wrong test "in that it is neither necessary nor relevant to consider the general or abstract question" of the Swedish standards. It is also contended that the Tribunal erred in failing to apply the correct test under s.2(2)(a) i.e. "whether any of the Articles is so obscene (or indecent) that "by reason of its obscenity it is not suitable to be published to any person" (emphasis provided)".

19. Consideration of the Swedish standards is mandatory pursuant to s.10(1)(a). By rejecting the evidence of the Swedish witnesses as evidence proving the Swedish standards, the Tribunal effectively refused also to accept their personal views on the obscenity or indecency or otherwise of the articles since such personal views are founded on their perceptions and "knowledge" of the Swedish standards based on their evidence relating to the 6 facts. Thus, it is entirely unjustified to allege that the Tribunal had only considered the Swedish standards in "abstract" and had failed to consider the personal views of the said witnesses.

20. The Appellants also submit that to be obscene or indecent within the meaning of the ordinance, the article must not be suitable to be published to any person or juvenile, as the case may be, in Sweden. And it is contended that the Swedish witnesses regarded the publication of the said articles not to be unsuitable. It should not be forgotten that none of these witnesses can be said to be an independent witness. And the test is an objective test with reference to the standards of reasonable members of the community. An extremist may regard the articles as amply suitable or unsuitable, as the case may be, for any person. "Any" is used in the section to connote persons in general as distinct from any particular class of persons or persons with particular views. It does not, and cannot be taken to mean, as the Appellants contend, that if it is suitable to be published to a single person in the community then the article cannot be said to be obscene. An article that is regarded by 99.9% of the community as obscene may be the joy of life, and indeed therapeutic and necessary, for a few. But that does not make the article one that is generally acceptable by the community as a whole. To hold otherwise would render the law a joke.

GROUND 4

21. The Appellants allege that the Tribunal erred in holding that the evidence referred to by the learned Deputy Judge is "a far cry from demonstrating what are and what are not generally acceptable by reasonable members of the community in Sweden". Strong language apart, for the reasons given before, the Tribunal is entitled to form such a different view on the evidence and I am unable to hold that the finding of the Tribunal on the sufficiency of the evidence to have erred in any respect. This ground of appeal is without merits.

GROUND 7

22. The Appellants submitted that "By stating that "the Tribunal's adjudicators are unable to divine what goes on in the minds of the reasonable members of the community in Sweden, a fairy-land country in another continent thousand ["of" apparently omitted] kilometres away as the crow flies", the Tribunal erred, and the Presiding Magistrate was in dereliction of his duty to direct the Adjudicators to consider the evidence as directed in the first Judgment and to consider all factual questions himself and together with the 2 Adjudicators, based on the evidence and the opinion on points of law and the directions in the first Judgment". (I do not believe "of" should be inserted without making "thousand" plural.)

23. Apart from the strong language, which ought not have found its way into a judgment, I am unable to see how it could be concluded from that statement that the Presiding Magistrate had committed such a grave and obvious error of excluding himself from the decision on facts, and to have failed to give the lay adjudicators the benefit of his legal knowledge and guidance. I have already dealt with the complaint relating to the decision being one by the 2 adjudicators alone to the exclusion of the Presiding Magistrate and I have no wish to repeat myself here. I am unable to discern from the statement complained of, or from any other part of the determination, any indication that the Presiding Magistrate had failed to direct the lay adjudicators on questions of law.

GROUNDS 8 AND 9

24. These are essentially repetitions of grounds already dealt with and I do not propose to deal with them again. They complained of an error in the Tribunal's conclusion that it is unable to discern any evidence as to the Swedish standards; and that the findings of obscenity and indecency are "perverse, unsupported by any evidence, against the weight of the evidence, and are made in (flagrant) breach, non-compliance, disobedience, and/or defiance of the opinion on points of law and the directions in the first Judgment which the Tribunal is bound to follow and comply with".

25. For the reasons given, I find none of the grounds of appeal to have been substantiated and the appeal to be without merits, and the same is dismissed. I further make an order nisi for costs of the appeal to the Respondent against the Appellants.

26. I would add that perhaps the frustration of the Tribunal as expressed in the language used is understandable. The Tribunal has been conferred with exclusive jurisdiction on the determination of the acceptable moral standards of the community. The system requires the decision to be made not by a professionally trained judicial officer alone, but by a majority decision with lay adjudicators in the majority. It is obvious that heavy reliance is being placed on the experience and knowledge of the adjudicators of the moral sentiments of the community in general. They come from all walks of life and represent different views of varying strata of society. It appears that the scheme was not designed to have such a composition of adjudicating body to rule on the moral standards of societies foreign and strange to them. Their most valuable, and perhaps the sole dominant, asset (i.e. their experience and knowledge of the local moral sentiments) cannot assist them at all when faced with a task such as the present case. Is it wise to ask lay adjudicators to rule on expert evidence of moral standards of a foreign society, of which they probably have no personal knowledge or experience, and to determine what that society ought or not ought be allowed to publish? Lay adjudicators are not only not equipped to carry out such a task, they are probably ill-chosen to be entrusted with such a task.

27. Section 10(1)(a) refers to "the community" rather than "that community". The scheme in England is different as such matters are to be determined by magistrates (who may or may not be professionally qualified). Thus, the judgment of the House of Lords in Gold Star Publications Ltd. v. Director of Public Prosecution [1981] 2 A11 ER 257 should be viewed in that context. Is it really the intention of the legislature that the Tribunal or the Hong Kong courts should dictate what a foreign society should or should not be permitted to read? This would be the effect in most cases if the ordinance is to cover publication abroad. Because it can be readily anticipated that the expenses of adducing evidence of foreign moral standards via expert witnesses from abroad would prohibit the availability of such evidence before the Tribunal. Consequently, in accordance with the House of Lords decision, the Tribunal will have to apply the Hong Kong standards thereby dictating the local standard to the foreign society that is attempting to seek assistance of traders in Hong Kong in the publication of the article in their own society. The unwarranted curtailment of such kind of international commercial activities appears to me to fall foul of Hong Kong's reputation for laissez-faire.

28. Furthermore, the sympathy the House of Lords has for the magistrates in their unenviable task of dealing with foreign moral standards applies to the Tribunal with double force. If it is indeed the intention of the legislature to entrust the Tribunal with the task of determining foreign moral standards, it may perhaps be preferable that such a determination be dealt with by the Presiding Magistrate alone so that he would not be outvoted by the majority views of lay adjudicators. Judicial officers are better equipped and trained to deal with considerations of foreign law and related matters than lay adjudicators and should not be allowed to be outvoted by less skilled and inexperienced lay persons.