OATD30/2006
OATD31/2006

Control of Obscene and Indecent Articles Ordinance Cap. 390 – Obscene Articles Tribunal – Part V jurisdiction – Determination – Section 10 Guidance – Publishers' intention – Use of previous classified publications – Reference or comparison prohibited – No distinction between classification and determination – Articles indecent.

IN THE OBSCENE ARTICLES TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Transcript of the audio recording in the case of

Determination under Section 29(5) of Cap. 390, before the Tribunal

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J U D G M E N T

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Court:

1.  These are the reasons for determination.  This tribunal is exercising its jurisdiction under part V of the Control of Obscene and Indecent Articles Ordinance, Cap. 390. 

2.  Two articles are referred to this tribunal for determination under section 29.  One article was published on page C21 of the Oriental Daily, to be called the Oriental article; and the other was published on page C54 of the Sun, to be called the Sun article, both of 2 December 2005.  These referrals arose from two summonses issued by the Commissioner for Television and Entertainment Licensing Authority, called the TELA, against the publishers of the two articles.  They are the Oriental Daily Publisher Limited and The Sun News Publisher Limited respectively.

3.  Miss Agnes Chan, senior government counsel, appears for TELA; and Mr Cheng Huan, senior counsel, leading Mr Paul Leung, appears for both publishers.  No admission that both articles are indecent is made.  Miss Agnes Chan agrees that only indecency is in issue. 

4.  Mr Cheng calls three editors responsible for these two articles to give evidence - one from the Oriental Daily and two from the Sun.  Their evidence will be dealt with later in the appropriate contexts.

5.  Regarding the source of the photographs, they confirm that they came from the Starpix, an international pictures seller.  There was a series of photographs of model, Kelly Brook, and her actor boyfriend, Billy Zane, holidaying on the French West Indies Island of St. Barthelemy, and they chose photographs from this series. 

6.  Both articles carry one main photograph of Kelly Brook and Billy Zane standing next to each other.  They appeared to be on the beach and standing in the water of ankle deep.  Billy Zane was only wearing a pair of knee-length shorts.  Kelly Brook was wearing only her bikini without the bra top.  It was a frontal view photograph showing the breasts of Kelly Brook, as appeared in the photographs, of significant size.  Both nipples and aureoles were obscured by small oblique squares. 

7.  The Oriental article occupies one-third of the page and the main photograph occupies half of the space of the article.  There is one other small photograph about this holiday.  The Sun article occupies half of the page and the main photograph occupies two-thirds of the space of the article.  It also carries another photograph of 4R size showing the couple embracing and kissing while floating in the water.  Both articles carry titles emphasising the naked breasts.  There are the main texts and also captions to the photographs.  I must point out here that the adjudicators and I would consider each article separately and in its entirety.

8.  This tribunal is to determine whether the two articles are indecent or not indecent according to the guidance under section 10, and I would use the compendious words for convenience to stand for the requirements of the relevant subsections as follows: 

(i)	moral standards;
(ii)	dominant effect;
(iii)	readership;
(iv)	honest purpose.

9.  One more guidance should be added, which is the most important of all.  It is the definition under section 2B, which states that a thing is indecent if by reason of indecency it is not suitable to be published to a juvenile; and a juvenile means a person under the age of 18 years.  Therefore five matters have to be considered. 

10.  I should also state here that these five matters will be set out separately later for clarity and convenience.  But they will be considered jointly and severally and in such orders and combinations as common sense and logic may dictate.

11.  This is part of a criminal proceeding and all the relevant considerations will apply.  In particular, the burden of proof is on the prosecution and the standard is beyond reasonable doubt.  Before we begin with the determination according to the guidance, I should deal with some arguments and legal points raised. 

12.  First, Mr Cheng submits that the intentions of the publishers are important, if not critical.  The editors are called to say that they had been very careful in choosing the photographs.  I find this evidence neither here nor there.  We are only concerned with the final product, not the care with which the final product is produced.  I hold that apart from the matter of honest purpose, the intentions of the publishers or editors are irrelevant.  Otherwise, the indecency would be decided by the publishers or editors and the functions of the OAT will be made nugatory. 

13.  Secondly, previous materials classified as non-indecent are produced.  Mr Cheng argues that we should look at them for reference to ascertain the general moral standards.  Attractive these arguments may sound, I am bound by authority.  In the Court of First Instance and when the judicial review of this case was heard in relation to classification, Lam J held that this course, which included comparison, should be prohibited. 

14.  Mr Cheng argues that the authority should be distinguished because it was made in relation to classification.  I find that, apart from the criminal and civil standards of proof, there is only a difference without a distinction.  I hold that on the principle of what is sauce for the goose is sauce for the gander, the prohibition should apply to both classification and determination.  I therefore exclude such evidence which includes the Now Magazine and the Apple Daily’s picture.  Even if comparison were allowed, I would find that the materials were so different to be beyond comparison. 

15.  Thirdly, Mr Cheng points out that the prevalent policy of newspapers is more pictorial and less verbose, and the slightly coarse Cantonese expressions merely enhance the entertainment value of the article.  I should say here that we have no prejudice against such policy or practice if they are within bounds in the present context of this hearing.

16.  I now come to the five matters and begin with the dominant effect.

17.  First:  dominant effect.  We find that the photographs were given prominent effect by virtue of the size in the article and on the page of the newspaper as a whole.  The editors explain that they chose the photographs with care in order not to appear to be indecent.  Judging from the original photograph, I find that this could not be true.  The original photograph shows the couple in the middle of the photograph with large area showing the beach and the water.  In the two articles, the bodies of the couple are shown on their own without any background and therefore given prominent effect.  We also find there are many gratuitous portrayals of Kelly Brook on what they call ‘lustrous body and huge breasts’, and on the enjoyment of Billy Zane in relation to this body.

18.  Secondly:  readership. It is agreed fact and I should take judicial notice that the Oriental Daily and the Sun each commands a very wide readership. They could reach public at large of all ages.  This wider readership could give a boost to any small harmful effect. 

19.  Thirdly:  honest purpose. The three editors give evidence on this matter.  Mr Cheng summarises it to this effect that, I quote: 

“	The texts essentially describe the holiday activities and the intimate demeanour of the celebrity couple while they were in the Caribbean.”

Mr Cheng also argues that the original intention was simply to publish a piece of light-hearted entertainment news which is capable of giving readers a good laugh.  It might be for fun and attraction, but we find that it was overdone.

20.  Fourthly:  moral standards.  To avoid doubt, we wish to state that we are using the standards of moralities, decency and propriety that are generally accepted by reasonable members of the community.  We find that it is indecent to expose the naked body of a woman and her breasts, despite the obscuring of the nipples in such fashion as adopted by the two articles.  The body and breasts are given a large and prominent position, and the effect is further enhanced by the vivid language of the younger generation used to describe them.

21.  Fifthly and lastly:  suitability for juvenile.  We find that the two articles show titillating and seductive photographs of a half-naked body of a model of international fame, to be accompanied by gratuitous portrayals of her body and her breasts.  This has a glorifying effect on the naked body of a woman, and on this basis, there is a message that her boyfriend is being envied for his company of such a naked woman and enjoyment of such an occasion.  On these findings, we are satisfied beyond reasonable doubt that the two articles are not suitable to be published to a juvenile and are indecent.

22.  Lastly, we wish to emphasise that the above determinations are reached separately on the two articles which, we notice, have as many similarities as dissimilarities.  However, the principles, reasons and conclusions are the same for them. 

23.  These are our determinations.  For the Oriental article:  indecent; the Sun article:  indecent.

Representation: