THE ATTORNEY GENERAL OF HONG KONG v. I.P.P. INDUSTRIAL COmPARD LIMITED AND OTHERS

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Headnote

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Standards of decency with regard to the Post Office Ordinance and Objectionable Publications Ordinance.

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JUDGMENT

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Cons, J.A.:

1. This is an appeal by way of case stated from a decision of the Magistrate in Western District. It has been referred to us by a single Judge of the High Court.

2. The questions of law that we have to answer are whether copies of a certain book and certain synthetic male penises are "obscene, immoral, indecent or offensive things" within Section 32(1)(f) of the Post Office Ordinance, Cap. 98 and whether the books also fall within Section 4(1) of the Objectionable Publications Ordinance, Cap. 150 as being "objectionable articles". These are defined in Section 3(1)(a) as those which consist of or contain matter of an indecent, obscene or revolting nature.

3. Most of the books and all the synthetic penises had been sent by airmail from New York to the 1st Respondent Company, while a further four copies of the books had been seized by officers of the Customs and Excise in each of two shops in Kowloon.

4. It will be noted at once that the words used in the two Ordinances are not identical, but we do not think this is material. In R. v. Stanley ⁽¹⁾ at page 333, the Court of Criminal Appeal said:

"The words 'indecent or obscene' convey one idea, namely, offending against the recognised standards of propriety, indecent being at the lower end of the scale and obscene at the upper end of the scale."

5. This was accepted by this Court in R. v. Mirchandani ⁽²⁾ at page 527 where the scale was implicitly extended upwards to contain the word "revolting". "Offensive" would be included at the very bottom. We have found it difficult to place "immoral". This word seems to us to have connotations of a different kind, and is perhaps to be found in a different key. However, the concept of morality as such has played no part in forming our conclusions in this case.

6. The correct test to be applied in a situation such as this is to be found in the case to which we have just referred, i. e. R. v. Mirchandani ⁽²⁾ at page 527:

".......... it is contended on behalf of the Crown that in Hong Kong it is not the law that objectionableness must be judged relatively to the persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter embodied in the article. Mr. Caird invites us rather to adopt the 'dictionary test' and to hold that if the article would be considered by the community as a whole to be objectionable that is enough. We think that subject to what ire shall say hereafter this is right and we respectfully endorse the view expressed by Hogan, C.J. in Attorney General v. Yeung Kam-tsuen that

 

'	the magistrate must exercise the community's conscience and treat himself as representing the community's feelings in the matter.  If, with these feelings in mind, the publication appears to him to be offensive, then he should treat it as such'.

 

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What we have said does not, of course, mean that the surrounding circumstances are irrelevant, because the community would itself have regard to them and might, for example, tolerate matter in a medical textbook which it would consider undesirable in a book for children or even in a novel intended for adult readers. This is what Lord Sends meant when he said in M'Gowan v. Langmuir that there is always 'an element of relativity'. "

(2)    (1977) H.K.L.R. 523

7. The kernel of the test is contained in the remarks of Hogan, C.J. We have set out the remainder of the passage in deference to the arguments of Counsel. He emphasized that the two shops were discretely situated and that, as the Magistrate found, young people were not admitted. Furthermore, the advertisements which the shops carried on Commercial Radio were expressly directed to adults only. Counsel drew our attention as well to the changing attitudes of society and particularly to the cosmopolitan nature of Hong Kong, the implication being, as we take it, that we ought to apply the more liberal standards that some suggest are applied in other societies elsewhere. In our view that would not be right. The conscience of society may of course have been influenced by external factors as well as its own natural upbringing. These factors will then be reflected in the standards which it sets itself. We do not think we should attempt to take Hong Kong beyond those standards.

8. The Magistrate dismissed the complaints that were preferred against the various respondents and has set out his reasons for doing so very clearly and concisely in the case stated.  As to the synthetic penises he said:

".......... they are in the same category as vibrators and dildos which have been manufactured and sold in Hong Kong and most other cosmopolitan cities for years; that apart from the people who need this type of thing I do not believe others show the slightest interest in them.  I do not believe people today in Hong Kong would be offended by them. "

9. With every respect to the Magistrate it is not a question of whether the general public would be interested in the articles but whether, if the articles were brought to their notice, the general public would find them offensive. We have not been shown any of the vibrators or other dildos to which the Magistrate referred and we cannot say therefore how we think the general public would find them. We have however seen those which are the subject of these proceedings, or rather we have been shown one sample of each of the five varieties from which the whole is made up. It is suggested that they should perhaps be assessed for their capacity to provide amusement rather than sexual pleasure. It is pointed out that the shops advertise themselves as selling, inter alia, adult novelties and toys. We accept that there may be some who would view them in that light, and that there will be others who would want them for the purposes for which they are otherwise apparently intended. But we have no hesitation in concluding  that by and large the people of Hong Kong would find them nothing but indecent and obscene.

10. We turn then to the book. It runs to some 125 pages and is called "The Complete Manual of Sexual Positions". The selling price is apparently $125. The object of the book is set out in the opening sentence of the Preface; "This manual is both a fantasy guide and a practical collection of examples to help you expand your lovemaking repertoire". It is written, if we may use the phrase, in an intimate style, by a lady who draws to a very large extent upon her own personal experiences. The whole is amply illustrated with what she describes as "graphic and explicit illustrations to show you EXACTLY what I have in mind when words are inadequate". The glossy cover proudly proclaims that there are over 200 photographs. There are also several diagrams.

11. We do not propose to set out more of the text than we have already. A recital of the chapter headings will adequately indicate the nature of what is to be found. The first seven chapters are entitled as follows:

12. So far so good. Although some might have reservations about what is written and shown with regard to Chapter Seven, we do not think that taking these seven chapters as a whole they would necessarily offend against the fairly relaxed attitude that is now generally held as to the open discussion or protrayal of sexual intercourse.

13. We have then to consider the two further chapters. Chapter Eight is headed "A FREUDIAN HIGH", and sub-titled "The Lust of Anal Sexuality". The authoress reveals herself in this chapter as a fervent advocate of intercourse between a man and woman per drum, including in the text explicit advice on how to overcome the anticipated fears and reluctance of the prospective female partner.

14. She carries her enthusiasm for this practice into the final chapter - "ADVANCED STUDIES", or "The Etiquette of Multiple Partners" a chapter in which she expounds the delights of sexual dalliance by three and four, culminating in the ultimate bliss to be found, at least by woman, in the simultaneous enjoyment of sexual intercourse in both fashions.  These two chapters are fully illustrated by photographs, the last indicating as well, the possibilities for lesbian practice within group sex.

15. The Magistrate thought in these respects that "the public attitude now is that what an adult man and woman do in private is a matter for themselves".

16. Again with every respect to him, that is not a correct approach. The law as to indecency is not concerned with what individuals do in the privacy of their own homes, but with what it is done or, in this case disseminated, in public. There a line has to be drawn. In a changing society such as ours it will never be easy to define with precision the exact position of that line at any given moment. There will be scope for difference of opinion between reasonable persons. We are satisfied, however, that even upon a most liberal drawing of that line, the inclusion of the last two chapters takes this book well beyond what is acceptable at the present time. It must offend, therefore, against both ordinances.

17. The formal questions posed in the case stated ask if the Magistrate was correct in coming to the conclusions that he did. As we have shown, we think he was not. We therefore set aside his decisions and remit the matter to him with a direction that he continue the hearing against the respondents in the light of the opinion that we have just given.

(1) (1965) 2 Q.B. 327