ORIENTAL DAILY PUBLISHER LTD v. COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING AUTHORITY

IN THE COURT OF APPEAL

No. 66 of 1997
(Civil)

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D E C I S I O N

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Hon. Chan, CJHC :

1. The Applicant published some photographs of women in the nude in its newspapers on two dates in June 1995. It was summoned before a magistrate who referred the matter to the Obscene Articles Tribunal for classification. They were classified as indecent. The Applicant appealed against these classifications to the High Court, now the Court of First Instance. When the appeal was dismissed, they appealed to this Court. On 28th October 1997, we dismissed the appeal and gave our reasons. The Applicant now wants to appeal further to the Court of Final Appeal.

2. I think it is only fair for Mr McCoy for the Applicant to rely on alternative provisions in the Court of Final Appeal Ordinance : first, leave to appeal to the Court of Final Appeal if it is a civil cause or second, for a certificate if it is a cause of a criminal nature. He argues that although this is a civil appeal, it is a criminal cause. Mr Bruce for the Respondent concedes that it is the view of the Government that this case is a criminal cause. I do not think it is necessary to decide on this point for the present purpose but if it is necessary I would agree that this is a cause of a criminal nature having criminal implications. The difference between granting leave in case of a civil cause and granting a certificate if it is a criminal cause is probably very minimal. This is because the test is more or less the same. In the case of a civil cause, the test is whether the point of law involved is one of "great general or public importance" and in the case of a criminal cause, the test is that the point of law must be one of "great and general importance". I suppose the reason for the difference in wording is that if it is a criminal cause, then it goes without saying that it is a matter of some public importance.

3. Before this Court, the Applicant argued basically two points in the appeal : (1) that the Obscene Articles Tribunal was under a duty to give adequate reasons for its classification and (2) the reasons given by the Tribunal in this case were not adequate since it only recited the provisions of the relevant section of the Ordinance.

4. This Court held that the Tribunal is indeed under an obligation to give adequate reasons for its classification. We also held that the adequacy of the reasons depends on the circumstances of each case. We further took the view that the facts in the present case were so clear that the reasons given by the Tribunal were adequate.

5. The point of law sought to be considered by the Court of Final Appeal is quite wisely set out in the Notice of Motion:

"Whether the Obscene Articles Tribunal has satisfied the obligation in law to give adequate reasons for its final determination in a criminal case, by in essence repeating the statutory criteria in s.10 Control of Obscene and Indecent Articles Ordinance Cap.390, and stating that those prescribed criteria have been exceeded?"

6. In my view, this is a very thin but unsuccessful disguise of the submission that this Court's decision that the reasons given by the Tribunal were adequate is wrong. This Court did not say and did not intend to say that the reasons given by the Tribunal in this case would be adequate in all or any other cases. Not in every case would the Tribunal give reasons which are similar to those given in this case. Even if there might be such occasions, the circumstances of each case must be different and such reasons as given by the Tribunal in this case might or might not be adequate depending on those circumstances.

7. I agree with Mr Bruce that the point sought to be argued by Mr McCoy for the Applicant may be a matter of specific importance to the Applicant, but it is not a point of great general importance if it is a criminal cause or a point of great general and public importance if it is a civil cause. I do not think it is necessary for the Court of Final Appeal to determine this question. For these reasons, I would refuse to certify that it is a point fit for the Court of Final Appeal. The application is refused.

Wong, J.:

8. I am of the same view and would dismiss the application.

Pang, J.:

9. I would also dismiss the application.