THREE WEEKLY LTD v. OBSCENE ARTICLES TRIBUNAL AND ANOTHER

HCAL 42/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE PROCEEDINGS

NO. 42 OF 2003

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AND

HCAL 43/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE PROCEEDINGS

NO. 43 OF 2003

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J U D G M E N T

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A.  Introduction

1.  This is an appeal against the decision of the Obscene Articles Tribunal (“the Tribunal”) in respect of the its classification of an article published by the Appellant on 2 November 2002 in Issue No. 160 of the Three Weekly magazine.  The Tribunal classified the article as a Class III article.  The Appellant also seeks judicial review against such decision.  In the course of the hearing of the appeal in March 2004, the Appellant applied to have the judicial review to be heard together with the appeal.  This court granted that application, hence the two matters were subsequently heard together when the case resumed in June 2006.

2.  The article in question was entitled “Nude Picture of Actress in Distress – the Truth Revealed” [“the Article”].  It was published after an earlier article published in the Eastweek magazine on 30 October 2002 had caused a public outcry and widespread condemnation against the publisher.  That article was the subject matter of Mong Hon Ming v Secretary for Justice [2004] 2 HKC 219 and Hartmann J gave a description of the article at p. 221F to G.  In respect of the Three Weekly article, Mr McCoy SC (counsel for Three Weekly) described it as follows in his skeleton argument,

“2.6 The front cover of Issue 160 (“the Front Cover”) [72/79] may be described as follows:

(i) It carried the title 被虐裸照真相公開，which title may be translated as either “Nude Picture of Actress in Distress – the Truth Revealed” or “Nude Picture of Actress in Distress – the Real Photo Revealed”,

(ii) Three images appeared in the lower one-third of the Front Cover;

(iii) At the left-hand bottom corner was a photograph of an envelope captioned 「20/10深圳寄出」(“20/10 Posted from Shenzhen”);

(iv) In the middle of the bottom end was a square frame containing a photograph of a piece of letter paper captioned 「白信紙夾裸照」(“Nude Photo Wrapped in White Letter Paper”);

(v) In the right-hand bottom corner was another square frame with the following features:

(a) the frame was captioned 「裸照」(“nude picture”).

(b) it contained the Picture in the in-set measuring 3cm x 3.5cm, that is, about 1.8% of the entire Front Cover;

(c) the in-set Picture had a banner running across it with the words 「天地不容」(“forbidden by heaven and earth”) (“the Banner”);

(d) the upper chest and lower half of the face of the Actress in the in-set Picture were covered by the Banner and her eyes, which were not blurred, were just visible;

2.7 The Picture also appeared on the Index Page (“the Index Page”) [92] of Issue 160 (“the Index Page Photograph”).  The Photograph, captioned “28”, measured 7cm x 10.5cm, that is, about 17% of the page.

2.8 Page 28 [73/80] saw the commencement of a feature article (“the Feature Article”), which may be described as follows:

(i) it spread seven pages up to page 34, inter-cut by advertisements on pages 31 and 33;

(ii) on page 28, the Feature Article was introduced with the Picture appearing in the upper half of the page, measuring 7cm x 9.5cm (i.e. about one-tenth of the page), and mostly covered by the Banner except for the eyes of the Actress which on this occasion were blurred by opaque squares.  The words on the Front Cover 「被虐裸照真相公開」were reproduced in the lower half of the page;

(iii) the text of the Feature Article began at page 29 [74/81-83] which told the story, inter alia, of how the Magazine also received a copy of the Picture, on 22.10.2002, prior to the publication of the Picture by Eastweek.  It was said that, the copy of the Picture received was wrapped in plain letter paper and probably posted from Shenzhen as it had a Shenzhen postmark;

(iv) the text on page 29 was illustrated, in the middle section, by the three images which appeared on the Front Cover, namely, the image of an envelope on the left, that of a letter paper in the middle, and the Picture placed as an in-set of a 5cm x 5cm frame on the right.  Here, the Picture measured about 2cm x 2.5cm (i.e. about 0.8% of the page) with the Banner running across it.  The three images carried the same captions as on the Front Cover;

(v) the text of the Feature Article covered other stories, including, inter alia:

(a) on page 30 [75/84-86], of how the copy of the Picture received by the Magazine had been tampered with;

(b) on page 32 [75/87-89], of alleged incidents of kidnap or attack encountered by some personalities in the entertainment business;

(c) on page 34 [76/90-91], how pictures of other actresses had been tampered with to produce pornographic images thereof, and of how a Taiwanese public figure had had pictures of her sexual activities exposed to public view;

(vi) a “straw poll” of five members of public as to their reaction to Eastweek appeared at the right-hand side of page 34, illustrated by photographs of those five persons being shown a copy of Eastweek.  Each of these five pictures measured 2cm x 2.5cm, with images of the front cover of Eastweek just being just visible.”

3.  On 5 November 2002, the Commissioner for Television and Entertainment Licensing Authority submitted the Three Weekly article under Section 13(2) of the Control of Obscene and Indecent Articles Ordinance Cap. 390 [“the Ordinance”] to the Tribunal for classification.  In the application, the particulars of the Article was described as “Front cover and the related feature article published in a magazine entitled “Three Weekly” dated 2 November 2002 (Vol. 160)”.

4.  An interim Class III classification was made by the Tribunal on 6 November 2002.  Three Weekly was formally notified by a letter dated 9 November 2002.  Notice of that classification was published in the newspaper pursuant to Section 19 on the same date.  The notice described the article as front cover and feature article of a magazine.  Three Weekly applied for a review in respect of that classification.  The review hearing took place on 18 February and 7 March 2003.  On 8 April 2003, the Tribunal confirmed the classification of the Three Weekly article as Class III.  In the full reasons for decision were given by the Presiding Magistrate for the classification, the learned Magistrate decided several points of law raised by counsel acting for Three Weekly.

5.  Three Weekly appealed on 12 April 2003.  Judicial review was lodged on 24 April 2003.

6.  On 29 April 2003, the Appellant and its editor were charged with publishing an obscene article pursuant to Section 21(1)(a) of the Ordinance.  The case had been adjourned pending the outcome of these proceedings.

B.  The appeal

B(1)   Permissible scope of an appeal under the Ordinance

7.  Before dealing with the grounds of appeal, it is necessary to remind oneself the jurisdiction of this court in hearing an appeal under the Ordinance.  Section 30(1) of the Ordinance confined the permissible scope of an appeal against the decision of the Tribunal to “a decision of that Tribunal on a point of law”.  The construction of this expression was considered by the Court of Final Appeal in Oriental Daily Publisher Ltd v Commissioner for TELA [1998] 4 HKC 505.  The Chief Justice said at p. 519B,

“Construing s30(1) in the context of the statute as a whole and s7(3) in particular, the words ‘against a decision of that Tribunal on a point of law’ refer to the point of law decided by the presiding magistrate under s7(3).  The point of law may be raised for his decision by any party or the presiding magistrate himself or the Tribunal as a whole.”

The Chief Justice pinpointed that quashing the decision is not a remedy available in an appeal by reason of Section 31(a).

8.  The Chief Justice also noted that in this respect there is a distinction between an appeal from the Tribunal and an appeal from the Labour Tribunal and Small Claims Tribunal.  The comparison with appeals from the Labour Tribunal and Small Claims Tribunal is enlightening.  Those appeals are also restricted to point of law, but the Chief Justice considered that the permissible scope of those appeals is wider than an appeal from the Tribunal, see p. 519F.

9.  In fact, the grounds relied on by the appellant in that case could readily be regarded as errors of law, as such permissible grounds of appeal, in an appeal against a decision of the Labour Tribunal or Small Claims Tribunal.  In my experience in hearing those appeals, there are occasional challenges to the findings of the Presiding Officer or Adjudicator as being erred in law in the sense that no reasonable tribunal of fact would come to that conclusion on the evidence, see Cheng Yuen v Royal Hong Kong Golf Club [1997] 2 HKC 426.  Such attack is similar to an attack based on Wednesbury unreasonablenessin administrative law term.  The Court of Final Appeal was of the view that the ground is not permissible in an appeal from the Tribunal under Section 30(1).  See also the judgment of Litton NPJ at p. 520C to I.

10.  It follows that to be properly within the scope of Section 30(1), a ground of appeal must relate not only to an error of law on the part of the presiding magistrate or the Tribunal, but it must also be a point of law decided by Tribunal.  Under Section 7(3), point of law arising during any proceedings before the Tribunal shall be determined by the presiding magistrate.  In other words, if a point of law had not been raised at the Tribunal, and the Tribunal did not expressly ruled on the point, it would be outside the scope of Section 30(1).  In that scenario, even if the decision of the Tribunal was arrived at with an error of law, it could not be a ground of appeal under Section 30(1).  The proper remedy is judicial review based on error of law on the record.

11.  Insofar as it had been decided otherwise in Ming Pao Newspapers v Commissioner for TELA (1997) 7 HKPLR 314, that should be regarded as overruled by the Court of Final Appeal in Oriental Daily Publisher Ltd v Commissioner for TELA [1998] 4 HKC 505.  On my reading of the judgment, the point was not argued in the earlier decision. 

12.  Applying that test, it is my view that Grounds 7 to 11 are not points of law subject to a decision by the Presiding Magistrate.  Rather they relates to alleged errors in the approach of the Tribunal in coming to the conclusion of a Class III classification.  Grounds 7 to 9 criticized the Tribunal for failing to apply Section 10(1)(a), (b) and (e) properly.  Ground 10 alleged the Tribunal failed to consider the ‘comparables” properly.  Ground 11 alleged the Tribunal failed to consider the meaning of obscenity within the meaning of Section 2(2) of the Ordinance.  They should be canvassed in the context of the judicial review.

13.  Ground 12 was abandoned by the Appellant.  I shall therefore focus on Grounds 1 to 6.

B(2)  The identification of the Article

14.  Ground 1 criticized the Tribunal for classifying the index page photograph.  The contention was that the index page was not included in the application submitted by Commissioner.  Hence, Mr McCoy submitted that the Tribunal had no jurisdiction to classify that photograph.

15.  I do not think it is accurate to say the Tribunal had classified the index page photograph.  It is clear from the Reasons for Decision that the Tribunal had never considered the index page photograph as a free-standing article on its own.  The Presiding Magistrate said at Paragraph 12(2)(b),

“The Tribunal thinks that the front cover and the Contents page do guide the readers to read the feature article starting from page 28.  As the Contents page shows the number “28”, the front cover and the contents together constitute a part of the whole feature article (i.e. pages 28 to 30, 32-34).  Therefore, all the above pages should fall within section 2 of the Ordinance and be read and classified as one article.”

16.  The Tribunal therefore regarded the index page photograph as part of the Article submitted for classification.  In Pao Wai Louis v Obscene Articles Tribunal [1995] 1 HKC 51, the Court of Appeal held that the Ordinance requires the Tribunal to consider an article as a whole.  On the facts of that case, the court held that to deprive a publisher of the possible benefit of the context in which a photograph was published by considering a submission of part only of an article was illegal.  Likewise, the Tribunal would not be fulfilling its statutory duty if it fails to consider the overall effect of an article by taking into account all relevant parts thereof.  One must remember that the Article was read by members of the public as a whole.

17.  On the facts of the present case, given the element of obscenity as discussed below in my judgment on the application for judicial review, I agree with the reasons given by the Presiding Magistrate that the index page photograph should be considered as part of the Article which the Tribunal could take into account in classifying the same.

18.  Further, I do not see the lack of reference to the index page photograph in the application by the Commissioner as a valid reason for depriving the Tribunal of jurisdiction to consider the Article as a whole.  With respect, I think Mr McCoy put the cart before the horse when he contended that the statutory notice issued by the Registrar under Section 19(2) defined the Article.  The notice was only issued after a classification had been made by the Tribunal.  What constitutes the whole of an article is a question of fact for the Tribunal to decide before making a classification.  Neither the Section 19 notice nor the description contained in the application submitted by the Commissioner could curtail that power of the Tribunal.  The prescribed application form under Rule 4 only requires the party submitting the application to give a general description of the article.  It would be wrong to read such a general description as if it were a pleading narrowly defining the jurisdiction of the Tribunal.

19.  In any event, insofar as necessary, I hold that the general description in the application submitted by the Commissioner was broad enough to empower the Tribunal to take into account of the index page in classifying the Article.  I therefore reject Ground 1.

B(3)  Onus and standard of proof

20.  Ground 2 relates to the Presiding Magistrate’s determination on onus and standard of proof.  The argument advanced at the Tribunal and the actual decision by the Presiding Magistrate were summarized in Para. 12(3) of the Reasons for Decision,

“(3)   Standard of Proof and Burden of Proof

(a) The Applicant submits that no matter the classification after the full review hearing is Class II (indecent) or Class III (obscene), it will inevitably lead to a criminal prosecution.  Therefore, the Respondent should shoulder the burden of proof at the present hearing and the Respondent has to prove beyond reasonable doubt that the subject article for classification should be classified as Class II (indecent) or Class III (obscene).

(b) The Tribunal thinks that full hearing by virtue of section 15 of the Ordinance is a review hearing of the interim classification, rather than any civil or criminal proceedings.  There should be no question about standard of proof and burden of proof.  In order to make a classification, all the Tribunal need to is to have careful and prudent regard to the guidance set out in section 10 of the Ordinance, the parties’ submissions and exhibits, and the contents of the article.  The Tribunal need not and must not take into consideration any civil or criminal consequences following the classification.”

21.  In my view, it is somewhat abstract to talk about burden and standard of proof in the Tribunal in general without specific reference to a particular issue. Whilst the ultimate question that the Tribunal has to decide in a proceedings for classification is whether an article is obscene or indecent by reference to the guidance set out in Section 10 of the Ordinance, it is plain that in the process the Tribunal might have to resolve a number of issues before it could reach a proper conclusion. It could be meaningful to talk about burden or standard of proof on some issues but not on the others. For example, in respect of standards of morality, decency and propriety that are generally accepted by reasonable members of the community under Section 10(1)(a), it is absurd to suggest that this should be subject to examination by reference to burden of proof, not to mention proof to the criminal or civil standard. The purpose of establishing the Tribunal is to put the members of the Tribunal into the shoes of reasonable members of the community to set the yardstick. On the other hand, in respect of the persons or age groups of persons to whom the article is likely to be published in Section 10(1)(c), when there are disputes, there might be scope for questions arising as to burden and standard of proof. Hence, it really depends on the context in which the matter is discussed.

22.  To frame the point in vacuum without any reference to any specific issue is unhelpful and in my judgment not a proper point of law that calls for determination. I therefore propose to examine the specific issue referred to by Mr McCoy to see whether the Tribunal’s decision was vitiated by the ruling of the Presiding Magistrate on burden and standard of proof.

23.  From his oral submissions and skeleton submissions under Ground 3, it can be gathered that the main complaint of Mr McCoy is that the Tribunal reached certain conclusions on the context of the Article by reference to some primary facts which had not been proved. The Commissioner contended before the Tribunal that the Article was obscene as the pictures depicted crime and violence that caused a feeling of indecency and repulsiveness. Mr McCoy submitted that such contention involved allegations of crime and violence which are allegations of primary facts and should be proved by calling the person concerned to give evidence. He relied on the principle “he who alleges must prove” as applied by Hartmann J in Wong Kam Kuen v Commissioner for TELA [2003] 2 HKC 21.

24.  To test the validity of this submission, it is important to identify what was the context in which the photographs were produced in the Article. The relevant context should be how a reasonable member of the community would read the Article. In most cases, the article itself should supply the answer. I think this was how the Tribunal had approached the matter in Paragraph 12(6)(c) to (f) of the Reasons for Decision in making reference to the context in which the photographs were used in the Article. In my judgment, in so doing, the Tribunal needed not and had not resorted to any matters extraneous to the Article to assess whether it is obscene or indecent.

25.  In short, this is case where the Article speaks for itself as far as the relevant context is concerned.

26.  The Article itself was before the Tribunal. It is, in my view, unnecessary for the Tribunal to go further to resolve whether what were said in the Article concerning the circumstances under which the photograph was taken were true and accurate by reference to extraneous evidence. A publisher cannot complain about the Tribunal taking the context of a photograph from the article in connection with which it was published. Having chosen such a context and obviously intending a reasonable reader to look at the photograph against such context, it does not lie in the mouth of a publisher to suggest that the factual basis of such context had to be proved by other evidence.

27.  Ground (2) therefore cannot avail the Appellant. That also disposes of Ground (3). The Tribunal needed not make any finding of facts as to the actual circumstances under which the photograph was taken. The Tribunal only needed to consider the context under which the photograph was exhibited in the Article. The context was supplied by the Article itself. Irrespective of the truth and accuracy of the statements set out in the Article, they remain as the context in which the Appellant intended its reader to consider the photograph. In my judgment, this is sufficient and no other primary facts had to be proved before the Tribunal in the classification proceedings.

28.  Mr McCoy cited a number of authorities highlighting the burden and standard of proof in respect of proceedings in the Tribunal. Most of those cases were decided in proceedings referred to the Tribunal by a criminal court. I shall deal with the distinction between classification proceedings and that sort of proceedings in the context of the judicial review. Given my analysis above, I do not propose to deal with the authorities because as I see it, the question of burden and standard of proof did not arise in the present case.

B(4)  The relevance of the context of the Article in deciding its classification

29.  Ground (4) attacks the logic of the Presiding Magistrate in Paragraph 12(6)(c) to (f) of the Reasons for Decision. In essence, Mr McCoy argued that it would be inimical to the freedom of expression if one could take the context of a publication from the Article itself. He submitted that the press was entitled to publish speculations and the effect of the Presiding Magistrate’s reasoning was to render speculations off-limits to the press. The submission focused on the Presiding Magistrate’s opinion that the public could legitimately expect a responsible media institution to verify the facts before publication and hence, the circumstances under which the photograph was taken as reported in the Article could be relied upon by a reader as accurate.

30.  For the reasons given above, the focus should not be laid on the truth or accuracy of the statements in the Article pertaining to the circumstances under which the photograph was taken. The proper focus should be how the Article informed a reasonable reader to view the photograph in question. There is no restriction imposed on a magazine against publishing speculations. However, if the speculations were published in a manner that is obscene or indecent, the fact that they were speculations could not absolve the publisher.

31.  Hence, although I would put the matter in a different way, I do not think Ground (4) could vitiate the determination of the Tribunal.

B(5)  Reference to the Film Censorship Ordinance

32.  Ground (5) challenges the Tribunal’s reference to the Film Censorship Ordinance Cap. 392 [“FCO”]. The Presiding Magistrate held as follows in Paragraph 12(4)(d) of the Reasons for Decision,

“(d)   However, the Tribunal considers that the elements in section 10 of the Film Censorship Ordinance are similar to the elements that must be considered by the Tribunal when classifying an article as Class II (indecent) or Class III (obscene).  When the Tribunal considers ‘standards of morality, decency and propriety’, the elements set out in section 10 of the Film Censorship Ordinance are very useful for reference.”

33.  Mr McCoy submitted that the two ordinances provide separate and distinct regimes of control and the only interface is where a decision of a censor is adduced before the Tribunal pursuant to Section 10(1)(a). Since it was not the situation here, the Tribunal, according to counsel, should not have regard to matters set out in the FCO.

34.  I agree that the regimes under the two ordinances are separate. The classification of films under the FCO is by reference to the suitability for exhibition having regard to the matters set out in Section 10(2). A film could be classified as (i) not suitable for exhibition at all (Section 10(4) FCO) or (ii) suitable and approved for exhibition to persons of any age (Section 12(1)(a) FCO) or (iii) approved for exhibition to persons of any age but qualified in advertisement that as “not suitable for children” or “not suitable for young persons and children” (Section 12(1)(b) FCO) or (iv) approved for exhibition only to persons who have attained the age of 18 years (Section 12(1)(c) FCO).

35.  The criteria under Section 10(2) FCO are (a) whether the film portrays, depicts or treats cruelty, torture, violence, crime, horror, disability, sexuality or indecent or offensive language or behaviour; and (b) whether the film denigrates or insults any particular class of the public by reference to the colour, race, religious beliefs or ethnic or national origins or the sex of the members of that class.

36.  In contrast, under Section 10(1)(a) of the Ordinance, the Tribunal is directed to make a classification by reference to “standards of morality, decency and propriety that are generally accepted by reasonable members of the community”. As demonstrated by the facts of Next Magazine Publishing Ltd v Commissioner for TELA (1995) 5 HKPLR 373, such standards could encompass standards of privacy which decent people in Hong Kong value as a human right, the invasion of which would constitute indecency (see p. 376B to C).

37.  Obviously, there are overlaps between the two sets of criteria. For example, there comes a point where a depiction in an article of cruelty, torture, violence, crime, horror, disability, sexuality or indecent or offensive language or behaviour would offend the standards of morality, decency or propriety generally accepted by reasonable members of the community to such an extent that it renders the article indecent or even obscene.

38.  Whilst generally it would not be necessary for a Tribunal to refer to the matters set out in Section 10(2) or (3) FCO in making a determination or classification under the Ordinance, I do not think the Tribunal can be criticized as taking irrelevant matters into account in making a passing reference to the elements set out in the FCO when it applies the test under Section 10(1) of the Ordinance. I do not see any harm for the Presiding Magistrate to regard it useful to cross check against the elements in Section 10 FCO in considering the standards of morality, decency and propriety so long as it is kept in mind that the regimes under the two ordinances are different. From the Reasons for Decision, it is obvious that all along the Tribunal had applied Section 10(1) of the Ordinance instead of Section 10 FCO.

39.  More importantly, if one were to examine the elements that the Tribunal did actually have regard to in coming to its classification of the Article, all the elements taken into account by the Tribunal in Paragraphs 18 to 21 of the Reasons for Decision were properly within the concept of obscenity and indecency as embraced by the standards of morality, decency and propriety.

40.  There is no merit in Ground (5).

B(6)  Invasion of privacy could be a relevant circumstance

41.  Ground (6) challenges the Presiding Magistrate’s approach to invasion of privacy or injury to an individual’s dignity. The relevant holding is at Paragraph 12(5) of the Reasons for Decision,

“(5)   Invasion of privacy and injury to the dignity

(a) Invasion of privacy and injury to the dignity of the person photographed is not a relevant or legal factor for the Tribunal’s consideration when making classification of the Article.

(b) Invasion of privacy or injury to the dignity per se is not sufficient to make an article Class II (indecent) or Class III (obscene).  However, when considering ‘standards of morality, decency and propriety’, the Tribunal must take into account the article’s particular characteristics and all the circumstances, including but not limited to ‘the subject article may involve the invasion of privacy and injury to the dignity of the person photographed.  Each case must decided on its own merits.”

42.  Mr McCoy submitted that the Ordinance should be construed narrowly as it is a piece of legislation restricting the freedom of expression. Privacy is, according to counsel, protected under common law and the Personal Data (Privacy) Ordinance Cap. 486 and the Ordinance should not be used for that purpose. In a nutshell, counsel contended that the invasion of someone’s privacy does not transform an otherwise not indecent photograph into an indecent one.

43.  As can be seen from the passages quoted above, the Presiding Magistrate held that invasion of privacy or injury to the dignity per se is not sufficient to render an article indecent or obscene. I think what the Presiding Magistrate did was no more than what Bokhary JA (as he then was) adverted to in Next Magazine Publishing Ltd v Commissioner for TELA (1995) 5 HKPLR 373 at p. 376 B to C. In fact, it seems to me that Bokhary JA went further than the Presiding Magistrate. According to His Lordship, if the invasion of privacy coupled with the consequential sale of the product of such invasion (in the form of an article in a magazine) was to the extent that offend the standard of decency generally accepted by reasonable members of the community, it could properly be branded as indecent. I therefore reject Ground (6) as well.

B(7)  Result of the Appeal

44.  There is no viable ground in the appeal and I dismiss the appeal accordingly.

C.  The judicial review

45.  Turning to the application for judicial review, I shall first examine Grounds 7 to 11 which I ruled to be inadmissible in the appeal (for the purpose of this judgment, I adopt the references to these grounds set out in the appeal papers).  After that, I will deal with additional points canvassed in the judicial review.

C(1)  Relevance of the manner of publication and the prevalent circumstances

46.  Ground 7 (the same as Para. 32H in the Re-Amended Notice of Application filed in HCAL 42 of 2003 [“the Notice”]) criticised the Tribunal as making an error of law in focusing its attention on the conduct of the Applicant in publishing the picture instead of the visual and textual representations in the Article itself. 

47.  Ground 8 (Para. 32I of the Notice) avers that the Tribunal misapplied Section 10(1)(b) and (e) of the Ordinance in considering the following,

(a) That the picture appearing in the Article nine times;

(b) That the dominant effect of the Article was one of ‘violence and crime’ causing emotions of ‘repulsion’ and ‘depravity’;

(c) That the nine reproduction of the picture revealed ‘from different angles and to varying degree the face, demeanour, expression and body of the person in the photo and the situation in which she found herself’;

(d) That the various reproductions of the picture were unnecessary;

(e) That the only purpose for reproducing the picture was to attract sales;

(f) That the Article did not have an honest purpose. 

48.  Ground 9 (Para. 32J of the Notice) challenges the Tribunal’s rationale that commercial exploitation of news could not constitute an honest purpose.

49.  These three grounds involve the examination of what the Ordinance mandates a Tribunal to examine in the performance of its duty in classifying an article and whether the Tribunal had performed that duty in accordance with the Ordinance. I shall deal with them together.

50.  Section 2(2) says for the purposes of the Ordinance, a thing is obscene if by reason of obscenity it is not suitable to be published to any person and a thing is indecent if by reason of indecency it is not suitable to be published to a juvenile.  Sub-section (3) further provides that “obscenity” and “indecency” include violence, depravity and repulsiveness.  It follows from these definitions,

(a) The Tribunal should take into account of any elements of violence, depravity and repulsiveness in an article in coming to the conclusion whether it is obscene or indecent;

(b) The distinction between “obscenity” and “indecency” is a matter of degree to be tested by reference to the class of readers or viewers that the thing is unsuitable to be published. 

51.  Section 10 of the Ordinance directs the Tribunal specifically to have regard to several matters in reaching its conclusion on whether an article is obscene or indecent,

(a) standards of morality, decency and propriety that are generally accepted by reasonable members of the community;

(b) the dominant effect of an article or of matter as a whole;

(c) the intended or likely group of readers;

(d) the location where the matter is publicly displayed and the likely viewers;

(e) whether the article or matter has an honest purpose or whether its content is merely camouflage designed to render acceptable any part of it.

52.  In my judgment, in directing that the Tribunal shall have regard to the dominant effect and purpose of an article, the Ordinance must envisage that there are cases where the element of obscenity or indecency stems from the context or circumstances under which the article is published. As much as a publisher is entitled to the benefit of a context of an article to resist any suggestion of obscenity or indecency (see Pao Wai Louis v Obscene Articles Tribunal  [1995] 1 HKC 51), the general public is also entitled to expect the Tribunal to take into account of the context in which an article is published to arrive at a conclusion on the obscenity and indecency of the same. In order words, it would be wrong for the Tribunal to confine itself solely to the visual and textual representations in an article. The Tribunal is entitled to consider what a reasonable reader would plainly understand as the subtle messages communicated by an article and assess whether these messages are indecent or obscene.  

53.  Sometimes these subtle messages are put across by the manner in which some sensitive materials are deployed in an article. In Ming Pao Newspapers v Commissioner for Television and Entertainment Authority (1997) 7 HKPLR 314, the late Jerome Chan J made these observations at p. 321 with regard to the application of the honest purpose criteria under Section 10(1)(e),

“It would be wrong in law to hold an intent to use a nude photograph to attract the attention of readers to the adjacent text, or to make reading more interesting and enjoyable, could not, under any circumstances, be an honest purpose under the guiding principle for the publishing of an article depicting nudity. However, it would not mean that publishers are free to publish all forms of nudity simply by juxtaposing it to a brief text describing the nudity. Unrestricted publication of inappropriate nudity is restricted by the application of a necessity test in another manner. Though the necessity test ought not be applied in the consideration of the use of photograph per se, it could be applied against the manner of exposing the nudity and the extent of nudity in the photograph that would be reasonably justified and required by the text. Depicting nudity in a photograph in an excessive manner unwarranted and not required by the text reporting the news would not give legitimacy to the nudity under the pretext of an honest purpose.”

54.  Sometimes, the obscenity or indecency lies in the publication of matters which a reasonable and decent person in our community would regard as an undue invasion of privacy. In Next Magazine Publishing Ltd v Commissioner for Television and Entertainment Licensing Authority (1995) 5 HKPLR 373, neither the photographs nor the text of the article concerned (as summarized by Bokhary JA, as he then was, at p. 374B to D) were remarkable. His Lordship said at p. 376A that had this been a fictional account, it might not have been indecent. The element of indecency was identified succinctly at p. 376B to C,

“There are standards of privacy which decent people in Hong Kong value as a human right. And the privacy of the naive couple concerned, who did not seem to understand curtain walls or have contemplated telephoto lenses, was invaded and, not to put too fine a point on it, sold in circumstances which branded the result as indecent.”

55.  Hence, the assessment of an article for the purposes of the Ordinance transcends the examination of the visual and textual representations set out in it. Enquiry on the dominant effect and the honest purpose of an article demands a higher degree of sophistication. The legislature requires and the general public expects the Tribunal to be vigilant to safeguard our community against obscenity and indecency of more subtle forms.          

56.  Due to the long adjournment between the first hearing and the final hearing, I have re-read the Tribunal’s Reasons for Decision a number of times. I do not think there is any error of law in the approach adopted by the Tribunal in coming to its conclusion, in particular the reasoning set out in Paragraphs 15 to 21. For reasons canvassed above, the Tribunal is entitled to, and indeed it is obliged to, have regard to the circumstances and the manner in which the Article was published in addition to what were the displayed in terms of the visual or textual representations in it.  Mr McCoy submitted that the conduct of the Appellant had become the focus. I would prefer to describe the matters alluded to by the Tribunal as the prevalent circumstances and the manner in which the story was presented in the Article. The Tribunal said in Paragraph 18(9),

“…the standard of morality of the community is not only about whether the photograph shows nipple or the size of the photograph. It embraces the sense behind. After the members of the community publicly condemned the publication of the nude photograph was an act “Not Acceptable By Any Standard”, the publisher still decided to follow the EastWeek to publish the nude photo. It amplified the relevant incident and fuelled the gossips.” 

57.  On the facts of the present case, I am of the view that the Tribunal was entitled to place significance on these matters. I therefore reject Ground 7.

C(2)  A fresh decision is made on review

58.  I have difficulties in understanding Mr McCoy’s criticism of the Tribunal’s final classification by reference to the interim classification. It is quite plain to me that in a review, the scheme of the Ordinance envisages the Tribunal to consider the matter afresh. Hence, it is specifically provides in Section 15(2)(b) of the Ordinance that those adjudicators who have taken part in the interim classification shall not sit as a member of the Tribunal at the full hearing. The interim classification is only a preliminary assessment. The Tribunal is not required to give reasons for it (Section 14(3)(a) of the Ordinance).

59.  Whilst the review could be presided by the same magistrate (the Ordinance does not disqualify the same magistrate from sitting), it must be expected that the magistrate, as a professional judge, would disregard the interim classification altogether in considering submissions at the full hearing. The full hearing will be conducted in public (Section 16). Further, the minimum number of adjudicators involved at the review is larger than those at the interim classification. On the worst case scenario, the magistrate is only one out of five members constituting the Tribunal in a review. In the unlikely event where a party has a legitimate concern regarding a magistrate’s apparent or actual bias, a party concerned can make an application for recusal under well established common law principles. Given the administrative nature of classification proceedings (see discussion below), I consider that there are sufficient safeguards in place to ensure the fairness and integrity of the review procedures.

60.  Given that the assessment at the review would be a fresh consideration of the article, I see no justification for holding that the Tribunal should somehow be constrained by matters considered at the interim classification.

C(3)  The dominant effect

61.  As a matter of fact, there were nine reproductions of the Picture in the Article. The remarks of the Tribunal concerning the differences of the nine reproductions have to be understood in the context of the whole of Paragraph 19(1) of the Reasons for Decision.  It should also be read together with Paragraph 18(4) and (5). It is, in my view, rather unfair for Mr McCoy to suggest that the Tribunal could not reasonably make such comments when there was only one Picture taken from one angle. The Tribunal had clearly acknowledged that there was only one photo. What the Tribunal said at that part of the Reasons was to highlight that different parts of the victim is covered in each reproduction. The overall effect is that a reasonable reader would have no difficulty in gathering the pain and distress suffered by the victim from those nine reproductions.

62.  This led the Tribunal to conclude that the dominant effect was to depict violence and crime. It is not the function of this court to step into the shoes of the Tribunal. This is particularly important when the legislature has specifically delegated this task to a specialist tribunal. I only need to say in my view, the conclusion of the Tribunal on that point, viz. readers who read the Article would feel repulsive, is one reasonably open to it. The weight that is to be attached to this factor is also a matter within the province of the Tribunal and Mr McCoy failed to persuade this court that I have any justification to intervene.

C(4)  Lack of honest purpose

63.  As regards the observations of the Tribunal on the lack of honest purpose, the Tribunal was actually applying the necessity test to the manner in which the Article exposed the nudity of the victim against the extent of nudity in the photograph that would be reasonably justified and required by the story that the Article carried. This is in line with the approach laid down by the late Jerome Chan J (see Paragraph 52 above).   

64.  I hold it is reasonably open to the Tribunal to conclude as it did that the manner in which the story was presented in the Article, including the way in which the Picture was used repeatedly, was to camouflage the real intent or purpose: to exploit the pain and distress of a victim of crime with the repeated use of the Picture to further the Appellant’s commercial interest.

65.  Therefore, Ground 8 fails.

66.  Contrary to what is asserted under Ground 9, the Tribunal did not hold that commercial exploitation of news could not ever be an honest purpose. The Tribunal expressly acknowledged in Paragraph 18(2)(a) and (b) that commercial exploitation of news per se is not objectionable. In my judgment, the Tribunal rightly took the view that in the circumstances of this case, the manner in which the Appellant exploited this piece of news (involving the unjustifiable repeated reproductions of the Picture with insufficient regard to the feeling of the victim) should be taken into account in considering whether the Article had so traversed the standard of morality, decency and propriety generally accepted in the community that it should be classified as obscene. Ground 9 is therefore without merits.

C(5)  Reference to “comparables”

67.  There is no reference to Ground 10 in the Appellant’s written submissions. Mr McCoy said very little on this ground in his oral submissions. Rightly so. In an assessment of this nature, it is quite plain that the classification of each article might involves different considerations and it is futile and unhelpful just to pinpoint one single facet of the case and compare it with another case which has completely different background. The element of obscenity as found by the Tribunal in the present case does not hinge much on the nudity shown in the Picture. The circumstances and the manner in which the “comparables” depicting nude victim of crimes are wholly different. In my view, the Tribunal had adequately dealt with the submission on comparables in Paragraph 22 of its Reasons.

C(6)  Why is it obscene?

68.  As mentioned above, the distinction between obscenity and indecency under the Ordinance is largely a matter of degree by contrasting unsuitability for publication to all persons with unsuitability for publication to juvenile. Once the Tribunal concluded that the Article is unsuitable by reason of obscenity to be published to anybody, there is no need for it to consider whether it is indecent. The Tribunal has given full reasons why it classified the Article as obscene.

69.  Mr McCoy submitted that there is no logical or necessary connection between the adverse findings of the Tribunal and the conclusion that the Article was obscene. I do not agree. It is quite obvious that the Tribunal was of the view that the circumstances and the manner in which the story pertaining to the Picture was presented in the Article were so repulsive by the standards of morality, decency and propriety generally accepted by reasonable members of the community that it was unsuitable for publication to any person. The repulsiveness lies in the publication itself. There is no substance in Ground 11.  

C(7)  Constitutional challenges

70.  The other challenges in the judicial review focus on the constitutionality of the statutory scheme under the Ordinance. Broadly speaking, Mr McCoy contended constitutional safeguards regarding criminal proceedings should apply equally to classification under Part III of the Ordinance as well as determination under Part V. Insofar as the statutory scheme falls short of those safeguards, the classification proceedings are unconstitutional. The following specific defects were highlighted by counsel,

(i) Admissibility of evidence;

(ii) Absence of public hearing for the purposes of interim classification;

(iii) Adjudicators not being required to take judicial oath.

(iv) Right of appeal as interpreted by the Court of Final Appeal in Oriental Daily Publisher Ltd v Commissioner for TELA [1998] 4 HKC 505 is too narrow.

71.  The foundation of this challenge is summarized by Mr McCoy in Paragraph 4.1 of his submissions of 23 December 2004,

“(i) In classifying an article under Part III of the Ordinance where an article has been published, the Tribunal is deciding an essential ingredient of a criminal offence;

(ii) In exercising the classification jurisdiction under Part III, the Tribunal is effectively exercising a criminal jurisdiction no different from its determination jurisdiction under Part V;

(iii) As such, the procedure for classification (including an appeal from a decision made thereunder) must conform to the requirements of a fair hearing and, in particular, the minimum requirements of a criminal trial laid down in BoR 10 and 11;

(iv) The procedure for classification provided by way of Sections 11(b), 14(1)(a), 15(1) and 30(1) falls short of the requirements of the a fair hearing and is unconstitutional.”

72.  In addition, Mr McCoy submitted that as classification involves the determination of a subject’s ‘rights and obligations in a suit at law’, BoR 10 is engaged in any event. Counsel cited Tre Traktorer Aktiebolag v Sweden (1989) 13 EHRR 309; Benthem v Netherlands (1985) 8 EHRR 1.

73.  In dealing with these constitutional challenges, I shall first examine the nature of classification proceedings under the Ordinance.  Mr McCoy referred this court to some Strasbourg jurisprudence to contend that for constitutional purposes, the expression “criminal proceedings” has an autonomous meaning: Engels v Netherlands (1976) 1 EHRR 647 at Para. 82; Campbell & Fells v United Kingdom (1985) 7 EHRR 165 at Paras. 67 to 73.  I have some doubts whether we can apply the autonomous principle in these cases directly in the context of a constitutional challenge in Hong Kong.  The backgrounds leading to the adoption of the European Convention on Human Rights are not the same as the promulgation of the Basic Laws and enactment of the BoR in Hong Kong.  Counsel have not developed their arguments on this particular aspect in the course of submissions and I will just assume (without deciding) for present purposes that the principles set out in those cases are applicable.  The essential point is that a categorisation under the primary legislative framework is, though relevant, not conclusive.  One should also have regard to the nature of the offence and the nature and severity of potential penalty.

C(7)(a)  Classification and determination: two distinct sets of proceedings

74.  At the hearing on 13 June 2006, Mr McCoy argued that on proper construction of the Ordinance, once a classification has been made under Part III, the question of obscenity or indecency has been conclusively decided and there is no scope for a further determination in any subsequent criminal trial.

75.  The scheme of the Ordinance suggests that classification and determination are two separate and distinct sets of proceedings, albeit by the same Tribunal.  Section 8(1) provides for the jurisdiction for determination upon referral by a court or a magistrate.  It comes under Part V.  Section 11(a) stipulates that in the exercise of that jurisdiction, the Tribunal shall have the powers of a magistrate under the Magistrates Ordinance.  In my judgment, it quite plainly follows from Section 29 that the determination proceedings should be regarded as part of the criminal or civil proceedings in which the referral is made.  The rules of evidence and practice and procedure leading to a determination by the Tribunal should follow those adopted in the referring proceedings.

76.  In contrast, Section 8(2) provides for the jurisdiction for classification and some procedures are set out in Part III.  Section 11(b) empowers the Tribunal to determine its own procedure in classification proceedings.  In the present context, it is important to note that Section 11(b)(i) expressly authorizes the Tribunal to receive and consider any material, whether by way of oral evidence, written statements, documents or otherwise, notwithstanding that such material would not be admissible in evidence in civil or criminal proceedings.

77.  Mr McCoy based his argument on Sections 29(2) and 33.  Counsel submitted that Section 33(1) has the effect of turning a classification set out in a Section 19(2) notice into a conclusive and binding decision of the issue of obscenity or indecency.  Because of that, there could no longer be any further question arising on the same issue.  It follows that Section 29(2) could not be engaged as it only provides for referral to the Tribunal for determination when such a question arises.  In other words, a Part III classification will exclude the Tribunal’s (or indeed any other court’s) determination jurisdiction.

78.  Ingenious though this argument is, I am firmly of the view that it is incorrect both as a matter of authorities and proper construction of the Ordinance.  I was told by Mr Zervos SC that as a matter of practice, the Tribunal and practitioners regard classification and determination as two different sets of proceedings.  In a criminal prosecution of a charge under Sections 21 to 24, even if there was a classification after publication, there would be another determination by the Tribunal under Part V.  Mr McCoy, however, told this court that in his experience, a defendant in that sort of scenario would rarely attend the determination proceedings.  It is up to a defendant with the benefit of whatever advice he may have to decide whether he wishes to contest the issue of obscenity or indecency in the determination proceedings in the wake of a classification.  Provided that there is a clear dichotomy between classification and determination (viz. with proper safeguards against any suggestion of classification being a pre-judging of the issue) I am of the view that this practice of the Tribunal is in accordance with the law.

79.  It is trite law that the duty of the court is to give a purposive construction to a statute.  Thus, Lord Bingham said in R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 at p. 695,

“The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose.”

80.  The scheme of the Ordinance reflects a clear intention on the part of the legislature to draw a distinction between classification and determination proceedings.  I have already highlighted some aspects of the distinction in earlier paragraphs.  The pre-amble of the Ordinance identifies classification and determination as two distinct functions of the Tribunal.  The offences created by the Ordinance under Part IV also predicate upon such a distinction.  If an article has not been classified at the time of publication, the publisher should be charged with one of the offences under Sections 21 to 24 or 27A.  On the other hand, if an article has been classified at the time of publication, charges should be laid in respect an offence created by Sections 25 to 27.  There is a specific defence regarding publication of obscene articles under Sections 21(2)(a) and (b) for a person being charged with an offence under Section 21(1) in respect of a classified article.

81.  More importantly, there are specific defences if an article has been classified as Class I at the time of commission of the offence, see Sections 21(2)(b), 22(2)(a), 24(3), 27A(2)(a).  Such specific defences would be otiose if the legislature intends a classification to be conclusive for all purposes, including any question that may arise as to obscenity or indecency in criminal proceedings.  If Mr McCoy were correct in his submission, once classified as Class I, the offence could not be established by reason of the fact that the article is neither obscene nor indecent.  There is no need to consider any specific defences.  The provision for such defences would only be meaningful if the legislature envisaged that there could be cases where the determination in a criminal trial under Part V as regards the issue of obscenity or indecency is at variance with that in a classification under Part III.

82.  Further, under Section 17 of the Ordinance, a Tribunal can reconsider a classification.  There is no time limit for such reconsideration although Section 17(2) gives a discretion to the Tribunal to refuse a request for reconsideration if the article was classified within a period of three years prior to the submission.  This can hardly be consistent with a final determination of an issue in the context of criminal proceedings.

83.  In Pao Wai Louis v Obscene Articles Tribunal  [1995] 1 HKC 51, the Court of Appeal dealt with a case of post-publication classification pending criminal proceedings.  Judicial review was sought regarding the classification.  A stay of the criminal proceedings had been granted.  It was lifted by Mayo J (see (1994) 4 HKPLR 5).  On appeal, the lifting of the stay was upheld.  Power ACJ said at p. 55G (with the concurrence of Penlington JA),

“We are further satisfied that Mayo J was quite right to lift the stay upon the criminal proceedings.  Our decision [viz. allowing the appeal and setting aside the classification of the article as obscene] in no way inhibits the prosecution in those proceedings.  That prosecution does not in any way depend upon there having been a prior classification.  The issue of obscenity which those proceedings addresses will have to be referred to and dealt with by the tribunal pursuant to Section 29 of the Ordinance.”

84.  Plainly, the learned Acting Chief Justice held that classification and determination are separate proceedings and the decision in one set of proceedings should not affect that in the other.  It is a direct authority against Mr McCoy’s submission.

85.  Godfrey JA gave some reasons of his own in allowing the appeal.  His Lordship did not dissent from the Acting Chief Justice’s agreement with the lifting of the stay.  By way of obiter, Godfrey JA referred to Section 33 of the Ordinance and expressed some concern about post publication classification pending criminal trial.  At p. 57B, His Lordship said,

“I hope it was not the case, but if this submission for classification was made for the purpose of influencing the result of the prospective criminal proceedings, then it was an illegitimate exercise of power for an ulterior or collateral motive and the classification would fall to be struck down on this ground as well.”

86.  I do not read that dicta as holding that post publication classification pending criminal trial per se constitutes illegitimate exercise of power.  If it was done with a view to influence the result of the criminal proceedings, that would of course be wrong.  On the other hand, Mr McCoy quite fairly accepted that there are cases where classification proceedings could be evoked for legitimate reasons notwithstanding that criminal proceedings are being contemplated.  That is precisely why Godfrey JA expressed a hope that this was not the motive behind the classification proceedings in that case.  Further, the underlying premise of such a hope must be that it is possible to segregate a classification from a determination.  If Mr McCoy were correct in his construction of the Ordinance, a classification would inevitably have a direct impact on the criminal proceedings and the question of motive is irrelevant.

87.  It should be mentioned that in the present case, Mr McCoy did not suggest any ulterior motive on the part of the Commissioner for Television and Entertainment Licensing in submitting the Article to the Tribunal for classification.  Bearing in mind the circumstances leading to the publication of the Article as set out in Paragraphs 1 to 5 of the Reasons of the Tribunal, the submission was clearly a proper and legitimate exercise of power.

88.  An attack as to the legitimacy of a post publication classification pending criminal proceedings was rejected by Hartmann J in Mong Hon Ming v Anthony Yuen HCAL 137 of 2004, 15 November 2005.  I respectfully agree with Hartmann J’s observations in that judgment on the legitimacy of such classification and the relationship between classification and determination.  In particular, I agree that even in respect of one-off publications, there may be occasions where public interest demands classifications be made  (see Para. 58).   The facts of the present case is a good illustration of the sort of copy-cat mentality that a classification might discourage.  Even though it is not a re-publication, it is unreal to suggest that a classification would not have any deterrent effect on others intending to publish articles of similar nature.

89.  Subject to my elaboration below on admissibility of classification in Part V proceedings, I agree with Hartmann J on his conclusion on the effect of Section 33 set out in Para. 73 as follows,

“Section 33(1) does not go to the question of admissibility (and thereby relevance).  Section 33, read as a whole, deals only with conclusive proof of a ‘classification’ or a ‘determination’ when such proof is required; for example, in respect of a classification, if proceedings are taken against a person pursuant to Section 25 of the Ordinance.”

90.  Mr McCoy submitted that there could be cases where a defence would tender a classification as part of its case.  That would be so if a defendant relies on those defences mentioned in Paragraphs 80 to 81 above.  In those cases, the fact that has to be established is that a classification has been made, and the Section 19(2) notice is conclusive proof of that fact.  The notice is not tendered as proof of the obscenity or indecency or the lack of these elements.

91.  Mr McCoy submitted that evidence of a classification can be evidence of whether an article is obscene or indecent or neither.  He suggested in face of a charge under Section 21, a defendant may tender a classification of Class II to disprove obscenity.  I do not agree.  The classification by the Tribunal in such circumstances is a mere expression of opinion and it can never be admissible as evidence of fact in the determination proceedings (see Hollington v Hewthron [1943] 1 KB 587; Hui Chi-ming v The Queen [1992] 1 AC 34).

92.  Therefore, it is wrong to suggest that by reason of Section 33(1) a classification under Part III constitutes a conclusive determination of the issue of obscenity and/or indecency in criminal proceedings.

C(7)(b)  Is classification proceedings per se criminal in nature?

93.  Mr McCoy submitted that a classification has criminal ramifications by reason of the offences under Sections 25 to 27.  Those were offences in respect of publication, possession or importation after an article has been classified.  As submitted by Mr Zervos, the actus reus of the offences were the acts of publication, possession or importation of a classified articles.  The classification itself does not affect any prior acts done.  The classification proceedings do not determine whether acts done prior to the classification have any criminal consequences.  Even though it would lead to the consequences of criminalization of any future publication, possession or importation, I do not consider that this feature as sufficient to put classification into the category of criminal proceedings even if the criteria set out in the Strasbourg jurisprudence are applied.

C(7)(c)  Does classification involves the determination of rights and obligations in a suit at law?

94.  In Mong Hon Ming v Anthony Yuen  HCAL 137 of 2004, 15 November 2005, Paras. 69-71, Hartmann J further held that classification is administrative in nature.  I agree.  For reasons above, classification is not a determination of a criminal charge.  Nor is it a determination of rights and obligations in a suit at law within the meaning of Article 10 of the BoR.  Whilst I recognize the force of the argument that a classification, coupled with the offences under Sections 25 to 27, would have the practical effect of barring or restricting the publication of a Class II or Class III article, and as such may have financial implications for a publisher who intends to publish the article, this does not conclusively point to the engagement of Article 10.   Simor & Emmerson, Human Rights Practice Para. 6.006,

“Where the substantive content and effect of a domestic law right are of a predominantly personal, private, or economic nature, the right at issue will usually be a ‘civil right’ for the purposes of Art.6 …. However, the fact that a dispute has ‘pecuniary’ implications will not necessarily be sufficient to bring it within the scope of Art.6 if the pecuniary aspect of the dispute is subsidiary to what is essentially a public law challenge.  Proceedings ‘do not become  ‘civil’ merely because they also raise an economic issue’.”

95.  In Ma Wan Farming v Chief Executive in Council [1998] 1 HKLRD 514, the Court of Appeal held that the engagement of Article 10 is primarily dependent on the character of the right at issue.  Simor & Emmerson, Human Rights Practice Para. 6.007 suggests the proper approach to be,

“In assessing whether the character of the right is predominantly ‘private’ or ‘public’, the Court will balance the ‘features’ of the right at issue.”

The case of Feldbrugge v Netherlands (1986) 8 EHRR 425 was cited as an example of such approach. 

96.  In Konig v Germany (1978) 2 EHRR 170, it was held,

“Whether or not a right is to be regarded as civil within the meaning of this expression in the Convention must be determined by reference to the substantive content and effects of the right – and not its legal classification – under the domestic law ...”

97.  What is the right at issue in classification proceedings?  At first blush, it would be easy to fall into the trap of pinpointing it as the right to publish an article.  Possession and importation for the purpose of publication under sections 26 and 27A could be regarded as ancillary to the right of publication.  On reflection, I am satisfied that for present purposes such analysis is flawed and inadequate.  It leans too much in favour of a publisher as if he has a presumed private right to publish an article.  That is not the law.  

98.  In a simple case, there are at least two directly affected parties to a publication: the publisher and the public to whom the article is or is intended or is likely to be published.  If the article contains information about a third party or some third parties (as in the present case), a publication would also affect the third party or parties concerned.  A publication may impinge upon the private law rights of the third parties and this is typically protected by the law of defamation and other law of torts.  The determination of such rights would be a determination of rights and obligations in a suit at law under Article 10.

99.  At the same time, a publication affects the general public to whom an article is intended or is likely to be published.  The public has a right in deterring the publication of obscene articles and restricting the publication of indecent articles.  Article 16(3) of the BoR provides that the exercise of the freedom of expression is subject to restrictions provided by law that are necessary for, inter alias, the protection of national security or of public order, or of public health or morals.  In other words, the freedom to publish is not absolute.

100.  It is noteworthy that Mr McCoy did not advance any challenge based on the test of necessity under Article 16(3).

101.  Having regard to the legislative objectives under the Ordinance and the statutory scheme for classification, I am of the view that the right at issue in classification proceedings is predominantly ‘public’.  The right in question should be formulated as the public right to control publications of obscene and indecent articles under Article 16(3).  Unlike the social insurance scheme under consideration in Feldbrugge, the economic interests of an intended publisher is not the focus in classification proceedings.  Article 16(3) provides that a publisher’s freedom of expression has to be exercised responsibly.  Classification proceedings is one of the means to strike the right balance.  The legislature delegated the duty to find the balance to the Tribunal by reference to the guidance set out in Section 10.  The relevant matters that the Tribunal is directed to have regard to point clearly to the public character of the process and the right in question.

102.  In this connection, I would respectfully quote a few passages from the insightful observations by Lord Hoffmann on the fundamental distinction between an administrative decision on public interest and a determination of civil rights at Paras. 74 to 76 in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 at p. 326-7.

“Apart from authority, I would have said that a decision as to what the public interest requires is not a ‘determination’ of civil rights and obligations.  It may affect civil rights and obligations but it is not, and ought not to be, a judicial act such as article 6 has in contemplation.  The reason is not simply that it involves the exercise of a discretion, taking many factors into account, which does not give any person affected by the decision the right to any particular outcome….  But a decision as to the public interest … is quite different from a determination of right.  The administrator may have a duty, in accordance with the rule of law, to behave fairly (‘quasi-judicially’) in the decision-making procedure.  But the decision itself is not a judicial or quasi-judicial act.  It does not involve deciding between the rights or interests of particular persons.  It is the exercise of a power delegated by the people as a whole to decide what the public interest requires.” (Para. 74, my emphasis)

His Lordship then quoted a dictum of Lord Greene MR in B Johnson & Co. Ltd v Minister of Health [1947] 2 All ER 395 at 398-9, and it is worth reminding ourselves again the fundamental nature of an administrative decision,

“the functions of the minister in carrying these provisions into operation are fundamentally administrative … subject only to the qualification that, at a particular stage and for a particular and limited purpose, there is superimposed on his administrative character a character which is loosely described as ‘quasi-judicial’. … That decision must be an administrative decision, because it is not the to be based purely on the view that he forms of the objections, vis-à-vis the desires of the local authority, but is to be guided by his view as to the policy which in the circumstances he ought to pursue … on the substantive matter … there is a third party who is not present, viz, the public, and it is the function of the minister to consider the rights and the interests of the public.  That by itself shows that it is completely wrong to treat the controversy between objector and local authority as a controversy which covers the whole of the ground. It is in respect of the public interest that the discretion that Parliament has given to the minister comes into operation…”   (my emphasis)

103.  Although the Tribunal is not a minister and its decision in classification proceedings has to be made on a case by case basis, it is nonetheless a decision based on public interest and administrative in nature.  Such a decision should not be based purely on the arguments advanced by the parties present at the hearing.  The Tribunal has to protect the public interest in accordance with the guidance set out in Section 10(1) of the Ordinance.  As Lord Hoffmann said in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 at p. 325B Para. 69,

“… sometimes one cannot formulate general rules and the question of what the general interest requires has to be determined on a case by case basis.  … In such cases Parliament may delegate the decision-making power … to ministers of the Crown responsible to Parliament.”

104.  Therefore, I do not regard classification under the Ordinance as falling within the scope of Article 10 of the BoR.

C(7)(d)  In any event, no infringement of Article 10

105.  Mindful of the fact that the jurisprudence relating to the concept of determination of rights and obligations in a suit at law is developing (see Runa Begum v Tower Hamlets LBC [2003] 2 AC 430 at Paras. 6, 60-70, 82-94, 115), I will also examine whether this court should grant any relief assuming that a classification under the Ordinance does engage Article 10.

106.  In Runa Begum v Tower Hamlets LBC [2003] 2 AC 430, the House of Lords held that in applying the requirements of article 6(1) of the European Convention (the equivalent of Article 10 of BoR) to administrative decisions which were determinative of civil rights, the lack of independence of the tribunal can be cured by measures safeguarding the fairness of the proceedings and its decision being subject to ultimate judicial control by a court with jurisdiction to deal with the case as its nature required.

107.  The same principle was applied in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295.

108.  To satisfy the requirement under Article 10, it is not necessary for the court exercising ultimate judicial control to have the power to fully review the merits of every aspect of the decision of the administrative tribunal.  Lord Hoffmann comprehensively reviewed the relevant authorities in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 at Paras. 77-88 and 98-123.  In Bryan v United Kingdom (1995) 21 EHRR 342, Mr Bratza said at p. 354,

“It appears to me that the requirement that a court or tribunal should have ‘full jurisdiction’ cannot be mechanically applied with the result that, in all circumstances and whatever the subject matter of the dispute, the court or tribunal must have full power to substitute its own findings of fact, and its own inferences from those facts, for that of the administrative authority concerned. Whether the power of judicial review is sufficiently wide to satisfy the requirements of article 6 must in my view depend on a number of considerations, including the subject matter of the dispute, the nature of the decision of the administrative authorities which is in question, the procedure, if any, which exists for review of the decision by a person or body acting independently of the authority concerned and the scope of that power of review.”

109.  Given my above analysis as to the nature of the Tribunal’s decision in classification proceedings and the public interest at issue, I am of the view that the appeal provided for under Section 30 and the availability of redress by way of judicial review provide sufficiently wide judicial control to satisfy the requirement under Article 10 if it is engaged at all.  Questions as to obscenity and indecency must be considered in the light of the prevalent standards of morality, decency and propriety in the community.  Questions as to the dominant effect of an article, persons to whom an article is likely to be published and honest purpose have to be considered with a fair dosage of common sense.  These questions are eminently suitable for decision by a specialized tribunal made up of a professional judge and lay adjudicators.

110.  What happened in the present case provides good illustration as to how a Tribunal’s decision on classification could be challenged in an appeal or in judicial review.  The rationality, legality and fairness of a decision can be tested in court.

111.  The availability of redress by way of judicial review and the sufficiency thereof for the purposes of Article 10 also dispose of Mr McCoy’s criticism as to the narrow scope of the appeal provided under Section 30.

C(7)(e)  Fairness of the classification proceedings

112.  As regards the fairness of the decision making process in the Tribunal, it is necessary to consider two specific attacks by Mr McCoy: (a) absence of hearing before interim classification; and (b) lack of requirement on the part of the adjudicators to take judicial oath.

113.  Before I deal with these criticisms, I should mention that there are safeguards in place to ensure the independence and impartiality of the Tribunal and fair disposal of business in classification proceedings.  The Tribunal consists of a presiding magistrate and adjudicators from a panel appointed by the Chief Justice.  Only the Chief Justice has the power to remove an adjudicator from the panel and such power can only be exercised on specified grounds under Section 5(6).  Members of each tribunal are appointed by the Registrar of the High Court.

114.  Subject to Mr McCoy’s complaint as to lack of judicial oath, there is no suggestion that the members are not independent or impartial.  They have no connection or association whatsoever with the Commissioner for Television and Entertainment Licensing who may submit an article for classification.  Nor is it suggested that the members have dealings with the government that may impinge on their impartiality.

115.  Interim classification aside, the Tribunal only makes a decision after proper notice has been given in newspapers and a full hearing at the request of the persons affected.  The full hearing has to be held in public.  As happened in the present case, legal representation is allowed at the full hearing.  The Tribunal has a duty to give reasons and such reasons can be tested on appeal to the Court of First Instance or in judicial review proceedings.

116.  Further, there is a power to reconsider a classification under Section 17.  Any person who would have been entitled to submit an article for classification can request reconsideration.

117.  In my judgment, these built-in safeguards are sufficient to maintain the independence and impartiality of the Tribunal.  The safeguards are further buttressed by the common law rule of nature justice.  If a party interested has proper reason to be concerned, an application can be made to seek the recusal of the presiding magistrate or an adjudicator.  No such application had been made in the present case.

118.  Coming now to Mr McCoy’s submissions regarding lack of judicial oath being taken by the adjudicators, the first point to note is that I have held that in deciding on a classification, the Tribunal acts as an administrative body.  Second, the adjudicators are not judicial officers.  There is no reason why the adjudicators should take the judicial oath.

119.  Mr McCoy submitted that the adjudicators should at least be required to take an oath like a juror.  I do not see why such an oath is essential in respect of the performance of their duty in classification proceedings which is administrative in nature.  I have no doubt that an oath is a recognised form of acknowledgment of the innate gravity and importance of deciding the matter at issue fairly and impartially.  However it by no means follows that this is the only possible manifestation of the independence and impartiality of the adjudicators.  Although Mr McCoy cited a plethora of cases on the topic, counsel have not drawn my attention to a single case where a decision maker was held to be bias or non-independent by reason of his not taking an oath.

120.  Regarding the interim classification, I have already discussed the integrity of the review procedure and its segregation from the interim classification in dealing with Ground 8.  In the premises, the procedural fairness of a classification following a review hearing (as in the present case) should not be tainted by whatever unfairness arising from the procedures adopted in respect of an interim classification.

121.  Taking everything into account, I do not discern any valid cause for questioning the fairness of the proceedings before the Tribunal.

122.  Once it is appreciated that a post-publication classification has nothing to do with the criminal proceedings, Mr McCoy’s complaint about the laxity in admissibility of evidence in classification proceedings lose its significance.  There is no reason why evidential rule could not be more relaxed in an administrative process so long as the fairness of the proceedings as a whole can be maintained.  In the light of my conclusions on the substantive grounds raised in the present appeal and judicial review, I do not see any valid criticism regarding the evidence admitted by the Tribunal in coming to its decision in question.

123.  Hence, the constitutional challenges also fail.

C(8)  Results in the judicial review and costs order

124.  The application for judicial review is dismissed.

125.  I make a costs order nisi that the Applicant shall pay the costs of the Respondent in both the appeal and the judicial review.

D.  Postscripts

126.  I mentioned earlier that classification proceedings under Part III are distinct from the determination proceedings under Part V.  It is important that such distinction should be maintained not only in form but also in substance.  The two sets of proceedings should be strictly segregated from each other.  Mr Zervos properly reminded this court that in the present proceedings we are not concerned with the criminal proceedings.  It may be that the magistrate who presided in the classification proceedings and the adjudicators who had taken part therein would not participate in the determination proceedings.  If it happens otherwise, it is most likely that the Applicant can properly apply to have those previously involved in the classification proceedings to be recused in the determination proceedings.  Whatever happens, it should be strictly borne in mind that the classification has no relevance whatsoever in the criminal proceedings and in the latter context, the Tribunal should not be influenced by the classification.

127.  Although the constitutional challenges failed, I venture to suggest that there should be a review as to whether more measures should be in place to confine post publication submission for classification to proper cases and to remove any appearance of such classification as a pre-action ruling for the benefit of the prosecution or an attempt to influence the determination under Part V.  This is particularly so when the same tribunal (even taking into account of the possibility of a tribunal with a different membership) is involved in the judicial determination of the same issues and apart from the Presiding Magistrate, the other members are lay adjudicators.  In so saying, I am not suggesting that there were any hints that these abuses have occurred.  However, justice must not only be done, it must also be seen to be done.

128.  Be that as it may, none of these affects the validity of the classification under consideration.