HUI SIU YAN, EDWARD AND OTHERS V. OBSCENE ARTICLES TRIBUNAL

Obscene Article Tribunal Appeal

1993, No.OAT 1

HEADNOTE

Offending articles were placed before the Obscene Articles Tribunal for determination. The Tribunal found that the articles were to be returned to Sweden to be published in magazine and that the magazine is intended to be for sale to the general public in Sweden without age limit. 3 Swedes gave evidence as to the sale of those magazines in Sweden. The Tribunal determined most of those articles are either obscene or indecent.

On Appeal

1993, No. OAT 1

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

OBSCENE ARTICLES TRIBUNAL APPEAL

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J U D G M E N T

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1. This is an appeal against the decision of the Obscene Articles Tribunal, (the Tribunal) pursuant to S.30 of the Control of Obscene and Indecent Articles Ordinance Cap. 390.

2. The 4 Appellants were charged for possession of obscene articles for the purpose of publication, contrary to S.21(1)(b). The magistrate referred the articles involved to the Tribunal to determine whether the articles were obscene or indecent under S.29(1).

3. There were altogether 166 articles sent to the Tribunal for examination and the Tribunal found nearly all of the articles were either indecent or obscene.

4. The 4th Appellant is a company carrying on the business of colour separation to be used in printing of publications. The other 3 Appellants are its directors.

5. Slides and photographs were sent by its overseas customer Scan- Mag. A/S for colour separation. After colour separation the colour separation films together with the slides and photographs would be returned to its overseas customer.

6. The magazines to be produced based on the colour separation films would be in foreign languages and would not be for local distribution.

7. The Appellants called 4 witnesses at the hearing of the Tribunal to give evidence as to the role the 4th Appellant involved and the eventual distribution of the finished product from the colour separations in Sweden and other Scandinavian Countries. The Swedes including Mr. Dimbead, General Manager of the Swedish Chamber of Commerce in Hong Kong gave evidence to the effect that the end products from those colour separations would be sold in department stores, bookstalls, gas stations and newspaper stands without any restrictions. There are not less than 22 such magazines in Sweden. Those magazines can be obtained easily by the general public of all ages without restrictions or intervention by the authorities. They are not against the Swedish Penal Law and have a wide circulation amounting to 20% in the volume of the magazine market in Sweden.

8. The Tribunal after hearing the evidence came to the following finding of facts:-

"The Tribunal heard the evidence given by a Swedish lawyer, the general manager of the Swedish Chamber of Commerce in Hong Kong, and a director of Scandinavian Publishing Groups A/S, witnesses called by Defence. From their evidence, the Tribunal is satisfied that the end products, viz., magazines similar to those submitted to the Tribunal and marked as Exhibits p.167 to p.174, printed from some of the articles the subject matters of the charge, are placed on sale at convenient public places and readily available to the Swedish general public of all ages without any intervention from or by the authorities.

From the evidence of the 3rd defendant, the Tribunal is satisfied that the slides, P1 to P30, and other original editorial material, were received from Sweden by the 4th defendant (the limited company), who then by certain process turned the slides into what is known as colour separation films, P31 to P43 etc., and that the colour separation films and all material supplied would have been returned by the 4th defendant to Sweden for the printing of pornographic magazines except for the intervention in this case of the Customs and Excise Department.

The Tribunal is satisfied that as regards section 10(1)(C), the persons or class of persons, or age groups of persons to or amongst whom the articles are intended to be published are the general public in Sweden, without any age limit, either upward or downward."

9. The members of the Tribunal having satisfied themselves with the finding above, went on to state that:

"The Tribunal, therefore, having heard Counsel for prosecution and defence and bearing in mind the guidance set down in S.10(1), where applicable makes the following determination:......"

10. S.10 states:

"S.10(1) In determining whether an article is obscene or indecent or whether any matter publicly displayed is indecent, or in classifying an article, a Tribunal shall have regard to--

(a) standards of morality, decency and propriety that are generally accepted by reasonable members of the community, and in relation thereto may, in the case of an article, have regard to any decision of a censor under section 10 of the Film Censorship Ordinance 1988 in respect of a film within the meaning of section 2(1) of that Ordinance;

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

(c) in the case of an article, the persons or class of persons, or age groups of persons, to or amongst whom the article is, or is intended or is likely to be, published;

(d) in the case of matter publicly displayed, the location where the matter is or is to be publicly displayed and the persons or class of persons, or age groups of persons likely to view such matter; and

(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.

(2) The opinion of an expert as to any of matters to which a Tribunal must or may have regard under subsection (1) may be admitted in any proceedings before a Tribunal either to establish or negative that matter."

11. S.30(1) states:-

"Any party to any proceedings before a Tribunal may appeal to the High Court against a decision of that Tribunal on a point of law by giving notice of appeal in writing setting out the grounds of that appeal to the Registrar within 14 days of that decision."

12. Since S.29(1) states that the Tribunal shall have exclusive jurisdiction to determine whether any article is obscene or indecent, in my judgment, the High Court cannot reverse a decision or determine of the Tribunal because the decision of the Tribunal is a decision of its members two of whom are adjudicators chosen from members of public and hence represent the opinion of the public. My view is fortified by S.31(1)(a) which states:

"31. In the case of any appeal under section 30--

(a) the High Court may confirm the decision of the Tribunal or may order it to re-hear or re- open the proceedings to be determined in accordance with the point of law decided by it."

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

14. In the present case the Tribunal after having made the findings that:

(1) the originals and the colour separations would have been returned to Sweden but for the intervention of the Customs & Excise Department;

(2) magazines with similar articles (subject matters of the Tribunal's decision) are placed on sale at convenient public places and readily available to the Swedish general public of all ages without any intervention from or by the authorities;

(3) the persons or class of persons, or age groups of persons to or amongst whom the articles are intended to be published are the general public in Sweden without any age limit, either upward or downward.

15. It had not given any reasons as to why it came to the conclusion that those articles were obscene or indecent. It did not state what standards of morality (S.10(1)(a)) its members applied bearing in mind that they came to the finding that those articles are intended to be published (S.10(1)(c)) to the general public in Sweden without any age limit.

16. In Gold Star Publications Ltd. v. D.P.P. [1981] 2 All E.R. 257 per Lord Wilberforce at p.259:

"Obscenity, viz. tendency to deprave or corrupt persons likely to read the relevant matter is relative."

17. At the same page he went on,

"In my opinion it has to be accepted that in some cases the magistrates will not be able to form any opinion on this matter. In such cases, since the court has to be satisfied that the articles are obscene (see s.3(3)), it would have to release them., In other cases there might be evidence before them either way: that the articles would not tend to deprave or corrupt likely readers in the country of destination, or that they would. Then they would have to decide on the evidence."

18. At p.260 Lord Wilberforce went on,

"These findings to my mind show both that the Act is workable as regards exports, and that the court properly applied its mind to the probable effect of the articles on likely readers."

19. In the judgment of Lord Roskill at p.265 he said,

"As Lord Wilberforce pointed out in D.P.P. v. Whyte [1972] 3 All E.R. 12 at 17 and again in D.P.P. v. Jordan [1976] 3 All E.R. 775 at 778 is directed to 'relative obscenity', that is, obscenity relative to likely readers or other likely recipients of the article in question. It has thus become important in these cases to determine who are the likely readers or customers, for it is only when that class or those classes have been offending article will 'tend to deprave and corrupt persons' who form a significant part of that class or of those classes."

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

21. In the present case, evidence were given by 3 Swedes as to the standards of acceptance of those articles in their community. In my view this is a material factor which should be given serious consideration when the Tribunal determines the obscenity or otherwise of those articles.

22. There is no information as to how the Tribunal came to its decision, and in view of the evidence presented, it is likely that the Tribunal had erred in its findings by failing to give sufficient consideration to the standard of acceptance of those articles in the Swedish Community, because they could not have been deemed obscene or indecent in Sweden if they can be obtained easily in public there.

23. For reasons above I direct the Tribunal to re-open the proceedings and determine again whether the articles are obscene or indecent according to the guidelines laid down in S.10(1) by taking into consideration the moral standards of the place where they are intended to be published i.e. Sweden.

24. Mr. Kwok for the Appellants invited me to reverse the finding of the Tribunal and substitute my own finding. As I have already set out my reasons earlier as to why the High Court cannot as a matter of law determine whether an article is obscene or indecent, his application for such order is refused.

25. Costs reserved.