OBSCENE ARTICLES TRIBUNAL AND ANOTHER v. FREEMAN HOLDINGS LTD.

IN THE COURT OF APPEAL

1993, No. 150
(Civil)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.:

1. The issue that falls for determination in this appeal is whether one in a series of frames in a comic book, whose title translated into English is "Desperado Solicitor", is capable of being an "article" within the meaning of section 2 of the Control of Obscene and Indecent Articles Ordinance, Cap. 390 ("the Ordinance") and thereby subject to classification by the Obscene Articles Tribunal ("the Tribunal").

2. On 18 February 1992 the Commissioner for Television and Entertainment Licensing submitted for interim classification to the Tribunal under section 13(2) of Ordinance a single frame occupying the right hand half portion of page 13 of issue 24 of the comic book. On 20 February the Tribunal, having formed the opinion that the frame was obscene, made an interim classification under section 8 of the Ordinance that it was a Class III article.

3. At the hearing on 31 March 1992 of a review of that decision the legal representative of the respondent publisher of the comic book sought to put the entire issue 14 of the comic book before the Tribunal so that it could properly determine the classification in accordance with section 10 of the Ordinance. This application was refused. The Tribunal, being of the opinion that a single frame contributed an article, considered the frame in isolation and confirmed its classification of 20 February.

4. The respondent applied for and was granted leave by Liu J. on 27 November 1992 to apply for judicial review of the decision of the Tribunal delivered on 31 March.

5. The matter came on for hearing before Mortimer J., as he then was. He ordered by way of certiorari that the decision of the Tribunal be removed into the High Court, and quashed the interim classification dated 20 February 1992.

6. In coming to his conclusion that the Tribunal had erred in its interpretation of the word "article", the judge stated:

"I do not underestimate the difficulty of defining such indefinite language but in order not to do violence to the obvious purpose of s10(1)(b), 'article' as defined in section 2 must mean a thing which is complete in itself having regard to all the circumstances. It would be unwise to define the circumstances which ought to be considered but they will include the way in which the thing complained of is published and sold, the form in which it comes into the possession of ordinary members of the public and its context.

I agree with Mr. Wong [counsel for the respondent] that it would be absurd for one frame of a film, or one illustration - or even part of an illustration - in a medical textbook, or one sentence in a novel or short story to be 'an article' in this legislation. If it were so it would involve a serious curtailment of the freedom of speech. It would not achieve justice in accordance with the Ordinance and would not bear the meaning which the whole context of the Ordinance demands.

The decision whether anything complained of is 'an article' within the meaning of s2 is a question of fact for the Tribunal. In all the circumstances the decision that this 'half-page' was 'an article' was clearly wrong and cannot be supported. In parenthesis I would add for clarity that if the 'half-page' illustration had been published and sold on its own so that the circumstances were ATTORNEY GENERAL different it would have been open to a Tribunal to find that it was 'an article'."

7. In this court Mr. Fitzpatrick for the appellants submitted that a single pictorial frame in a sequence of frames the totality of which comprise a story or an instalment of a story presented in serial form is capable of being an "article" within the meaning of the Ordinance.

"Article" is defined in section 2 of the Ordinance as follows:

"2(1) In this Ordinance, unless the context otherwise requires -

"article" means any thing consisting of or containing material to be read or looked at or both read and looked at, any sound recording, and any film, video-tape, disc or other record of a picture or pictures."

8. In the course of their submissions counsel for both parties referred this court to various sections of the Ordinance. We are of the opinion that it is not necessary to look beyond section 10, which reads:

"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 acceptance any part of it.

(2) The opinion of an expert as to any of the 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."

9. During the course of the development of his submission it became clear that although Mr. Fitzpatrick was not abandoning his contention that a single pictorial frame in a comic book was an "article" for the purpose of the Ordinance, his principal concern was that what Mortimer J said was open to the construction that where the Commissioner took exception to, for example, a discrete article in a newspaper or a journal, it was necessary for the Commissioner to submit the entire newspaper or journal to the Tribunal and for the Tribunal to have regard to its entirety in order to determine whether the article is obscene or indecent or to classify it. This, he contended, would cause considerable administrative inconvenience and delay in the classification by the Tribunal of articles submitted to it.

10. It is plain from the words "shall have regard to" in section 10 that, in coming to a determination, it is mandatory for the Tribunal to consider the matters specified in paragraphs (a) to (e) of subsection (1) of the section.

11. We find it impossible to escape the conclusion that the requirement in paragraph (b) that the Tribunal shall have regard to the dominant effect of an article as a whole can only mean that where the Commissioner forms the view that a single frame in a series of frames in a comic book is objectionable and seeks the determination of the Tribunal, the Tribunal must have regard to the entire sequence of frames that form the complete story or separate instalment in a series of instalments in a story that appears in the comic book. It is the discrete story or instalment in a story of which the frame forms a part that comprises the article. This must be so whether the frame is merely pictorial or whether it is a combination of a pictorial representation and the written word.

12. Moreover, if paragraph (e) were to be read in the light of the interpretation of the word 'article' for which Mr. Fitzpatrick contends, it would mean that the Tribunal would be obliged to have regard to whether a frame has an honest purpose on whether its content is merely camouflage designed to render acceptable any part of the frame. This, in our view, is a wholly distorted interpretation of the paragraph.

13. Indeed, an examination of the whole scheme of the Ordinance serves only to reinforce the conclusion that a single frame in a comic book does not constitute an 'article' for the purpose of the Ordinance.

14. Mr. McCoy for the respondent frankly conceded that in determining the classification of an article in a newspaper, magazine, journal, book or other publication it is not obligatory for the Tribunal to have regard to other discrete articles contained therein. With this we entirely agree. We find it difficult to understand why it was thought that what Mortimer J. said led to any other conclusion. The gist of his reasoning was that "'article' as defined in section 2 must mean a thing which is complete in itself having regard to all the circumstances." This, with respect, is correct. A single frame in a series of frames that are published or are sought to be published at one time is not complete in itself for the purpose of the Ordinance. It may well be that the Tribunal may form the view, as we think is likely to be the case, that a single frame in a comic book which depicts an act of extreme violence is not redeemed by the other frames in the comic book or, where the story of which the offending frame forms part is related in instalments, the frames in the other instalment or instalments.

15. For the reasons we have given the appeal was dismissed.