ATTORNEY GENERAL v. CHAN CHUNG HO AND OTHERS

HEAD NOTE

                An 'article' within the meaning of S. 2(1) of the Objectionable Publications Ordinance is not restricted to printed matter, pictures, sound or cinematic material, but includes items such as statues and models made to be looked at.

 

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Magistracy Appeal No. 561 of 1985

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BETWEEN

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JUDGMENT

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1. This is an appeal, by the Attorney General, by way of case stated, against the decision of a magistrate dismissing charges of publication of objectionable articles for gain contrary to sections 4(1)(a) and 4(2) of the Objectionable Publications Ordinance Cap. 150, and possession of objectionable articles for publication for gain contrary to sections 4(1)(b) and 4(2) of the same ordinance. There were a very large number of articles the subject matter of the charges but they could be classified as sex stimulators, and items such as lipsticks made to resemble penises, and purses to resemble vaginas. The learned magistrate held that such items, while tasteless and extremely offensive, did not fall within the definition of 'articles' in section 2(1) of the ordinance, as it did not cover such items as 'sex aids or sexual novelties'.

2. At common law, the publication of obscene matter was an indictable misdeamour, and it was immaterial whether it was writing, print, picture of effigy, or indeed orally as in an obscene play. Of course in the law of defamation, publication can be by way of a statue or effigy.

3. The ordinary meaning of 'publish' is simply 'to make public', Boucicault v. Chatterton (1876) 5 Ch. D at 281.

4. 'Article' as defined by section 2(1) of the ordinance as meaning

5. The Crown case is that 'any thing' means 'every thing' and that every thing made to be 'looked at' comes within the definition. Crown counsel conceded that a distinction could be drawn between articles primarily functional, and those that were primarily to be looked ate

6. The adding of the words 'or both' after 'to be read or looked at' is a clear indication that 'looked at' is not to be considered as having the same meaning as 'to be read'. It is conceded, correctly, that the definition covers pictures and photographs. The definition appears to cast a wide net. The objects in this case appear to fall within 'any thing consisting of matter to be ..... looked at ..... ' .

7. However it is proper to look at the other sections of the ordinance to see if they give guidance. The offences relate to publishing articles or possessing articles for publication, so it appears that an item would not be an 'article', for the purpose of the offences, unless it could be published.

8. Section 2(2) provides that a person publishes an article if he

Items which are three dimensional, such as statues or models could be dealt with in any of the ways set out in that subsection, except that they could not be played or projected. Such items could be published within the meaning of the ordinance.

9. It seems to me that on the clear words of the ordinance, such items are 'articles' and fall within the a bit of the ordinance. On the case as stated I am not concerned with whether or not they are objectionable.

10. Having, concluded that such items are 'articles', on the proper construction of the wording of the ordinance, I might observe that it would be strange were it otherwise. It would be strange if a photograph of an obscene statue, for example, were within the ordinance, but the statue itself were not. Furthermore the distinction between representations that are flat, or two dimensional, such as printing, photographs and paintings, and three dimensional objects such as statues, is difficult and is not logical in the context of the ordinance if one considers braille, and low relief sculptures to be read by touch by blind persons. Is such a representation a picture or a sculpture, or both? Counsel for the respondent did not dispute that a blind person 'reads' by touch and that his reading by touch would be 'reading' for the purposes of the ordinance.

11. My attention was drawn to The Attorney General v. I.P.P. Industrial Co. Ltd., Criminal Appeal 397 of 1984, wherein the Court of Appeal held that synthetic penises were 'other things' for the purposes of section 32(1)(f) of the Post Office Ordinance Cap. 98, which refers to 'any obscene, immoral, indecent, offensive or libellous writing, picture or other thing'. That case is no direct help in construing the Objectionable Publications Ordinance, but is some indication of the legislature's view of such objects.

I answer the first question, no. I answer each part of the second question, yes, but emphasise the use of the word 'may' in the questions posed.

12. The Crown do not seek to have the case remitted to the magistrate, with the dismissal set aside, so that he can consider whether the particular items are articles 'to be looked at', and if so, whether they are objectionable. The Crown take the view that the questions of law in this case had not been previously canvassed, and that accordingly the dismissals could properly be allowed to stand. I agree to that course. I understand the Crown will be seeking forfeiture orders from the magistrate.