NEXT MAGAZINE PUBLISHING LTD. v. COMMISSIONER FOR TELEVISION and ENTERTAINMENT LICENSING AUTHORITY

1995, No. 66
(Civil)

H E A D N O T E

Role of expert evidence in the Obscene Articles Tribunal on the question of whether an article is obscene, indecent or neither.

IN THE COURT OF APPEAL

1995, No. 66
(Civil)

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J U D G M E N T

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Bokhary, J.A.:

1. The appellant company is the publisher of a Chinese language periodical known as "Next Magazine".

2. This case concerns an article which appeared at pages 43 and 44 of the May 13, 1994, issue of that magazine.

3. Shortly stated, the article is about a young man and a young woman who had made it their practice to climb on to the roof of Queensway Plaza in Central every Thursday afternoon for the purpose of sexual activities. Such activities may have extended to intercourse or may have stopped short of it. Anyway, the couple's activities used to attract the attention of persons in Admiralty Centre and Lippo Centre which overlook Queensway Plaza. Those persons, being behind curtain walls, could see the couple even though the couple could not see them.

4. Included in the article are six photographs: one showing the roof in question from a distance; and five of the couple fully clothed and with their faces partially blacked out.

5. The article was submitted by the respondent authority to the Obscene Articles Tribunal for an interim classification. And the Tribunal made an interim classification putting the article in Class II, in other words, classifying it as indecent.

6. Thereupon, the appellant sought a review at a full hearing.

7. At that hearing, the appellant contended that the article ought to be put in Class I, in other words, that it ought to be classified as neither obscene nor indecent. The Tribunal rejected that contention, and confirmed its classification of the article as indecent.

8. Dissatisfied with that decision, the appellant appealed against it to the High Court.

9. Under section 30 of the Ordinance which established the Obscene Articles Tribunal, namely the Control of Obscene and Indecent Articles Ordinance, Cap. 390, that Tribunal's decisions may be appealed against to the High Court on - but only on - points of law. All my references to sections will be to ones in that Ordinance.

10. The appeal to the High Court came before Sears J on January 13 this year, and was dismissed by him on the same day: his view being that the Tribunal had not made any error of law.

11. From such dismissal, the appellant now appeals to this Court.

12. Before coming to the substance of the argument before us, I should mention this. Section 2(2)(b) provides that "a thing is indecent if by reason of indecency it is not suitable to be published to a juvenile". And a "juvenile" is defined in section 2(1) to mean "a person under the age of 18 years".

13. The judge in his judgment said this:-

" Evidence was given that for this magazine, which has a circulation of 170,000, 83% of the readers are people between 18 and 45, and therefore, it is said, juveniles would not read it. According to my mathematics, 17% that is about 28,000 juveniles in Hong Kong would read it, which is a substantial amount of people."

14. That assumes that all the readers outside the 18 to 45 age group are below it. I would have thought that quite a few would be above it. Nevertheless, I think it remains a legitimate conclusion that the magazine's readership includes a significant number of juveniles.

15. Leaving that matter now and turning to the substance of the argument before us, it is the appellant's contention that the Tribunal had made an error of law and that the judge had failed to correct it.

16. Subsection 10(1)(a) provides, among other things, that in determining whether an article is indecent, the Tribunal "shall have regard to ... standards of morality, decency and propriety that are generally accepted by reasonable members of the community".

17. And subsection (2) of the same section provides that:-

" 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."

18. The appellant had, at the hearing before the Tribunal, called a psychiatrist whose expertise was accepted by the Tribunal over the respondent authority's challenge. In his proof of evidence, that psychiatrist gave it as his opinion that the article was not indecent by the standards of morality, decency and propriety that are generally accepted by reasonable members of the community. He was not cross-examined on his proof.

19. It is the appellant's contention before us that the Tribunal had failed to have regard to that evidence.

20. In support of that contention, leading counsel for the appellant has, with the considerable skill which always characterizes his arguments, subjected the Tribunal's reasons to linguistic and other analysis. But that exercise seems to me to be stopped dead in its tracks by the fact that the Tribunal has said in terms that they concluded that the article was indecent "notwithstanding the expert witness's opinion". An expert witness's opinion, unlike that of other witnesses, is evidence. So it seems to me that the expert's evidence had been taken into account although it was not accepted. Being obliged to have regard to something does not mean being obliged to accept it.

21. Faced with that difficulty, leading counsel for the appellant, with a view to demonstrating that the Tribunal must in reality have ignored that evidence despite what they said, asks what could justify the Tribunal in coming to the view that the article was indecent even though the only expert evidence before them was that it was not indecent? That question, although rhetorical, deserves an answer. And it seems to me that the answer is quite simply this.

22. There was an element in the article which justified the Tribunal in its view that it was indecent even though a fictional account to the same effect might not have been. Some people may say - and I would not criticize them for saying it - that there was a "peeping Tom" element in the article. For my own part, I prefer to put it like this. 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. Much if not most of the journalism in Hong Kong deserves and commands widespread respect. This kind of journalism, if it is journalism at all, is not that kind.

23. I would dismiss this appeal. But in doing so, I would say this. Leading counsel for the appellant says that what he wishes to vindicate is the principle that the Tribunal should have regard to expert evidence. Since I decide against the appellant, not on the basis that the Tribunal was entitled to disregard the expert evidence, but rather on the basis that they were entitled to come to the conclusion which they did after having regard to it, which they did do, my judgment does indeed uphold the principle which leading counsel for the appellant says that not only his client but publishers generally wish to see vindicated.

24. To that extent, his efforts - for which I thank him - are rewarded. But the appeal itself I would, as I have said, dismiss.

Liu, J.A.:

25. The short point before us is whether the Tribunal had in its deliberation wholly disregarded the admitted evidence of an expert.

26. I agree with my Lord, Bokhary JA, that the appeal must be dismissed.

27. I only wish to add this. Section 10(2) of the Control of Obscene and Indecent Articles Ordinance confers on a tribunal a discretion either to admit or not to admit the opinion of an expert in respect to matters specified in s.10(1). Once an opinion of an expert is admitted in the discretion of a tribunal, it would not be right for the opinion to be totally ignored although the tribunal always retains its residual power to decide what weight should be placed upon it. After all s.10(2) comes under the rubric "Guidance to Tribunal" which could not have been intended to abrogate the usual functions of a tribunal in evaluating evidence.

Nazareth, V.-P.:

28. Only one point, as Mr Ronny Wong for the appellant says, is taken in this case, i.e. the Tribunal did not have regard to Dr Ng's expert evidence. That submission has been founded primarily upon the following passage in the Tribunal's decision:-

"As to the usefulness of expert's opinion, Lord Justice Lawton had said in R v Turner (Terence) (1975)2 WLR 56

'An expert's opinion is admissible to furnish the court with scientific informaiton which is likely to be outside the experience and knowledge of a judge and a jury.

If on proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.

'The article' comprises two pages of simple writing, albeit rich in vernacular terms, accompanied by six colour photographs of a young mixed couple in various degrees of bodily contacts. These are the proven facts that the Tribunal can form their own conclusion whether or not 'the article' is indecent within the meaning of the Control of Obscene and Indecent Articles Ordinance without the assistance of any expert. This function of the Tribunal must not be usurped by the experts. Indeed, section 29(1) proves that, inter alia,

'A Tribunal shall have exclusive jurisiction to determine whether (a) any article is obscene or indecent.....

In this full hearing, the Tribunal have no difficulty in coming to the conclusion, notwithstanding the expert witness' opinion to the contrary, that 'the article' is indecent because it is

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

(b) by reason of indecency, not suitable to be published to a juvenile; and because

(c) the dominant effect of 'the article' as a whole is indecent."

Mr Wong submits that the Tribunal had no regard whatever to the expert opinion. He developed his submissions by skilful semantic analysis of the foregoing passage, emphasising the statement that expert opinion was regarded as unnecessary, the narrow compass accorded to proven facts and that the Tribunal could form their own conclusion upon them, that the Tribunal must not be usurped by experts and that the Tribunal has exclusive jurisdiction.

29. Indeed there might be said to be some superficial indications in that passage and analysed in that way, to point to the Tribunal not having had regard to the expert's opinion. But upon a consideration of the entire decision, particularly in the context of the matters before it, I have no doubt whatever that the Tribunal did have regard to the expert's opinion. Certainly, they referred to the multiple qualifications of the expert, they set out the law requiring them to have regard to the various matters upon which he gave his opinion, and they concluded by saying they had no difficulty in coming to the conclusion they reached, notwithstanding the expert's opinion. Clearly, they did have regard to it.

30. That said and in the light of the rather more fundamental concerns which Mr Wong brought to our attention, I go on to say that clearly the Tribunal was required to have regard to the five matters specified in paras (a)-(e) of s.10(1) which is in the following terms:-

"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 (Cap. 392) 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."

31. There can be no doubt that regard must be had to those matters, though, of course not to the exclusion of others that may be relevant. Likewise sub-s.2 of s.10 provides that:-

"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."

32. That again is quite plain, as it is that the Tribunal has a discretion whether or not to admit such evidence; Mr Wong very properly did not dispute that. However, here as I have already pointed out, the Tribunal did accept Dr Ng as an expert witness, did admit his evidence and in my judgment, did have regard to it. Clearly the only ground relied upon fails. I would also dismiss the appeal.