MONG HON MING v. ANTHONY YUEN

HCAL 137/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 137 OF 2004

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J U D G M E N T

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Introduction

1. This is an application for judicial review.  The applicant is facing prosecution for the offence of publishing an obscene article, contrary to s.21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap.390 (‘the Ordinance’).  In August 2004, the applicant (and his co-accused) applied to the magistrate before whom he was to be tried for a permanent stay of proceedings.  He did so on the basis that a fair trial was not possible and/or, even if possible, that the prosecution process had been so gravely manipulated that it would be an affront to the court’s sense of justice and propriety to allow the prosecution to continue.  In a ruling given on 24 August 2004, the magistrate dismissed the application.  When requested to review his decision, he confirmed it.  It is in respect of these two decisions that the application for judicial review is made.

2. Mr Dykes SC, leading counsel for the applicant, has advanced two grounds, each essentially integral to the other, as to why the magistrate was wrong in law not to grant a stay of proceedings and why this court should now do so.  The two grounds may be summarised as follows :

(a)      That the magistrate was wrong in law not to hold that there had been a manipulation of process in the applicant’s prosecution of such gravity that a fair trial was impossible or, if possible, that the manipulation had so offended the integrity of the judicial process that it would be an abuse to allow the prosecution to continue.

(b)     That the magistrate was also wrong in law not to hold that the nature and extent of the prejudicial publicity generated before the institution of prosecution proceedings had – in all the circumstances – rendered a fair trial impossible.

Background

3. On 30 October 2002, an article was published in a magazine called Eastweek.  At the time of publication, the applicant was the Chief Editor of the magazine.

4. The article bore the heading (in translation) : “Tragedy in entertainment business – nude photo of abused alphabet actress exposed.”  The photograph to which the heading referred depicted a woman who was naked from the waist up, only her nipples and eyes blurred by photographic process.  Her head was bowed.  Although the woman was not named, the article said that she was a well-known actress.  It was the thrust of the article that the actress had somehow offended criminal elements in the entertainment industry who had subjected her to the humiliation of being photographed in this way.  The article went to some lengths to emphasise the authenticity of the photographic evidence.  It was said that it had been taken against the actress’s will and in abusive circumstances.  The article purported to be a morality piece, a warning to aspiring actresses to beware the darker side of the industry.

5. The public reaction to the article was hostile.  The article was not viewed as a morality piece.  It was seen instead as offending common standards of decency and further humiliating the woman who was the unwilling subject of the photograph.  High officials in the Administration condemned it as did prominent members of the entertainment industry.  The Chief Executive, so it was reported, expressed his ‘extreme indignation’.

6. To illustrate the level of condemnation, on 2 November 2002, just three days after the publication, a journal called WiseNews described the public reaction in the following terms :

“… showbusiness organisations, politicians and unions condemned the magazine.  ‘Is this what Hong Kong has come to?  Just for the sake of a few extra cents?’  asked Federation of Hong Kong Film Workers chairman, Ng See-yuen, at a press conference yesterday.  ‘They did it just because that will earn them a little more money.  The public, and everyone who has a conscience, should unite in condemning this act.’”

7. Over the following days other journals and newspapers reported similar expressions of community condemnation. 

8. On 2 November 2002, reacting to the public outcry, Eastweek published an apology which read :

“We are totally wrong!  We offer our deepest apology to the female victim of this incident as well as all Hong Kong citizens.  We would thoroughly review the incident, punish those who were responsible and account to the public for this as soon as possible.”

9. Of course, the acceptance that the article had caused grave offence to a substantial section of society did not amount to any admission that its publication had breached the criminal law.

10. Not surprisingly, public condemnation of the Eastweek article was accompanied by official investigation.  This investigation was both administrative and criminal.

11. In addition to the police commencing investigations, on the day after publication of the article the Assistant Commissioner for Television and Entertainment Licensing made an application in terms of s.13(2) of the Ordinance requiring the Obscene Articles Tribunal (‘the Tribunal’) to classify the article; that is to determine whether it should be classified as indecent or obscene.

12. It was this action on the part of the Assistant Commissioner that forms the basis for the contention that there was a manipulation of the process leading to the prosecution of the applicant which amounted to an abuse of executive power.

13. Under Part III of the Ordinance, the Tribunal has the jurisdiction to classify an article placed before it.  By that process it assigns the article to a particular class, each class defined by common attributes.  The Tribunal may classify the article as obscene, indecent or neither of these and therefore suitable for publication without restraint.

14. S.13 of the Ordinance, which is in Part III, stipulates who may submit an article for classification.  It reads :

“(1)   The author, printer, manufacturer, publisher, importer, distributor or owner of the copyright of any article or any person who commissions the design, production or publication of any article may, by application in the prescribed form, submit that article to the Registrar for classification by a Tribunal.

(2)   The Secretary for Justice and any public officer authorized in that regard by the Chief Secretary for Administration may, by application in the prescribed form, submit any article to the Registrar for classification by a Tribunal.”

15. S.13(1) therefore permits a broad range of people who either seek to publish an article, or have already published it, to have it classified.

16. Equally s.13(2) permits the Secretary of Justice and authorised public officers, persons not themselves involved in the publication of an article, to seek nevertheless to have it classified.  The circumstances in which the Secretary of Justice and authorised public officers may make such an application are not constrained by the language of the Ordinance.

17. It is not disputed that the Assistant Commissioner for Television and Entertainment Licensing was an authorised public officer for the purposes of s.13(2) of the Ordinance and was therefore permitted in terms of the Ordinance to make his application.

18. It is self-evident, I think, that an application for classification of an article, especially before its publication, must often be dealt with speedily.  It would appear to be for this reason that, when an application is made for classification under s.13, it results in the Tribunal making, in the first instance, what is called an ‘interim classification’.

19. In terms of s.14 of the Ordinance, speed being of the essence, the Tribunal is required to make its interim classification within five days.  The Tribunal sits in private without the attendance of the party who has submitted the article or any other interested party.  The Tribunal is not obliged to give any reasons for its interim classification but, if it classifies any part of the article as obscene or indecent, it must identify that part.  The Tribunal may give guidance to the party who has submitted the article.

20. An interim classification may be challenged, a process to which I shall refer shortly.  If, however, it is not challenged within the time prescribed then it is deemed to be ‘the classification of the Tribunal which made it’ : see s.15(5).

21. At this juncture, it should be said that the classification of articles under Part III of the Ordinance is not the sole function of the Tribunal.  In law, in respect of both civil and criminal proceedings, it is only the Tribunal which has the power to determine an article as obscene or indecent.  In this regard, s.29(1), which is set in Part V of the Ordinance, reads :

“A Tribunal shall have exclusive jurisdiction to determine for the purposes of this Ordinance whether—

(a) any article is obscene or indecent;

(b) any matter that is publicly displayed is indecent; or

(c) the ground of defence under section 28 is proved in respect of the publication of an article or the public display of any matter.”

22. S.28, referred to in s.29(1)(c), reads as follows :

“It shall be a defence to a charge under this Part in respect of the publication of an article or the public display of matter if that publication or display, as the case may be, is found by a Tribunal to have been intended for the public good on the ground that such publication or display was in the interests of science, literature, art or learning, or any other object of general concern.”  [This section refers to Part IV, which focuses on offences, including the offence of publishing an obscene article]

23. It follows that if criminal proceedings are instituted against a person for an alleged contravention of the Ordinance and it is disputed whether an article is obscene or indecent – as it is disputed by the applicant in the present case – that issue does not fall for determination by the criminal court.  It must instead be referred to the Tribunal for determination.  S.29(2) of the Ordinance states :

“… where in any civil or criminal proceedings before a court or magistrate a question arises for the purposes of this Ordinance as to any of the matters mentioned in subsection (1), that court or magistrate shall refer that question to a Tribunal; and the parties to those civil or criminal proceedings and, in the case of proceedings to which a public officer is not a party, the Secretary for Justice or their representatives, may appear and be heard at any hearing of that Tribunal relating to that reference.”

24. Returning to the chronology of this matter, in response to the request made by the Assistant Commissioner for Television and Entertainment Licensing pursuant to s.13(2) of the Ordinance, on 4 November 2002 the Tribunal made an interim classification.  Its interim classification was that the Eastweek article was obscene.

25. This classification was apparently announced to the media by the Secretary for Commerce, Industry and Technology.  In its edition of 5 November 2002, Ta Kung Pao reported what had been said at the press conference :

“[The Secretary] reiterated that Eastweek’s publication of the photo of the naked celebrity is absolutely unacceptable, an affront on public morals, and had aroused the ire of the public.  It should, he continued, be condemned by the public and sanctioned by law.  He also stated that the police department’s Organized Crime and Triad Bureau has already begun investigating the incident and was assessing whether criminal acts had been committed.  If so, they would take action and bring the lawbreakers to justice.”

26. On the same day; that is, on 5 November 2002, WiseNews published an article making reference to what it considered to be the Administration’s ‘high-profile’ handling of the issue :

“[The Secretary for Security] rejected criticism that the government’s high-profile handling of the affair was an attempt to tighten control on local media through the enactment of the subversion law.  ‘It is completely a conspiracy theory,’ she said.  ‘Police have the responsibility to investigate an incident which may have a criminal element.  It has nothing to do with protecting press freedom.’

Secretary for Commerce, Industry and Technology, Henry Tang, said last night the government would proceed with prosecutions if Eastweek did not appeal against the tribunal’s verdict.  ‘If nobody lodges an appeal in the next five days, we will then refer to the Control of Obscene and Indecent Articles Ordinance and make our prosecutions,’ he said.  ‘The government is very concerned about the incident which is unacceptable.  The incident has also caused public outrage.  It demands condemnation and punishment according to the law.”

27. Some five days after the Tribunal had made its interim classification under s.14 of the Ordinance, the publisher of the Eastweek, the New Media Group Limited, instituted proceedings under s.15 of the Ordinance requiring the Tribunal to review its interim classification at a full hearing.

28. S.15 directs that, for a full hearing, the Tribunal shall consist of a magistrate (who shall preside) and four or more adjudicators, not two or more as provided by s.7.

29. It is also to be noted that, in terms of s.15(2)(b), any adjudicator who has sat as a member of the Tribunal in making the interim classification is not competent to sit as a member of the Tribunal at a full hearing.

30. At a full hearing, any person who would have been entitled to submit an article for interim classification under s.13(1) of the Ordinance is entitled to appear and be heard.  Such persons would include the author, printer, publisher and any person who commissions the publication of an article.  The applicant, however, chose not to appear personally and be heard at the full hearing.  Nor did he chose to be represented.

31. The full hearing took place in January 2003.  On 20 February 2003, the Tribunal gave a reasoned judgment confirming its interim classification that the article was obscene.

32. Some two months after this judgment had been given, criminal proceeding were instituted against the applicant for a contravention of s.21(1)(a) of the Ordinance; that is, for publishing an obscene article.  The applicant was one of a number of accused, all of whom, it was alleged, had played a role in the publication of the article.

33. It must be inferred, I think, that the police, who had been investigating the publication and who instituted the proceedings, would have been influenced to some degree by the classification of the Tribunal given after a full hearing.

34. Some four months after the institution of criminal proceedings against him, the applicant sought a permanent stay of those proceedings.  I have in an earlier judgment described one of the applicant’s grounds in the following terms :

“The submission of the article to the tribunal for classification [by the Assistant Commissioner for Television and Entertainment Licensing] prior to the applicant’s prosecution had constituted an illegitimate exercise of power in that it would have been done for the purpose of influencing the result of the prospective criminal proceedings or, if not done for that purpose, had the same result.”  [my emphasis]

35. In respect of the application for a stay, the magistrate made a ruling as to procedure.  The exact nature of the ruling is not relevant.  Suffice to say that the ruling was challenged as being wrong in law.  That challenge came before this court by way of judicial review and (in the judgment to which I have made mention in the preceding paragraph) was granted.

36. In August 2004 – procedural matters having been rectified – the application for a permanent stay was determined on its merits by the magistrate.  In a ruling given on 24 August 2004, he dismissed the application.  When requested to review his decision, the magistrate confirmed it.

37. It is these two decisions dismissing the application for a permanent stay that are the subject of this second application for judicial review.  Orders of certiorari have been sought to bring up and quash the two decisions.  Declarations have also been sought that it would be unlawful not to grant a permanent stay.

Principles governing applications for a permanent stay

38. The magistrate unquestionably had the power in his discretion to stay the proceedings before him, that power resting in the inherent power of a court to prevent an abuse of its own process.

39. The power to stay proceedings may be exercised in two sets of circumstances.  First, where, notwithstanding the range of remedial measures available at trial, a fair trial for the accused is found to be impossible.  Second, where, although a fair trial is possible, there has been an abuse of power by the prosecuting authorities which so offends the court’s sense of justice and propriety that to allow the matter to proceed would so undermine the integrity of the judicial process as to amount to an abuse of that process.  In the present case, the applicant has relied on both grounds.

40. When a stay is sought on the first ground, on the assertion, that is, that a fair trial is not possible, Lord Lane CJ, in A-G Reference (No.1 of 1999) [1992] QB 630, at 644, said :

“… no stay should be imposed unless the defendant shows on the balance of probabilities that … he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court.”

41. In HKSAR v. Lee Ming Tee and Another (2001) 4 HKCFAR 133, at 148H, Ribeiro PJ, in considering the applicable principles, said that it was a power only to be exercised in exceptional cases.  He emphasised that the power to ensure a fair trial is not a power to stop it before it starts.  It is instead a power to mould the procedures of the trial to avoid or minimise prejudice to the accused.  Fairness, he said, is not to be judged in absolute terms but in practical terms.  In this respect, he cited Brennan J in Jago v. District Court of New South Wales (1989) 168 CLR 23, at p.49 :

“If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it.  Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness.”

42. As to the duties of a judge when faced with obstacles going to the fairness of proceedings, Ribeiro PJ again adopted the words of Brennan J in Jago :

“Obstacles in the way of a fair trial are often encountered in administering criminal justice.  Adverse publicity in the reporting of notorious crimes (Murphy v The Queen (1989) 63 ALJR 422; 86 ALR 35), adverse revelations in a public inquiry (Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25), absence of competent representation (McInnis v The Queen (1979) 143 CLR 575; MacPherson v The Queen (1981) 147 CLR 512), or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stated.  Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness.  When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues.  The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.”  (at p.49)

43. Proceedings may still be stayed even though a fair trial is possible.  However, this will only take place on those rare occasions when the circumstances have involved an abuse of power which has so offended the court’s sense of justice and propriety that the entire prosecution is held to be tainted as an abuse of process.  As to the principles that govern such rare cases, in HKSAR v. Lee Ming Tee and the Securities and Futures Commission (Intervener) [2004] 1 HKLRD 513, at 565 (para.182) Sir Anthony Mason NPJ adopted the principles enunciated by Lord Steyn in R. v. Latif [1996] 1 WLR 104 (at 112) :

“In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on the broader considerations of the integrity of the criminal justice system.  The law is settled.  Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42.”

44. Sir Anthony Mason went on to cite with approval the observations of L’Heureux-Dubé J in R. v. O’Connor (1996) 130 DLR (4^th) 235, at 277, that, where a fair trial remained possible, a stay would only be ordered “where irreparable prejudice would be caused to the integrity of the judicial system”.  He then noted that, in the absence of a finding of bad faith, this high standard would rarely, if ever, be satisfied.  Even a finding of bad faith, he said, would not necessarily be conclusive.

45. There is clear authority to the effect that there may be an infinite variety of cases in which it would be proper to order a stay on the basis that not to do so would cause irreparable prejudice to the integrity of the judicial system.  This is subject, however, to the clear reservation that a stay is not to be ordered solely to discipline the investigative or administrative authorities which have played a part in bringing about a prosecution.  In R. v. Horseferry Road Magistrates Court, ex parte Bennett [1994] 1 AC 42, at p.74, Lord Lowry said :

“The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court’s disapproval of official conduct.  Accordingly, if the prosecuting authorities have been guilty of culpable delay but the prospect of a fair trial has not been prejudiced, the court ought not to stay the proceedings merely pour encourager les autres.”

The applicant’s assertions of prejudice

46. On behalf of the applicant, it has been contended that, owing to the history of the investigation and prosecution of this case, a fair trial before the criminal courts is now impossible.  More than that, the manipulation – indeed exploitation – of the investigation and prosecution process has been so grave as to constitute an abuse of power which has undermined the integrity of the judicial process.

47. It is the applicant’s assertion that :

(i) At a time when there was widespread and hostile publicity addressed to all those involved in the publication of the article, the Administration saw fit – for unexplained reasons – to seek an interim classification of the article under Part III of the Ordinance.  There could have been no other purpose (of any materiality) to seek an interim classification other than to strengthen the basis for an anticipated prosecution.

(ii) The interim classification that the article was obscene was made when publicity surrounding the matter was still widespread.  The announcement – based on the interim classification – was to the effect that those responsible for the publication of the article should not only be condemned morally in the public arena but should be criminally sanctioned.

(iii) The fact that the interim classification was sought and made several months before the applicant was charged with publishing an obscene article is not to the point.  What is to the point is that this early manipulation (amounting to exploitation) of the judicial process acted to encourage a prosecution by presenting an apparently firm legal foundation to demonstrate guilt.

(iv) What makes this case different from those in which the media or the Administration merely encourage a possible prosecution by an expression of their own views is the fact that in this case those views have been supported by an interim classification (and later a final classification) of the very body given exclusive jurisdiction to determine whether the article was or was not obscene. 

(v) The Administration’s actions amounted to, or were intended to, inspire a prosecution and, as such, either amounted to, or where analogous to, actions constituting a common law contempt of court.

48. In advancing his submissions, Mr Dykes, for the applicant, placed considerable weight on the observations of Godfrey JA (as he then was) in Pao Wai Louis and Another v. Obscene Articles Tribunal [1995] 1 HKC 51, at 56 and 57.

49. On my reading of the judgment, the central issue was whether a photograph on its own was capable of constituting an ‘article’ under s.10(1) of the Ordinance or whether it had to be considered in the context of the article as a whole.  However, in the course of his judgment, Godfrey JA considered the fact that there had been an interim classification by the Tribunal under Part III of the Ordinance followed by a criminal prosecution, the chronology being the same in the present case.  The judge made the following observations :

“I hope this attempt to classify this photograph as indecent was not aimed at putting before the magistrate something which would pre-empt or prejudge in any way the point at issue in the criminal proceedings. …

It seems to me extraordinary that this procedure of classification [under Part III of the Ordinance] was invoked for a one-off publication of a photograph in a weekly magazine.  The provisions of the Ordinance for submission of articles to the tribunal are intended to cover cases where the article or matter is to be on permanent or semi-permanent display or where the publication is likely to be repeated.  They are not in the least apposite to deal with the sort of situation which arose here. 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.”  [my emphasis]

50. These observations, in my view, were obiter dicta.  But, in looking to basic principles, they must be persuasive, especially when read in the context of another authority relied upon by Mr Dykes, that of Attorney-General v. News Group Newspapers [1984] 1 QB 110.  The factual background to this second case is set out in the headnote which reads :

“The family of a girl, aged eight, alleged that she had been raped by a doctor but, after an investigation by the police, the county prosecuting solicitor, on advice from counsel, decided that there was insufficient evidence to bring a prosecution.  The editor of ‘The Sun’ newspaper authorised the publication in March 1986 of articles whose headlines and contents referred to the child’s rape by the doctor and the editor also arranged for financial help to be provided by the respondent company, the proprietor and publisher of ‘The Sun,’ if the solicitors instructed by the child’s mother brought a private prosecution.  In May, a private prosecution was brought and, subsequently in the Crown Court, the doctor was acquitted of the offence.”

51. In law, context is everything and it does need to be said that in Attorney-General v. News Group Newspapers, the newspaper in question orchestrated a crusade to ensure that the doctor was prosecuted.  To illustrate, in the judgment, Watkins LJ said :

“The headlines to the articles complained of could hardly have been bolder, larger or more prominent. … In the main article on 14 March, it is, at the outset, made clear that ‘The Sun is to pay for a mother to privately prosecute a top doctor accused of raping her eight-year-old daughter.’  There follows an account of a confrontation between the mother and the doctor … in which he is reported as having said of the girl to the mother:

‘She deserved all she got, eight or 18, she knew what it was all about.  There is nothing you can do about it.  Wherever you go I will have been there first.’

In another article in the same edition of the newspaper, there is much more emotive material as the following extracts from it clearly, in my view, demonstrate:

‘The granny of tragic eight-year-old Miss X spoke yesterday of her hatred for the doctor accused of raping the child.  ‘He is a beast and a swine,’ said the 58-year-old woman, who cannot be named.  ‘I am utterly convinced it was he who raped the child …’”

52. In that factual context, the Divisional Court held that there had been a common law contempt committed by News Group Newspapers.  The findings of law leading to that determination are set out in the headnote as follows :

“(1)   that conduct with the specific intention of interfering with the administration of justice constituted contempt of court at common law; that the articles published in the newspaper, the affidavits and the financial support of the girl’s mother in bringing a private prosecution showed that the respondent had the necessary intention to prejudice a fair trial by bringing to the attention of the newspaper’s readers, including potential jurors, damaging matters affecting the doctor which would be inadmissible evidence in criminal proceedings.

(2)   That at common law there could be contempt to interfere with the course of justice even if the conduct did not relate to pending or imminent proceedings; that, although proceedings had not been brought at the time of the publication of the articles, the respondent’s conduct in publishing the articles at the same time as it was encouraging and assisting the mother to bring a private prosecution was sufficient to constitute a contempt at common law; but that, in any event, proceedings were imminent since it was virtually certain that there would be a prosecution following after the publication of the articles.”

The issues to be determined

53. In the present case it is said that the Administration, in seeking an interim classification of the published article, acted in a way which was designed to, or at the very least had the effect of, encouraging a prosecution on the basis that there was now shown to be a firm legal foundation for demonstrating guilt.  It was said that, as such, the Administration interfered with the administration of justice.  But, even if such findings are made, they cannot, of themselves, determine the issues of whether there should be a stay.  As I have said earlier, a stay is not a rod of chastisement to be used to discipline official misconduct : see para.45.

54. The issues to be determined, it seems to me, are more precise :

(i) If there was official misconduct of the kind alleged has it rendered a fair trial impossible for the applicant?

(ii) In addition, or alternatively, if there was official misconduct of the kind alleged, was it of such a nature as to amount to an abuse of process so grave that it would be an affront to the public conscience to allow the criminal proceedings to continue?

Was there an intent to interfere with the administration of justice?

55. The Assistant Commissioner for Television and Entertainment Licensing has not submitted an affidavit or affirmation as to his reasons for seeking an interim classification under Part III of the Ordinance.

56. However, it must be recognised that the Assistant Commissioner was authorised under the Ordinance to seek an interim classification.  His statutory authority was not restrained to any prescribed time or circumstance.

57. It must also be recognised that his application was not out of the ordinary, the power to seek interim classifications having been used on a number of occasions.

58. In my view, it must further be recognised that, even in respect of one-off publications, there may be occasions when it is in the public interest to obtain interim classifications.  Most often this will arise when there is a perceived danger of further publication of an article, often by way of copy-cat publishing.  An interim classification acts to prevent this, putting those who may be tempted to re-publish on notice that it will be an offence to do so.  In this regard, s.25 of the Ordinance reads :

“Where an article is classified as a Class III article by virtue only of an interim classification, any person who publishes that article, whether or not he knows it has been so classified, commits an offence and is liable to a fine of $1,000,000 and to imprisonment for 3 years.”

59. In Pao Wai Louis and Another v. Obscene Articles Tribunal (cited in paras.48 and 49), Godfrey JA said that it seemed to him to be ‘extraordinary’ that the procedure of seeking an interim classification should be employed for a one-off publication.  With the greatest of respect, I cannot agree with this obiter remark.  In my view, one-off publications, especially when they are (or become) notorious, may well give rise to numerous re-publications through all kinds of networks.  Unless an early warning is given, the initial damage, for example, to the dignity or reputation of a well-known personality, may be multiplied many times.

60. In the present case, the published article was the subject of a media outcry.  It depicted a woman naked from the waist up.  It requires no imagination to anticipate that for a broad spectrum of reasons, mainly venal and exploitive, there would be a temptation to republish.  That being the case, in my judgment, it goes too far, as Mr Dykes would have it, to say that there could only be one reason for seeking the interim classification in this case; namely, to try and influence the bringing of a prosecution and/or its result.  The interim classification in this matter would have had the result of protecting the victim from further exploitation, a legitimate object of the Ordinance.

61. For that reason alone, in my view, the applicant must fail in any submission that the Assistant Commissioner acted in bad faith.  There is simply no evidence of bad faith.

62. I do accept that one of the reasons for seeking an interim classification may have been to discover whether – prima facie at least – there were grounds for proceeding on the basis that the published article offended the Ordinance.  But any interim classification, made by the Tribunal in private without the appearance of affected parties, could not possibly have been conclusive in any criminal proceedings.  Indeed, for reasons which I shall give, I do not see that it would even be relevant.

63. I say that because it is apparent that the Tribunal, when exercising its jurisdiction under Part III of the Ordinance to classify articles, is a different body, possessed of different powers, and subject to different procedures and rules of evidence, from when it is exercising its jurisdiction under Part V of the Ordinance in respect of criminal prosecutions.

64. S.11 of the Ordinance specifically differentiates between the powers of the Tribunal under Part III and Part V of the Ordinance.

65. In making a determination under Part V of the Ordinance, the Tribunal is vested with the powers of a magistrate.  In this regard, s.11(a) stipulates that a Tribunal :

“when exercising its jurisdiction under Part V shall have the powers of a magistrate under the Magistrates Ordinance (Cap 227) and for that purpose references in that Ordinance to a magistrate shall be deemed to include references to a Tribunal …”

66. In contrast when making a determination under Part III of the Ordinance, the Tribunal may determine its own procedures and may, for example, consider evidence that would be inadmissible in criminal proceedings.  In this regard, s.11(b) stipulates that a Tribunal ‘may determine its own procedure’ and in particular may —

“(i)   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;

(ii) by notice in writing signed by the presiding magistrate, require any person to attend before it at any hearing and to give evidence and produce documents;

(iii) administer oaths and affirmations;

(iv) examine on oath, affirmation or otherwise any person attending before it at any hearing and require such person to answer all questions put by or with the consent of that Tribunal;

(v) determine the manner in which the material mentioned in sub-paragraph (i) shall be received; and

(vi) determine the manner in which any article shall be viewed, seen or examined by that Tribunal;”

67. It is instructive to note that, when exercising its jurisdiction under Part III of the Ordinance, in terms of s.17, a Tribunal may of its own motion reconsider the classification of an article and may alter that classification.

68. In Sham Kow-ling v. Obscene Articles Tribunal (1992) 2 HKPLR 670, Deputy Judge Patrick Chan (as he then was) said that the consequence of s.11 was that, under Part V of the Ordinance —

“… the hearing before the Tribunal can be regarded as part of the civil or criminal proceedings from which the reference is made. That being the case, the ordinary rules of practice and procedure pertaining to these proceedings should apply. Needless to say, the rules of natural justice should be observed.”

The judge continued :

“… if the reference is made by a criminal court, as in the present case, I should think that the rules of practice and procedure applicable in criminal proceedings, such as the burden of proof, the order of speeches, the rules of evidence, should be followed at the hearing before the Tribunal.”

69. In summary, it seems clear to me that the Tribunal, when exercising its jurisdiction under Part III of the Ordinance, does so essentially as an administrative Tribunal, entitled to act only within the powers given to it by the Ordinance.  However, when the Tribunal exercises its jurisdiction under Part V of the Ordinance, in respect, for example, of criminal proceedings, it does so as a court of the classic kind, possessing the powers and authority of such a court.

70. In making its interim classification and, when that classification was challenged, in making a classification after a full hearing, the Tribunal was acting as an administrative Tribunal.  In contrast, if the Tribunal is asked to make a determination under Part V of the Ordinance as part of the applicant’s criminal prosecution, it will be acting as a court of the classic kind.

71. The classification process (under Part III) in this case was instituted by the Administration in order to obtain an administrative ruling, albeit one that had consequences in criminal law.  The determinative process (under Part V) in this case, if it occurs, will take place because the police have instituted criminal proceedings and will be part of those criminal proceedings.

72. In the course of his submissions on behalf of the respondent, Mr Zervos said that the classifications of the published article by the Tribunal in November 2002 and February 2003 will be irrelevant to the criminal proceedings.  In the criminal proceedings, if there must be ‘a determination’, it will be entirely unrelated to (and unaffected by) the Tribunal’s earlier ‘classification’ findings.  That, in my view, must be correct.

73. In Pao Wai Louis and Another v. Obscene Articles Tribunal (cited in paras.48 and 49), Godfrey JA based certain of his remarks on the fact that, in terms of s.33(1) of the Ordinance, a document certifying that an article has been classified shall be admissible without further proof ‘in any proceedings’ and shall be conclusive evidence of the facts contained in it.  In my judgment, however, again with the greatest of respect, I do not believe that s.33(1) is to be read as providing that a classification by a Tribunal under Part III of the Ordinance is to be admissible in evidence in criminal proceedings under Part V of the Ordinance.  S.33(1) does not go to the question of admissibility (and thereby relevance).  S.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 s.25 of the Ordinance (referred to in para.58).

74. What must be remembered is that, when the Tribunal made its interim classification, it did so in terms of s.14 of the Ordinance, sitting in private without the attendance of the applicant and without the benefit of submissions from him..  When the Tribunal was required to review its interim classification at a full hearing, the applicant played no part in that process.  He chose not to make submissions himself at the full hearing or to be represented at that hearing.  On that basis, it is difficult to see how the Tribunal’s classifications can in any way influence its determinations under Part V of the Ordinance when it will sit not only with new members but as a court of the classic kind determining, according to the criminal burden of proof, an issue in criminal proceedings.

75. As a court of the classic kind, of course, the Tribunal will be able to order its procedures so as to ensure that the trial of the applicant is fair.  The presiding magistrate, as a professional judicial officer, will be able to give directions designed to counteract any prejudice, even an indirect residual prejudice, which the applicant might otherwise suffer.

76. In all the circumstances, I fail to see how the Assistant Commissioner can be criticised by the courts for seeking an interim classification under Part III of the Ordinance.  But even if I am wrong in that regard, I fail to see how his misconduct (if it be so described) can be said to have the result of bringing about a situation in which it is impossible for the applicant to have a fair criminal trial.

77. Equally, it seems to me, even if the actions of the Assistant Commissioner can be described as misconduct, that misconduct falls far short of an abuse of process so grave that it would be an affront to the public conscience to allow the criminal proceedings against the applicant to continue.

Pre-trial publicity

78. On behalf of the applicant it has also been said that the nature and extent of the publicity generated by the publication of the article makes a fair trial at this time impossible.  That publicity, taken together with the classifications earlier made by the Tribunal, was of such intensity and extent that fair-minded and informed observers would conclude that there was a real possibility that any Tribunal now constituted under Part V of the Ordinance to determine the issue of obscenity in the applicant’s criminal proceedings would be biased.

79. I find nothing in this submission.  I am satisfied that, properly directed, the adjudicators who form any new Tribunal will be able to put aside any prejudice generated by the publicity in late 2002 and early 2003.  In this regard, it must again be remembered that the Tribunal will have a presiding magistrate, a professional judicial officer, who will be able to make appropriate directions as to law and procedure.

80. In HKSAR v. Lee Ming Tee and Another (cited in para.42) Ribeiro PJ commented that —

“In a society where the press is free it is inevitable that the reporting of crime will, in some sections of the media, be lurid and sensationalist, sometimes even at the risk of punishment for contempt.  The more heinous or shocking a particular crime, the more it is likely to be given notoriety and to receive potentially prejudicial reporting.  Jurors will therefore almost certainly have been exposed to some degree to such media coverage, prejudicial to the accused.  Plainly, it is not in the public interest to permit this in itself to abort the prosecution of a person accused of such serious crimes.”  (p.189)

81. Ribeiro PJ said that in some cases adverse publicity may require an adjournment.  In the present case, of course, the extensive pre-trial litigation has effectively resulted in an extensive ‘adjournment’.  The level and extent of the media coverage in late 2002 is today therefore a distant memory, if indeed in many people’s minds it is even that.

82. A permanent stay based on adverse publicity, said Ribeiro PJ, would be very rare.  In most cases, he said —

“… while acknowledging that special care must be taken to counteract the possible effects of prejudicial publicity, the court places its faith in the jury, properly directed, to secure a fair trial for the accused.”  (p.190)

83. As Ribeiro PJ pointed out, the reliance on the integrity of the jury and its ability to try cases fairly, to put aside extraneous prejudice and to follow the directions of the judge, is fundamental to the jury system itself.

84. In my judgment, just as it may be assumed that a jury, properly directed, is able to overcome prejudicial publicity in the great majority of cases, so in the present case – with the publicity in any event being so much a matter of history – I am satisfied that the adjudicators, properly directed by the presiding magistrate, will be able to set aside any prejudice that may otherwise influence them.

85. Nor, in my judgment, is there any ground for suggesting – after such a long passage of time and having regard to the constitution of the Tribunal – that fair-minded and informed observers would conclude that there was any real possibility of the publicity engendered by this case so affecting the Tribunal as to result in it being biased or even having the appearance of bias.

86. In respect of this issue of publicity, I conclude by saying that, although I have dealt with it as a separate issue, I have considered it both separately and as part of the contention that the Tribunal’s classifications under Part III of the Ordinance have rendered a fair trial impossible.  In this regard, I have borne in mind Mr Dykes’ submission outlined as follows in his skeleton argument :

“The prejudicial effect of the publicity is huge.  This is because of the legal basis of the public interim classification.  It is not like other cases where newspapers assert criminality on the strength of conjecture and rumour which can be shown to be just that.  It is not like a case where a long-forgotten previous conviction is dredged up and, by careful judicial exposition, shown to be irrelevant.  This is direct, focused and forceful comment based on the very legal issue which the Tribunal has to determine.

…

It would be ‘unusually strong-minded’ Tribunal which would feel able to go against the ruling of previous Tribunals on this point.  The risk of bias is so great in this situation that it could be regarded as a high probability of bias.”

87. I do not agree that today the prejudicial effect of the publicity generated in late 2002 remains ‘huge’.  Nor do I agree that it would take an exceptional Tribunal to go against earlier administrative classifications.  A new Tribunal, if formed, will consider the published article in a new context entirely; namely, as a required element of a criminal offence.  It will do so under appropriate directions from the presiding magistrate.

Conclusions

88. For the reasons given in the body of this judgment, I am satisfied that the magistrate was not wrong in law in refusing a stay.  This application is therefore dismissed.  I see no reason why costs should not follow the event and there will be an order to that effect.