NEXT MAGAZINE PUBLISHING LIMITED v. COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING AUTHORITY

OATA No 1 of 1994

__________________

H E A D N O T E

__________________

Facts

Appellant was publisher/commissioner of a weekly magazine - Obscene Articles Tribunal made interim classifications on an article appearing in the magazine - Notification of the classifications published in newspapers - TELA letter to appellant received a few days later - time to apply for a review under s.15 of the Ordinance expired - appellant made request to Tribunal for reconsideration under s.17 - Tribunal turned down request holding that s.17 was designed for cases where more than 3 years had lapsed after a classification and there was a change of standards of morality etc - appellant appealed

Held

Tribunal was wrong in its interpretation of s. 17 - sections 15 (1) and 17 (1) provide different ways for an interested party to challenge Tribunal's classification

Section 15 (1) gives a party the right to ask for a review and Tribunal is under an obligation to conduct a full hearing in public - to invoke this procedure, the party must apply within 5 days of the classification

Section 17 (1) allows a party to request Tribunal to reconsider its classification but Tribunal has a discretion and may refuse to reconsider it - there is strictly speaking no time limit for s.17 (1)

In considering whether to accede to a request for reconsideration, Tribunal should have regard to all circumstances of the case including the reasons for making such a request, any delay and the reasons therefor, whether there are any fresh matters for consideration, whether there are any merits in challenging the classification and whether there is any change in standards of morality etc. -Section 17 (2) is only one of the factors for consideration

Appeal allowed and case remitted to Tribunal for further consideration

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

OBSCENE ARTICLES TRIBUNAL APPEAL NO.1 OF 1994

(ON APPEAL FROM OBSCENE ARTICLES TRIBUNAL
CASE NOS.OAT/CM/285 AND OAT/CM/286 OF 1994)

____________________

D E C I S I O N

____________________

1. This is an appeal on a point of law against the determination of the Obscene Articles Tribunal in two cases relating to the same appellant which were heard together. At the end of the hearing, I allowed the appeal and gave brief reasons for my decision. I now reduce them into writing.

2. The appellant was the commissioner of the design, production or publication of the weekly magazine called the Next Magazine. In one of its issue, No.216, there was published a front cover and a feature article at pp.60-64, 65 and 68 to 70 with a Chinese title which said in effect : "beautiful women mishandled by unscrupulous doctors". The particular issue was placed before me. I noticed that the front cover and the article carried certain photographs of various parts of the human body which were apparently the subject matter of a complaint. On or about 25th May 1994, upon the application of the Television and Entertainment Licensing Authority (TELA), an interim classification in respect of the front cover and another in respect of the article took place. They were classified as indecent.

3. On 2nd June 1994, the Registrar of the Supreme Court, pursuant to the provisions of the Control of Obscene and Indecent Articles Ordinance, Cap.390, gave notice of the interim classifications in the newspapers. On the same day, TELA informed the appellant by letter of the result of these classifications. That letter was apparently received by the appellant only on 7th June 1994. On 10th June 1994, the appellant through its solicitors filed two applications pursuant to s.17 of the Ordinance requesting for a reconsideration by the Tribunal of the classifications on both the front cover as well as the article.

4. On 20th July 1994, these applications were heard together. At the hearing before the Tribunal, it was pointed out to counsel that the appellant could have relied on s.15 of the Ordinance but was then out of time and that

s. 17 was not applicable in the present case. Counsel for the appellant explained that the failure to rely on s.15 was because, first, there was a misinterpretation of the law; second, there was an oversight in allowing the period for an application for review to lapse and, third, the appellant had only received the letter from TELA on 7th June 1994 and that it had been mislaid in the office. Having heard submissions from the appellant and the respondent, the Tribunal refused to reconsider the classifications. Hence the appellant appealed.

5. The relevant parts of the decision of the Tribunal were as follows :

"It is not disputed that this letter from TELA (2nd June 1994) advising of the result of interim classifications was gratuitous. TELA had no statutory obligation to inform of any result of interim classifications.

It is clear that the present applicant had failed to avail itself of s.15 by its own negligence and/or misinterpretation of the law.

The Tribunal takes the view that s.17 ('reconsideration' - not 'review') was designed for cases where more than 3 years have lapsed after the classification of an article, the Tribunal of its own motion, or at the request of any person who submitted an article or of any person who would have been entitled to submit it under s.13, decides to reconsider the classification of the article because of the change of standards of morality, decency and propriety, which may have taken place since the article was last classified.

Section 17 was not designed to give an applicant another bite of the apple when he by his own default, missed the first."

6. This decision and the reasoning behind it were the subject-matter of complaint by the appellant in the present appeal. Counsel submitted that the Tribunal was wrong in law in coming to that view and that it had, in refusing to reconsider the classifications, taken into consideration irrelevant matters and/or the wrong facts. He argued that under s.17, any person who submitted the article for classification and the Tribunal and any person who would have been entitled to submit the article for classification under s.13 was entitled to apply to the Tribunal for reconsideration at a full hearing in public. Counsel submitted that s.15 conferred upon those who would have been entitled to submit the article under s.13 the right to a full hearing of the Tribunal. As to s.17, it was argued that the Tribunal had power to reconsider a classification upon its own motion or at the request of an interested person and the discretion to refuse such a request. It was submitted that s.17(2) on which the Tribunal relied in this case was intended to cover a situation where there was already a previous classification within 3 years prior to the s.13 submission. Since there was no such classification within 3 years prior to the classification made on 24th May 1994, that section did not apply and that the Tribunal was wrong to exercise its discretion to refuse such a request for consideration. It was pointed out that s.17 did give a second bite of the apple to anyone who would have been entitled to submit an article for classification under s.13.

7. Counsel further argued that s.15 of the Ordinance only gave 5 days for a review. If s.17 was to be interpreted in the way as interpreted by the Tribunal, then a person would have no recourse after the 5 day period but had to wait for 3 years before they could apply for the request and even then they would have to show that there was a change of standards of morality, decency and propriety since the last classification. That would be unfair to a publisher because he would have to face the serious consequences of a criminal charge and he would have no defence to such a charge whether he knew or not that the article in question was obscene and/or indecent.

8. On the other hand, counsel for the respondent submitted that s.17 could not be read as giving an additional right to a person to apply for reconsideration within the 5 days specified under s.15 which would be a blatant abuse of process. That section, he argued, gave the Tribunal a discretion whether or not to accept an application for reconsideration which was fundamentally different from a review. He submitted that when s.17 was invoked, a private hearing rather than a full hearing should take place resulting in a further interim classification. Under s.17(3), Part III of the Ordinance applied to any motion or request for reconsideration as if such motion or request were a requirement for a full hearing under s.15. It was argued that this was enacted so as to provide the Attorney General with a statutory right of audience under s.15.

Counsel said that as a result of this, the entire procedure for an interim classification applied to the situation of a reconsideration. He argued that since the standard of morality varied from place to place, culture to culture and with reference to the different classes of members of the community, the Tribunal had a discretion within 3 years of a final classification whether or not to accept an application under s.17(2). After the initial 3 year period, the legislation left open as to whether the Tribunal should retain such discretion. Counsel submitted that in the exercise of a discretion, the Tribunal was entitled to have reference to all the relevant circumstances which included the reason for which s.17 was invoked and the reason why the statutory right under s.15 was not. He also submitted that in applying s.17 (1), the Tribunal was entitled to take into consideration the approach in sub-section 2.

9. The Tribunal is conferred with the exclusive jurisdiction under s.8 of the Ordinance to make a determination as to whether a certain article or matter is obscene or indecent and whether the defence of public good under s.28 has been made out and to make a classification on the article according to the provisions of s.8(2). Part III of the Ordinance sets out the procedures to be adopted by the Tribunal with regard to consideration, review and reclassification. The present appeal involves the interpretation of Part III. In my view, the effect of Part III is as follows.

10. Under s.13 of the Ordinance, two categories of persons have the right to submit an article to the Registrar of the Supreme Court for classification by the Tribunal. The first category includes the author, publisher, distributor or owner of the copyright of any article. The second category is the Attorney General and any public officer authorised by the Chief Secretary. The first category of persons have obviously an interest to submit the article for classification while the second category of persons have a public duty to perform. The submission for classification must be made in the prescribed form. That is the first step in the classification procedure.

11. Upon the submission for classification under s.13, the Tribunal has a statutory obligation under s.14 to deal with such submission. It has basically two options :

(1) It may consider the submission for classification in private and without the attendance of the applicant or any person and make an interim classification within 5 days of the submission (s.14(1)(a)). If it needs more time, it may extend the time for its consideration provided that such extension of time cannot be more than another 5 days and that it shall give notice of the extension to the applicant (s.14(2)), and

(2) If the Tribunal has not made an interim assessment either within the first 5 days of that submission or within the extended time of another 5 days, it may consider the application as if it were a requirement for a full hearing under s.15 of the Ordinance.

12. That is the second step in the procedure. It is important to note that under s.19 of the Ordinance, the Registrar has a duty to give notice of any interim classification (or any classification made at a full hearing or final classification) in an English newspaper and a Chinese newspaper published daily and circulating generally in Hong Kong. There is however nothing in the Ordinance which requires the Registrar to give notice of the result to the applicant.

13. Where the Tribunal has made an interim classification, the person who has submitted the article for classification or any person who would have been entitled to make a similar submission may require the Tribunal to review the interim classification at a full hearing under s. 15(1). There are two conditions for such procedure. First, that person must do so within 5 days of the interim classification taking effect. Second, he must do so by notice in writing in the prescribed form to the Registrar. That is to say, provided that he complies with these 2 conditions, the person who submitted the article for classification under s.13 and is aggrieved by the interim classification or any person who may be affected by such classification (because he is a person who would have been entitled to make a submission under s.13) has the right to require a full hearing before the Tribunal and ask the Tribunal to review that interim classification. Where, however, the Tribunal has failed to make an interim assessment within the first 5 days of that submission and the extended period of another 5 days, the Tribunal must consider the application for classification at a full hearing under s. 15 of the Ordinance. In other words, an aggrieved applicant has a right to apply for a review of the classification at a full hearing if he acts within time and the Tribunal is under an obligation to hold a full hearing upon an application for review. The Tribunal is also under a similar obligation if it has not made a classification within the statutory period. That is the third step in the procedure.

14. The hearing for the purpose of reviewing the interim classification (or a consideration of the submission for classification in the case where the Tribunal has failed to make any interim classification within the statutory or extended period) shall be conducted in public. At the public hearing, the person who made the submission under s.13, any person who would have been entitled to make such a submission and the Attorney General or their representatives may appear and be heard. That is the final step in the procedure.

15. Apart from the above normal procedures, there is s.17 of the Ordinance which provides as follows :

"(1) Subject to sub-section (2), a tribunal may of its own motion, or at the request of any person who submitted an article or of any person who would have been entitled to submit it under s.13, reconsider the classification of the article and may alter or confirm that classification.

(2) A tribunal may refuse a request to consider a classification of any article submitted under s.13 if that article was classified within a period of 3 years prior to that submission.

(3) This part (Part III) shall apply to any motion or request to reconsider a classification as if such motion or request were a requirement for a full hearing under s.15."

16. In my view, the effect of s.17 is this. It confers upon the Tribunal another power to reconsider its classification on its own motion or at the request of the person who submitted the article for classification in the first place or any person who would have been entitled to make a submission for classification under s.13. It allows that person to make a request to the Tribunal for its reconsideration. The Tribunal has a discretion in dealing with such a request and may, of course, refuse such request to reconsider the classification. However, it does seem to me that the right conferred upon that person to seek a reconsideration under s.17 (1) must be in addition to his right to apply under s.15 (1) for a review of the interim classification made by the Tribunal. This is because there are clearly many differences between the s.15 (1) and the s.17 (1) procedures. First, under s.15 (1), the applicant has a right to require a full hearing while under s.17 (1), that person can only make the request and it is up to the Tribunal to decide whether or not to accede to such request to reconsider the classification. Second, under s.15 (1), there is a time limit of 5 days from the interim classification taking effect while under s.17 (1), there is strictly speaking no such time limit. Third, the procedure under s.15 (1) was for a review of an interim classification only while under s.17 (1), there is no such restriction and the reconsideration may relate to an interim classification under s.14 or a classification which is deemed to be so under s.15(5). Fourth, a review under s.15 (1) is the first full hearing under the procedure while a hearing held under s. 17 (1) at the request of any person for reconsideration may be the second full hearing. This is because there is nothing to stop a person who is aggrieved by an interim classification under s.14 to require a full hearing of the Tribunal to review that interim classification, and after he has failed in that review, to request the Tribunal to reconsider the classification under s.17 (1). There may be different reasons to request for a reconsideration and the Tribunal has a discretion either to grant such a request or to refuse it.

17. Further, in considering whether to accede to the request (not the reconsideration itself), the Tribunal should have regard to all the circumstances of the case including the reasons for making such a request, whether there is any reason in not taking advantage of the review procedure under s. 15 (1), whether there is a delay in doing so and what are the reasons for such a delay, whether there are any fresh matters for consideration, whether there are good grounds or merits in challenging the classification, and whether there is any change of circumstances, including a change of standards of morality, decency, propriety or social conditions. I think section 17(2) provides for only one of the factors to be considered by the Tribunal in dealing with a request for reconsideration. The object of this subsection is to prevent repeated and unmeritorious submissions for classification. It clearly envisages two submissions and two classifications. It contemplates a situation where a person makes a submission for classification within 3 years after a previous classification made upon a previous submission. If his second submission has been disposed of by a second classification, s.17(2) provides that the Tribunal has a discretion to refuse a request for reconsideration. This is because there is no point in having a reconsideration since there were already 2 submissions and 2 classifications within the last 3 years unless there is a change of circumstances such as a change in the standards of morality, decency, propriety or social conditions.

18. That is not the situation in the present case. There was only one submission by TELA and one classification under s.14 on 24th May 1994. I think counsel for the appellant was correct in saying that if one adopts the interpretation on s.17 as put upon it by the Tribunal, one would be left with the situation that if no application for review is made within the 5 day limit for one reason or another, then one would have to either submit the article for classification again under s.13 or to wait for 3 years to apply for reconsideration under s.17 (1) and to hope for a change of standards of morality, decency and propriety. That clearly cannot be the effect of s.17. One must also bear in mind that s.17 applies to any person would have been entitled to make a submission under s. 13, that is, a person who was not the one who submitted the article for classification in the first place but is nonetheless an interested party. He may or may not see the notification of the classification in the newspapers or receive any gratuitous notification from the Registrar before the expiration of the 5 day period. The interpretation of the Tribunal on s. 17 would be very harsh on him.

19. In my view, s.17 (1) provides for an alternative to the s.15 (1) procedure. If a person takes advantage of s.15 (1), that is, if he has acted promptly within the 5 days after classification, he has the right to require a review at a full hearing. If, on the other hand, he, for whatever reason or even motive, has failed to avail himself of that right, he can still make a request, a request only, for reconsideration under s.17 (1). However, in that case, he has to convince the Tribunal that there are good reasons to make such request and there are merits in challenging the classification. To put it bluntly, in my view, s.17 (1) does permit a "second bite of the apple".

20. In the circumstances, with respect to the Tribunal, I am of the opinion that the Tribunal has erred in its interpretation of s.17 (1) of the Ordinance. The appellant has a right to make such a request and the Tribunal has a duty to deal with it. It was wrong not to entertain the request for reconsideration for the reason given by the Tribunal. I would therefore allow the appeal. The matter shall be remitted to the Tribunal for further consideration.