KAILEY ENTERPRISES LIMITED v. OBSCENE ARTICLES TRIBUNAL

OAT Appeal No. 5/95

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The applicant owns a bronze statue called "New Man". It was sculpted by the late Dame Elizabeth Frink. It is accepted on all sides to be a work of art. The applicant imported the statue into Hong Kong, and has displayed it in the lobby of a building in Central. It depicts a male nude, standing, with the hands clasped behind the back. It is a little larger than life-size. The representation of the male genitalia is clearly visible.

2. On 15 February 1995, Mr Chan Tak Wah of the Television and Entertainment Licensing Authority visited the applicant's premises to see the statue. As a result of this, the applicant submitted a photograph of the statue to the Obscene Articles for an interim classification under section 14 of Chapter 390. The Tribunal classified it as "a Class II Article (indecent)". The applicant then applied, under section 15, for the Tribunal to review this classification at a full hearing.

3. The full hearing was held on 1 June 1995. Although the photograph of the statue was considered at the interim classification, the full hearing proceeded on the basis of consideration of the statue itself. The Presiding Magistrate said - "OAT was asked to classify a huge bronze sculpture and the photograph of the bronze sculpture submitted to the Tribunal was just representative of the sculpture for purpose of classification." The Tribunal confirmed that the sculpture was "a Class II article (indecent)", although it appears that the members of the Tribunal did not themselves see the statue.

4. At the hearing of the appeal, I invited counsel to argue in limine only the point as to whether or not the statue was an "article" in terms of the Ordinance, because if the statue was not an "article", the Tribunal had no jurisdiction to classify it, and the other aspects of the appeal would fall away.

5. The jurisdiction of the Tribunal is set out in section 8. For the purposes of classification, it is quite clear that the Tribunal's jurisdiction is limited to an "article".

6. Section 2(1) of the Ordinance defines "article" as meaning -

"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".

7. It is, to my mind, very difficult to believe that the law-maker had in mind a statue as a "thing consisting of . . . material to be . . . looked at . . ." A statue is a thing to be looked at, but it is not a thing consisting of material to be looked at. The material of which the statue consists is bronze, but this is not what is to be looked at. The statue itself is the thing to be looked at, not the material of which it consists. I do not believe that, even by stretching the use of ordinary English words to breaking point, it is possible to fit a statue within the definition. Nevertheless, it is necessary to look at the Ordinance as a whole to see if this could possibly be the result that the law-maker contemplated.

8. I will set out various provisions of the Ordinance. The italics are mine for the sake of emphasis. I will comment on the provisions as far as they concern the issue before me.

9. Section 2(2) says -

"For the purposes of this Ordinance -

(a)....

(b) a thing is indecent if by reason of indecency it is not suitable to be published to a juvenile."

10. As one might expect, this provision, and others, make it clear that the concern of the law-maker is the control of the publication of obscene and indecent articles. This concern appears time and time again throughout the Ordinance. One does not, in ordinary speech, talk of a sculpture being published. One would speak, as section 23 does, about displaying a sculpture. No one, I think, would, after seeing the statue at the applicant's premises, say that the applicant had published the statue to them. This being the case, one must attempt to ascertain if the Ordinance has used the concept of publication is some unusual sense.

11. Section 2(4) provides that -

"For the purposes of this Ordinance, a person publishes an article if he . . . -

(a) distributes, circulates, sells, hires, gives or lends the article to the public or a section of the public;

(b) in the case of an article -

(i) consisting of or containing material to be looked at; or

(ii) that is a sound recording or a film, video-tape, disc or other record of a picture or pictures,

shows, plays or projects that article to or for the public or a section of the public."

12. It is, of course, possible to speak of a sculpture being shown in some circumstances. A proud owner of a piece might take me, after dinner, to his collection of art to show me a special sculpture, but if the owner places his sculpture in a public place, and goes away, one would not say that he then shows it to the public; he is then displaying it. In any case, the statute uses the word "shows" in the same breath as "plays" and "projects", and one should place it in the same category. The provisions of section 24, which speak of a warning notice on an article saying that it contains material that may offend and it may not be shown to a juvenile, confirm this view. It hardly makes any sense to put a notice on a statue saying that it contains material that may offend and it may not be shown to a juvenile. Section 2(4), under subsection (a), is dealing with the distribution of objects like books or magazines, where the individual has his own copy, and, under (b), with things like films or videos, where the individual does not have his own copy, but is shown or hears the thing in the company of others. I do not think this provision is intended to enlarge the meaning of publishing to include the displaying of something like a statue; especially not, if other provisions of the Ordinance reveal, as I think they do, that the law-giver did not have an object like a statue in mind when regulating the publication of articles.

13. Section 8(2)(c) allows the Tribunal, when classifying an article as a Class II article, "to impose conditions relating to the publication of that article.".

14. It would, in my view, be an abuse of the language for a Tribunal, when classifying a statue as a Class II article, to say - "This statue may not be published in a public place."

15. Under section 10, the Tribunal is required to have regard to certain factors when "determining whether an article is obscene or indecent or whether any matter publicly displayed is indecent, or in classifying an article". Paragraphs (c) and (d) say -

"(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;"

16. This provision makes a clear distinction between publishing an article to people and displaying matter at a location. The latter is apposite to displaying a statue; the former is not.

17. Section 13(1) provides -

"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 . . . submit that article . . . for classification . . ."

18. There are no words here that are ordinarily appropriate to fit a situation of the creator or owner of a statue submitting it for classification, unless, as here, he happened also to be the importer.

19. Under section 14, the Tribunal is required, when an article is submitted to it for an interim classification, to "consider it in private".

20. How, in the ordinary course, does the Tribunal consider in private a large statue in a place to which a section of the public have legitimate access, and from which there is no power to bar them?

21. Section 18 requires the printer, manufacturer, publisher, distributor and importer of any article which has been classified as Class II to give notice of the classification to any person to whom he "publishes more than 2 copies."

22. Could it be that the law-maker contemplated a person publishing more than two copies of this statue? Clearly not. What the statute is thinking of is something that is normally published in quantity, and which is normally reproduced by copying.

23. Section 20 requires the Registrar to keep and maintain a repository for the keeping of articles submitted for classification under section 13. Subsection (2) says -

"Except with the consent of a Tribunal all articles submitted for classification under section 13 shall be kept in the repository for a period of 5 years from the date on which it is classified . . ."

24. This is a very clear indication that the law-maker did not have sculptures in mind as articles. This provision contemplates an archive in which copies of articles submitted would be kept. Surely, no one in his right mind would think that a statue should, in the normal course, regardless of the classification, be kept in a repository for 5 years. I cannot believe that the law-maker intended this. It would amount to, in the case of individual works of art such as statues, to a draconian confiscation provision.

25. Section 21 makes it an offence to publish, possess for publication or import for publication any obscene article. It is a defence that the article was possessed or imported "for the purpose of submitting it, a copy thereof or a print therefrom to the Registrar under section 13". Section 26 creates an offence similar to that under section 21 in relation to any article classified by the Tribunal as a Class III article; that is, obscene.

26. Again, we have the inappropriate concept of publishing a statue. And, more - the odd idea of copies and prints of a statue.

27. Under section 22, it is an offence to publish an indecent article to a juvenile

28. Once more, no one, speaking ordinary English, would talk of publishing a statue to anyone.

29. Section 23 makes it an offence to publicly display any indecent matter.

30. This section is the means by which the law seeks to control the display of indecent statues, not that of classification.

31. Section 24 creates an offence of publishing an indecent article "unless there is clearly and conspicuously displayed on that article or on a wrapper enclosing that article, a notice . . ." The notice must say - "WARNING: THIS ARTICLE CONTAINS MATERIAL WHICH MAY OFFEND AND MAY NOT BE DISTRIBUTED, SHOWN, PLAYED, OR PROJECTED TO A PERSON UNDER THE AGE OF 18 YEARS."

32. When one seeks to apply this section to something like a statue, the mind boggles. Would there be any sense at all in displaying a notice like this anywhere on the statue standing in the applicant's lobby? What would a reasonable man think if he read a warning notice stuck on a statue saying that it contains material that may offend? I suggest he would conclude that it had been put there by someone who has no idea what he is doing. The law-maker could not possibly have contemplated that this section would apply to a sculpture.

33. Section 27 punishes the publication of a Class II article otherwise than in accordance with the conditions imposed by the Tribunal.

34. Again, would anyone think of framing a condition such as - "This statue may not be published to anyone under the age of 18 years"? The language would be quite inappropriate.

35. Section 28 provides a defence to a charge in respect of the publication of an article or the public display of matter that the Tribunal has found that the publication or display is intended for the public good in the interests of science, literature, art or learning, or any other object of general concern.

36. Here again we have the obvious distinction between publishing an article and displaying matter.

37. Section 32 provides presumptions. A person is deemed to possess an article for publication if he possesses it with the intention of manufacturing or reproducing a copy of it, and, is presumed to possess an article for publication if he possesses more than 2 copies of it.

38. Once again, we have the law-maker thinking of articles as things that are normally copied. Statues are not such things.

39. The scheme of the Ordinance is perfectly sensible. It does not envisage the control of one-off objects such as sculptures by a system of classification. It does not seek to set up a system of censorship of works of art such as sculptures. The purpose of the system of classification is to safeguard the Hong Kong community against the harm of obscene and indecent media. The system of classification is designed to deal with articles that are normally published by several, or many copies, to an audience at different times and places. This does not mean, of course, that a person may display something like an obscene or indecent statue within the law. If he does so, he faces a prosecution under section 23, and he has the appropriate defences. This section mentions only "indecent" matter, but, of course, if something is obscene, it is also indecent.

40. This morning, after I had prepared the earlier part of this judgment, Mr Lam drew my attention to the case of Attorney General v Chan Chung-ho [1986] HKLR 147. I heard the parties in court on the significance of the case.

41. In that case, the respondents had been acquitted by a magistrate of charges under the Objectionable Publications Ordinance (Cap. 150), which has been repealed, on the basis that certain objects, such as sex stimulators, were not articles under that Ordinance. O'Connor J. held that these objects were capable of being articles. The definition of article under that Ordinance was much the same as under Chapter 390, so it is difficult for me to accept that a sex stimulator, for example, is a ". . . thing consisting of or containing matter to be read or looked at or both . . .". I would have thought that this object was to be used for other purposes. Whether that is so or not, O'Connor J. was dealing with a different Ordinance with different provisions setting up a different legislative scheme. Nothing in that judgment causes me to alter what I have written earlier.

42. I conclude that the Tribunal did not have jurisdiction to classify this statue as a Class II article, or at all, because it is not an article within the meaning of the statute. It made an error of law. The Tribunal classified something that it had no jurisdiction to classify. There is no need to remit this matter to the Tribunal. Indeed, there is nothing to remit; what the Tribunal did is a nullity.

43. There seems no reason why the applicant should not have his costs, and I order accordingly.