RE LOUI WAI PO AND ANOTHER

1993, No. MP1245

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The 1st Applicant is the Publisher and the 2nd Applicant the Proprietor of the Ming Pao Weekly Magazine.

They seek relief by way of Judicial Review of the Decision of Obscene Articles Tribunal to make an interim and final classification of an article appearing on page 128 in the issue of the magazine published on the 10th January 1993.

2. They complain that the first they knew about this classification was when the 1st Applicant was informed of this on the 14th April when he learnt that proceedings had been taken against him pursuant to Section 24 of The Control of Obscene and Indecent Articles Ordinance Cap. 390.

3. The article in question was entitled "Detailed Analysis of the current four interesting persons". I don't think that there was any suggestion that the text of the article could in any way be described as being indecent. The problem, if there was one, related to a photograph of the popular entertainer Madonna in which her bare breasts appeared in the photo.

4. The Television and Entertainment Licencing Authority (TELA) made a submission to the Tribunal on Form 2 on the 20th January.

5. Notices of an interim classification to the effect that the Article was indecent was published in English and Chinese Newspapers on the 29th January and a final classification to that effect was published on the 0th February.

It is common ground that the Registrar did not send any notice to the Applicants pursuant to Rule 7(2).

6. The Relief sought by the Applicants is :-

"1. A declaration that the interim classification by the Obscene Articles Tribunal made on or about 21st January 1993 of a photo which was published at page 128 of Issue No. 1261 of Ming Pao Weekly Magazine ("the said photo") shall not take effect until notice of the same has been duly served on the Applicants in accordance with Rule 7(2) of the Control of Obscene and Indecent Articles Rules ("the said Rules") and did not take effect in the absence of such notice

2. Further and in the alternative, a declaration that Section 15(1) and (5) of the Control of Obscene and Indecent Articles Ordinance, to the extent that they fail to provide for a right of a person who is entitled to request for a full hearing to be duly served a notice of the interim classification in the manner provided for under Rule 7(2) of the said Rules, or personally or in the ordinary course of mail, is inconsistent with Articles 10 and/or 16 of Section 8 of the Hong Kong Bill of Rights Ordinance and is hence repealed to the extent of inconsistency.

3. An order of certiorari to quash the interim and final classification of the said photo by the Obscene Articles Tribunal, notice of which was given by the Registrar on 29th January 1993 (interim classification) and 12th and 20th February 1993 (final classification).

4. A declaration that Sections 15(1) and (5), 24(2), 29 and 33 of the Control of Obscene and Indecent Articles Ordinance ("the Ordinance"), to the extent that (a) they create an offence irrespective of whether the 1st Applicant knows that the article concerned is indecent or not; (b) they confer on the Obscene Articles Tribunal an exclusive jurisdiction in criminal proceedings to determine whether an article is indecent, even when the same article has been previously classified by the Obscene Articles Tribunal: and (c) they provide that a classification of the Obscene Articles Tribunal is conclusive evidence of the issue of indecency in a criminal proceedings, even where the defendant has had no notice of the classification proceedings before the Obscene Articles Tribunal, are inconsistent with Articles 5, 10, 11 and 16 of Section 8 of the Hong Kong Bill of Rights Ordinance and are hence repealed.

5. Further and in the alternative to the relief sought at paragraph 4 herein above, a declaration that Section 33 of the Control of Obscene and Indecent Articles Ordinance, to the extent that a certificate of classification of Class II from the Obscene Articles Tribunal is conclusive evidence of indecency of the said photo in the criminal proceedings, even where the 1st Applicant has had no notice of the classification proceedings before the Obscene Articles Tribunal, is inconsistent with Articles 10 and 11 of Section 8 of the Hong Kong Bill of Rights Ordinance."

7. The amended grounds which were filed are fairly lengthy and embrace a consideration as to whether the provisions of the Ordinance can be reconciled with the requirements of the Bill of Rights.

8. Both parties agreed that it would be convenient to attempt to deal with 2 preliminary grounds in an attempt to dispose of this matter without the necessity of ventilating the other issues raised.

9. The 1st point related to the definition of an "article".

10. The amended grounds on this are :-

"3A.Section 10(1) of the Ordinance requires the Tribunal, in classifying an article, to take into account, inter alia, the dominant effect of an article as a whole.

3B. Section 2 of the Ordinance defines an article as anything consisting of any material to be read or looked at or both read and looked at. The Court of Appeal has held that "article" means a thing which is complete in itself having regard to all the circumstances, and that a single frame in a series of frames that are published at one time is not complete in itself for the purpose of the Ordinance: Obscene Articles Tribunal and Attorney General v. Freeman Holdings Ltd. (1993) CA, Civ. App. No.150 of 1993 (10 December 1993).

3C. The Tribunal has classified the said photo without any reference to the accompanying Chinese text. The said photo by itself cannot form an "article" within the meaning of the Ordinance, and in classifying the said photo without any reference to the accompanying Chinese text, the Tribunal has failed to comply with Section 10(1)(b) of the Ordinance, which it must take into account, and has acted in excess of its jurisdiction by classifying part of an article which it has no jurisdiction to do so."

11. It can be seen from these grounds that heavy reliance is placed upon the recent Court of Appeal case The Obscene Articles Tribunal and Attorney General v. Freeman Holdings Ltd. Unreported being CA 150 of 1993.

12. Mr. Neoh, Q.C. for the Applicants submitted that the facts of this case were very similar to the facts of the present case.

13. When TELA had made their submission to the Tribunal they had not submitted the whole of the article I have referred to. The article had appeared on both pages 128 and 129 of the issue and only p.128 had been submitted.

14. It was contended that having regard to the judgment of the Court of Appeal this was a fatal defect as the Tribunal had been unable to do what is was required to do namely consider the alleged offending article as a whole.

15. Macdougall V-P. said at p.5 of the judgment of the Court :-

" It is plain from the words "shall have regard to" in section 10 that, in coming to a determination, it is mandatory for the Tribunal to consider the matters specified in paragraphs (a) to (e) of subsection (1) of the section.

We find it impossible to escape the conclusion that the requirement in paragraph (b) that the Tribunal shall have regard to the dominant effect of an article as a whole can only mean that where the Commissioner forms the view that a single frame in a series of frames in a comic book is rejectionable and seeks the determination of the Tribunal, the Tribunal must have regard to the entire sequence of frames that form the complete story or separate installment in a series of installments in a story that appears in the comic book. It is the discrete story or installment in a story of which the frame forms a part that comprises the article. This must be so whether the frame is merely pictorial or whether it is a combination of a pictorial representation and the written word.

Moreover, if paragraph (e) were to be read in the right of the interpretation of the word 'article' for which Mr. Fitzpatrick contends. it would mean that the Tribunal would be obliged to have regard to whether a frame has an honest purpose on whether its content is merely camouflage designed to render acceptable any part of the frame. This, in our view, is a wholly distorted interpretation of the paragraph.

Indeed, an examination of the whole scheme of the Ordinance serves only to reinforce the conclusion that a single frame in a comic book does not constitute an article' for the purpose of the Ordinance."

16. While I have no doubt whatever that this is a correct analysis of the law I do not think that it has any application to the present case. The comic frames referred to were sequential and it seems clear that any attempt to consider frames individually without reference to the other frames in the series was bound to be unsatisfactory and incomplete. This situation can readily be distinguished from the situation in the present case. The reference made by TELA to the Tribunal was only to the photograph on p.128.

17. While I accept that the accompanying text may be important in determining the approach to be adopted by the Tribunal I do not think that it is here. The text refers to Madonna but the form of the photograph is entirely irrelevant to the script.

18. What the Tribunal was being asked to do was to classify the photograph which was submitted to them. It was clearly open to them to consider the photograph independently of the text and reach their conclusion as to what would be a suitable classification. To adopt the words of Section 10(1)(b) they were able to consider "the dominant effect of an article or of matter as a whole".

19. The 2nd preliminary point is referred to in the original grounds 1.2 and 3.

"1. Under Section 15(5) of the Control of Obscene and Indecent Articles Ordinance ("the Ordinance"), if no person requires a review of an interim classification of the Obscene Articles Tribunal within 5 days of that interim classification taking effect, the interim classification shall be deemed to be the classification of the Tribunal.

2. Under Rule 7(2) of the Control of Obscene and Indecent Articles Rules ("the said Rules"), the Registrar is required to serve by post on "each party to the proceedings to which the classification or determination relates, a notice in writing of the classification or determination" as soon as practicable after a classification, which includes an interim classification, is made. No such notice has ever been served by the Registrar on the Applicants.

3. Upon a true construction of Section 15(1) of the Ordinance, and taking into account that the Applicants have a statutory right to request for a review of the interim classification, and the drastic consequences that would have brought to the Applicants, including criminal prosecution, upon a Class II classification, an interim classification should not take effect until notice of the interim classification has been served on the Applicants pursuant to Rule 7 of the said Rules, notwithstanding the provisions of Section 4 of the Ordinance, which states that the classification shall not be regarded as taking effect until notice is given by Section 19(2) of the Ordinance."

20. I do not think that these grounds can succeed. The scheme of the Ordinance is that both a Publisher or a potential Prosecuting Authority can apply to the Tribunal for classification of articles.

21. I accept the validity of the submission made by Mr. Kwok for the Tribunal that references made under the Ordinance are really only the concern of the party making the application. It is an informal and expeditions procedure which does not contemplate the resolution of contests between a Publisher and a Prosecuting Authority. Where there is such an issue the appropriate forum would be any Court proceedings which may be initiated. It should also be added that Section 17 may be called in aid by a Party where an article has been classified as being indecent or obscene. This Section could presumably be invoked independent of any criminal proceedings which may be instituted.

22. Mr. Kwok adopted as an analogy the grant of leave to proceed with a Judicial Review. The object of the initial classification procedure was provide something akin to a filtering procedure which would enable interested parties to have some idea as to whether any particular article or material was likely to fall foul of the Ordinance.

23. It was only after criminal proceedings had been instituted that any question of a process of adjudication would arise.

24. Mr. Neoh did not accept this. He argued that having regard to the penal sanctions contained in Sections 18, 22, 24 and 27 it was unrealistic to regard the initial classification process as being an informal procedure. As untoward consequences could flow as a result of a classification of indecency it was quite wrong for a determination to be made following what amounted to an Ex parte application.

25. I do not think that this accurately describes the situation which prevails.

26. What is clear is that none of the penalties referred to in these Sections can be visited upon a Defendant unless criminal proceedings are instituted. I am satisfied that Mr. Kwok's analysis of the situation is the correct one.

27. If proceedings are commenced under any of the Sections referred to there would be a hearing before a Magistrate or a Judge. At some stage during the proceedings they would be adjourned for there to be a determination by the Tribunal as to whether the article or material could be classified as being indecent or obscene. This reference would be made pursuant to Section 29(2) of the Ordinance.

28. Mr. Neoh argued that this was not a satisfactory situation. It may be the case that a similarly constituted Tribunal may have considered the allegedly offending article previously and reached a determination unfavourable to the Defendant. They would then be placed in an invidious position if they were called upon to make a similar determination in connection with the criminal proceedings.

29. I do not think that this need create any problem. When the Tribunal was making their determination for the purpose of the criminal proceedings they would presumably have the advantage of submissions being made to them by all interested parties and a far more formal procedure would obtain than would be the case when they made the initial classification.

30. I have no doubt that what is contemplated in the Ordinance is that the initial classification process is an informal procedure which is designed for the convenience of parties to enable them to know where they stand in relation possible action being taken in respect of obscene or indecent articles. This is a notoriously difficult and controversial subject and it is clearly desirable that there should be some means available to enable an interested party to obtain some idea whether material was or was not likely to be deemed offensive.

31. No untoward consequences flow simply as a result of any classification being made. The untoward consequences ensue if criminal proceedings are instituted and a conviction is recorded against a Defendant. In that event the Defendant will have had the benefit of all the safeguards built into the criminal law process.

32. The consequence of this is that I can see no objection to the informal procedure whereby a classification can be obtained without the necessity of serving other interested parties.

33. No useful purpose is likely to be served by attempting to resolve differences between a Publisher and a Prosecuting Authority at this stage.

34. The issues between the parties are resolved if and when criminal proceedings are taken.

35. The result of my reaching these conclusions is that it is necessary for me to consider all of the grounds where complaint is made that the legislation falls foul of the Bill of Rights.

36. Complaint is made that the procedure laid down by the Ordinance for obtaining a classification offends against the requirements laid down in Article 10 of the Bill of Rights.

37. Article 10 provides :-

“	Equality before courts and right
	to fair and public hearing

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

[cf. ICCPR Art. 14.1]"

38. The first question which has to be considered is whether Article 10 has any application to the present case. As I have already stated the main thrust of the complaint is that the Applicants had no notice of TELA's application for the photograph to be classified and had no opportunity of making representations to the Tribunal to submit that the article and photograph were not indecent.

39. It seems to me though that the important point to bear in mind is that the application for classification was only a step being taken by TELA in an endeavour to seek guidance as to whether further action was appropriate. It could not in my view fairly be said that this was conclusively determinative of any issues between the Applicant and the Prosecuting Authority.

40. There would be an opportunity for the issues to be ventilated between the parties on an inter partes basis when the Magistrate hearing the summons which was issued referred the question of the alleged indecency to the Tribunal.

41. I am satisfied that the initial classification process was not a "determination ... of rights and obligations in a suit at law" or "decisive for private rights and obligations".

42. These quotations are from pages 5 and 27 of Kaplan v. U.K. being Application 7598/76 (1981) 21 Decisions and Reports of the European Commission of Human Rights.

43. This being the case Article 10 has no application whatever to the situation which arises here.

44. The other complaint which is made is that Article 16 of the Bill of Rights has not been complied with.

45. Article 16 reads :-

Freedom of opinion and expression

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression: this right shall include freedom to seek. receive and impart information and ideas of all kinds, regardless of frontiers. either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals.

[cf. ICCPR Art. 19]"

46. It will be noted that the proviso refers to the need to protect public morals.

47. To determine whether such a need exists it is necessary to undertake a balancing exercise which calls in question whether the restriction referred to is proportionate in all the circumstances.

48. This was aptly referred to in paras. 70, 71 and 72 of the judgment of The European Court in Open Door Counselling and Dublin Well Woman v. Ireland [1992] 15 EHRR 244.

" 70. Accordingly, the Court must examine the question of 'necessity' in the light of the principles developed in its case law. (See, inter alia, THE OBSERVER AND THE GUARDIAN V. UNITED KINGDOM (1991) 14 E.H.R.R. 153, para. 59.) It must determine whether there existed a pressing social need for the measures in question and, in particular, whether the restriction complained of was 'proportionate to the legitimate aim pursued'. (Ibid.)

71. In this context, it is appropriate to recall that freedom of expression is also applicable to 'information' or 'ideas' that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society.' (See, inter alia, the abovementioned HANDYSIDE V. UNITED KINGDOM 1 E.H.R.R. 737, para. 49.)

72. While the relevant restriction, as observed by the Government, is limited to the provision of information, it is recalled that it is not a criminal offence under Irish law for a pregnant woman to travel abroad in order to have an abortion. Furthermore, the injunction limited the freedom to receive and impart information with respect to services which are lawful in other Convention countries and may be crucial to a woman's health and well-being. Limitations on information concerning activities which, notwithstanding their moral implications, have been and continue to be tolerated by national authorities, call for careful scrutiny by the Convention institutions as to their conformity with the tenets of a democratic society."

49. I have no doubt that if thought is given to the safeguards built into the Hong Kong Legislation and The mischief which it is intended should be addressed it is not possible to come to the conclusion that there has been any unnecessary restriction of the freedom referred to in Article 16.

50. At the conclusion of his most helpful submission Mr. Kwok argued that this application was misconceived on account of the fact that there were at the present time extant criminal proceedings the outcome of which remained to be determined. In support of this contention he cited the passage appearing at p.752 of the speech of Lord Lane in Imperial Tobacco Ltd. v. Attorney General [1981] AC 718.

" Counsel appearing before your Lordships' House were unable to find any case in which a defendant in criminal proceedings already properly and not vexatiously instituted had applied for a declaration that the criminal proceedings were unfounded or based on a misapprehension as to the true meaning of the criminal statute. I do not find that dearth of authority surprising. It would be strange if a defendant to proper criminal proceedings were able to pre-empt those proceedings by application to a judge of the High Court whether sitting in the Commercial Court or elsewhere. What effect in law upon the criminal proceedings would any pronouncement from the High Court in these circumstances have? The criminal court would not be bound by the decision. In practical terms it would simply have the inevitable effect of prejudicing the criminal trial one way or the other.

Where there are concurrent proceedings in different courts between parties who for practical purposes are the same in each, and the same issue will have to be determined in each, the court has jurisdiction to stay one set of proceedings if it is just and convenient to do so or if the circumstances are such that one set of proceedings is vexatious and an abuse of the process of the court.

Where, however, criminal proceedings have been properly instituted and are not vexatious or an abuse of the process of the court it is not a proper exercise of the court's discretion to grant to the defendant in those proceedings a declaration that the facts to be alleged by the prosecution do not in law prove the offence charged."

I accept the validity of this submission. It is a further cogent reason why this application should be dismissed. Also the stay of the criminal proceedings will be lifted.

I make an order nisi that the Respondent will have its costs.