SHAM KOW LING v. OBSCENE ARTICLES TRIBUNAL

No. W1108 of 1991

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

OBSCENE APPEAL NO. 1 OF 1991

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J U D G M E N T

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1. This is an appeal against the decision of the Obscene Articles Tribunal pursuant to section 30 of the Control of Obscene and Indecent Articles Ordinance, Cap. 390.

2. The subject matter of the Tribunal's decision was Issue No. 468 of the Comic Book entitled "The Miraculous Palms of the Buddha". This issue was previously submitted to the Tribunal pursuant to s.13(2) of the Ordinance for classification. On 5th February 1991, the Tribunal made an interim classification in respect of this issue. No application was made to the Tribunal to review it at a full hearing and by virtue of s.15(5) of the Ordinance, the interim classification was deemed to be the classification of the Tribunal. This issue was classified as "indecent", that is, under Class II as defined in s.8(2) of the Ordinance. Any article which has been classified as indecent cannot be published unless there is clearly and conspicuously displayed on that article or on a wrapper enclosing that article a notice warning that "the article contains material which may offend and may not be sold to a person under the age of 18 years". Failure to display such a notice constitutes an offence under s. 24(2) of the Ordinance. On 23rd April 1991, the appellant was charged before a magistrate with such an offence in respect of this particular issue of the Comic Book. He pleaded not guilty. On 4th June 1991, upon his request, the magistrate referred that issue to the Tribunal pursuant to s.29(2) of the Ordinance. On 13th June 1991, the Tribunal determined that it was indecent. It is against this determination that the appellant now appeals to this Court.

3. On 13th September 1991, when the appeal first came before me, the appellant indicated that he wished to challenge the accuracy of the Notes of Proceedings before the Tribunal and that was in relation to one of the grounds of appeal. I ordered that the affirmations filed on behalf of the appellant should be passed to the Tribunal for its comments. Consequent to this, several affirmations were filed on behalf of the Tribunal as well as the appellant.

4. At the adjourned hearing, Mr Warren Chan, counsel for the appellant (who did not appear before the Tribunal), informed me that for the purpose of this appeal, he was prepared to accept the record kept by the Tribunal as accurate. This made it unnecessary for this Court to consider the affirmations filed or to have any cross-examination of the deponents.

5. There are four grounds set out in the Amended Notice of Appeal. Mr Chan very helpfully went through the various provisions of the Ordinance and told me that he would abandon the second ground, namely, that there was insufficient evidence on which the Tribunal could reasonably find that Issue No. 468 of the Comic Book was indecent. I think this is a proper concession. The Tribunal is entrusted by the Ordinance with the sole and exclusive jurisdiction to determine whether (a) any article is obscene or indecent; (b) any matter that is publicly displayed is indecent; or (c) the ground of defence under s.28, that is, the defence of publication for the public good is proved. (See s.8(1) and s.29(1)). Any person aggrieved by the decision of the Tribunal has a right of appeal to the High Court but only on a point of law (section 30(1)). Upon appeal, the High Court may confirm the decision of the Tribunal or may order it to re-hear or re-open the proceedings to be determined in accordance with the point of law decided by the High Court. Hence, contrary to ordinary expectations, the High Court has no power to reverse a decision or determination of the Tribunal. In other words, if the Tribunal has decided or determined that an article is obscene or indecent, the High Court cannot substitute its own determination for that of the Tribunal and say that the article is not obscene or not indecent. It can only decide on the point of law, if there is one, and order the Tribunal to reconsider its decision or determination in the light of the High Court's ruling on that point of law. It can, for example, indicate that the Tribunal has erred in taking irrelevant matters into consideration or in failing to take certain important factors into account and direct the Tribunal accordingly. However, it is very much an open question whether the High Court can go as far as directing that as a matter of law, a particular article is or is not obscene or indecent and even if it could, this must depend on the circumstances of each case. I doubt if it can because this would be contrary to the intention of the legislation which provides that the Tribunal, consisting of an experienced magistrate and two lay adjudicators, is to be the sole competent body to determine the standard of decency or obscenity and it is not for the High Court to usurp this function.

6. In this appeal, Mr Chan therefore did not ask me to reverse the determination of the Tribunal. He sought an order that there should be a rehearing of the proceedings. His grounds of appeal amounted to two main complaints: first, the Tribunal was in breach of the rules of natural justice and second, it erred in ruling inadmissible 57 issues of the same Comic Book sought to be produced by the appellant.

7. According to the Notes of Proceedings, which are no longer in dispute, the counsel who appeared before the Tribunal told the Tribunal that he was asking the appellant to produce all the issues printed for the past year, i.e. Nos. 423 to 467, 469 to 480. The Tribunal thereupon adjourned to consider the admissibility of these other issues of the Comic Book. After about 40 minutes, the Tribunal resumed and delivered its ruling. There was a reference to the case of R. v. Reiter [1954] 2 QB 16. The ruling went as follows:-

"The function of the Tribunal is to determine whether this copy of comic book (Exh. P1) is indecent or obscene. The contents of other comic books, whether of the same title or not, published heretofore are irrelevant. They will not be allowed to cloud the determination which must be made by the Tribunal alone. The Tribunal, therefore, does not propose to look at the comic books. Defendant (the appellant) tries to produce to compare their contents with the comic book in hand."

8. After this ruling, counsel was recorded to have said: "Rest of my submission was on comparison. In view of the Tribunal's ruling I'll end my submission here and now." Thereafter the Tribunal had another short adjournment after which it determined that this issue, that is Issue No. 468, of the Comic Book was indecent.

9. Mr Chan, on behalf of the appellant, submitted that there could be a number of purposes for which these other 57 issues of the same Comic Book were sought to be produced; that the Tribunal without first ascertaining the purpose, assumed that their production was for the purpose of comparison; that the Tribunal then referred to and relied on the case of R. v. Reiter, supra, without inviting counsel to make submission thereon and that it finally ruled those other issues inadmissible. This, counsel submitted, was a breach of the rules of natural justice. Reliance was placed on the remarks by the Full Court in Hui Shiu-wing v. Cheung Yuk-lin [1968] HKLR 501 at p.503-504. Miss Hartstein, counsel for the respondent, replied that it was up to counsel for the appellant appearing before the Tribunal to state his purpose for tendering the other issues and to correct any wrong assumption which the Tribunal might have had. This was not done and the appellant could not be heard to complain because of this. She also relied on what counsel said immediately after the Tribunal's ruling indicating that the purpose for producing the other issues was indeed for comparison.

10. Under s.29(2) of the Ordinance, in any civil or criminal proceedings, once a question arises as to any of the matters mentioned in s.29(1), for instance, whether an article is obscene or indecent, the court or magistrate is bound to refer that question to the Tribunal. Any party to these proceedings and the Attorney General may appear and be heard at any hearing of the Tribunal relating to-that reference. No procedure, however, has been provided in the Ordinance save s.11(1) which confers upon the Tribunal the powers of a magistrate. (It is interesting to note that the various powers given to the Tribunal and the procedure provided in s.11(2) are expressed to be applicable only to classification hearings under Part III of the Ordinance.) The purpose of the hearing before the Tribunal is to determine a question which in the ordinary case is to be tried by the trial court or magistrate in the civil or criminal proceedings and which has now, as a result of statutory provision, been left to the exclusive jurisidction of the Tribunal. In my view, 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. It is however not clear whether, in the case of a reference by a civil court, it is the civil or criminal procedure which should be followed, the Tribunal having only the powers of a magistrate by virtue of s.11(1). But 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. This is because once the question under reference is determined by the Tribunal (subject to a right of appeal on a point of law to the High Court), that decision is not only binding on an accused but in most cases may also have a decisive effect on the pending criminal proceedings. I should also add that, like all criminal proceedings, reasonably detailed notes of the proceedings and the brief reasons for a ruling or decision of the Tribunal should be kept.

11. From the Notes of Proceedings in the present case, it is not clear whether counsel for the appellant was given the opportunity of informing the Tribunal his purpose of tendering the other issues of the same Comic Book. But it is certainly clear that the Tribunal did not ascertain the purpose for which they were sought to be produced. It also appears that counsel was not invited to address the Tribunal before its ruling or to submit on the authorities, including R. v. Reiter, supra. Whether one can validly criticize the conduct of counsel is perhaps arguable, but he had no doubt the interest of the appellant to protect and was therefore entitled to expect the strict observance of the ordinary rules of practice and procedure. Looking at his last remarks before the Tribunal immediately after the ruling, I do not think those can be regarded as unequivocal indications that he intended to produce the other issues solely for the purpose of comparison. In the circumstances of this case, I am of the view that there was a breach of the rules of natural justice.

12. However, Mr Chan quite fairly indicated to me that if I take the view that the Tribunal was correct in excluding the other issues of the same Comic Book, then notwithstanding the technical breach of the rules of natural justice, his appeal must fail. I agree. This is because if these other issues are not admissible in any event, the appellant has not been prejudiced by their exclusion. And even if the Tribunal's determination is set aside on the ground of procedural irregularities and an order is made for a rehearing, the result would be the same.

13. On the admissibility of these other issues, I think it is not disputed by both parties that R. v. Reiter, supra, represents good law. There, the English Court of Appeal adopted and applied the observations in Galletly v. Laird [1953] SC(J) 16 to the effect that the character of a book complained of is to be ascertained by examining the book itself which provides the best evidence of its own indecency or obscenity or of the absence of such qualities and that evidence designed to show that other books in public circulation are not materially different in character from the book under complaint is not admissible. As the Lord Justice-General in Galletly v. Laird said, "The character of other books is a collateral issue, the exploration of which would be endless and futile. If the books produced by the prosecution are indecent or obscene, their quality in that respect cannot be made any better by examining other books....". In the present case, if, therefore, the purpose of tendering the other issues of the same Comic Book was to compare their contents with the issue in question, then the Tribunal was right in ruling them inadmissible.

14. While accepting this as correct, counsel for the appellant submitted that there were at least two other purposes for which the other issues were sought to be tendered as evidence. First, to show that if the Tribunal looked at the issue in question in the context of the prior and subsequent issues, and considering the story as a whole, the Tribunal might come to the conclusion that the issue in question was not indecent. Second, to show that the climate of literature in kung fu comic books was such that the defence of public good might be available to the Defence.

15. With regard to the first point, it is submitted that in determining the character of an article, the Tribunal was obliged to have regard to the guidelines set down by s.10 of the Ordinance, in particular s.10(1)(b), namely, the dominant effect of an article or of matter as a whole. Mr Chan pointed out that the issue in question, that is, Issue No.468, was one of a long series and only a part in a single story as contained in the issues starting from No.423 up to No.480. This was evident from a passage at the beginning of Issue No.468 which gave a brief summary of what the story was about in the previous issues and a passage at the end saying that more was to come in the next issue. It is submitted that Issue No. 468 was just like a chapter in a story book and hence this issue and the other issues must be read together to determine their dominant effect as a whole. That being the case, counsel said, all these other issues are clearly relevant and admissible. On the other hand, Miss Hartstein argued that Issue No.468 was a comic book in itself and was regarded as an article within the definition of s.2 of the Ordinance and that it would be absurd to say that all the issues were to be read as a whole. She submitted that each issue was purchased separately and that totality of an article was different from totality of a story.

16. I think Miss Hartstein is clearly right. Issue No.468 and the other issues were published at different times over a period of more than one year. Each of these issues was printed and published separately, packaged and circulated separately, sold and purchased separately. Each issue is not analogous to a chapter in a story book: all the chapters are bound into one volume and sold or purchased as a book. I am sure that not too many readers of this Comic Book would have purchased all of the 50 odd issues and certainly very few readers would have read them together as a book at any one time. The Tribunal is obliged to consider the dominant effect of an article as a whole. In my opinion, the article it has to look at must be the article which it has to classify, the article which is the subject matter of a criminal charge, the article which is the subject matter of a reference and/or the article on which a warning notice is to be displayed. Issue No. 468 was published and sold as a separate and individual article. It is the publication of this particular issue in January 1991 and the presence or absence of a warning notice thereon which are being questioned in court. It is the character of this issue which falls to be determined by the Tribunal, not the character of this Comic Book or the story depicted in these issues. If all the issues of this Comic Book were to be read together in order to determine the character of any one of the issues, it would effectually mean that the Tribunal could not consider any of them until the authors of this Comic Book had finished the whole story which could continue for some time. This would render absurd the statutory requirement of displaying a warning notice on an indecent article because even before the Tribunal could make any determination of indecency, all the issues of the book or story would have been circulated without any such notice. For these reasons, I take the view that the other issues of this Comic Book are irrelevant to the determination on the character of Issue No.468 and that the Tribunal was right in refusing to look at them.

17. With regard to the argument that the other issues may be relevant in deciding whether the statutory defence of publication for the public good can be made out, counsel relied on s.28 of the Ordinance and the case of R. v. Penguin Books, Ltd. [1961] Crim. LR 176. It is a case concerning the novel Lady Chatterley's Lover by D.H. Lawrence. The English court ruled that the literary merits of the book in issue might be compared with the literary merits or demerits of other books but the comparison should not extend to the degree of obscenity of other books not prosecuted and constantly read. It was therefore submitted that evidence relating to other books might be admitted to establish the climate of literature and that was clearly relevant to the defence under s.28 that the publication has been "intended for the public good on the ground that such publication... was in the interests of science, literature, art or learning, or any other object of general concern". Miss Hartstein argued that the question of publication for the public good had not been referred to the Tribunal which was not asked to consider whether there was a statutory defence.

18. I accept on the authority of R. v. Penguin Books, Ltd., supra. that as a matter of general principle, in relation to the statutory defence under s.28, it is permissible to rely on books or articles of a similar nature to the one in question to show the climate of literature, art or learning prevalent at a particular time in society. If the question of whether this defence is made out or not is referred to the Tribunal, I agree that other publications may be relevant and hence admissible.

19. I notice from the Certificate of Determination dated 13th June 1991 issued by the Tribunal that it had "pursuant to section 29(1) and (2)" of the Ordinance determined that Issue No. 468 was indecent. Section 29(1) provides as follows:-

"A Tribunal shall have exclusive jurisdiction to determine 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."

20. Section 29(2) provides for the reference by a court or magistrate for the determination of the Tribunal of any of these three questions. It is not clear from the Certificate or indeed any evidence before me which one or more of these questions had been referred to the Tribunal. Of these, we are not concerned with (b). It is, of course, arguable that the reference in the present case can relate to (a) or (c) or both as indeed argued by the appellant. However, in the light of the facts of this case, this cannot be sustainable. The appellant was charged before the magistrate for an offence under s.24(1) of the Ordinance. He pleaded not guilty and the article was referred by the magistrate to the Tribunal. The trial has yet to take place, pending the Tribunal's determination. I cannot see how the statutory defence under s.28 could have arisen as a question for reference at that stage. It would be more desirable if the document referring the question to the Tribunal was put in evidence or, better still, if the Certificate of Determination could specify under which paragraph of s.29(1) the question was referred to the Tribunal. However, in the circumstances of the present case, it is quite obvious that the reference must have related to the question of obscenity or indecency and not the statutory defence. It may be that at a later stage, the trial magistrate may find it necessary to refer the question of this statutory defence for the determination by the Tribunal. But it could not have been a question under consideration by the Tribunal at the hearing in June 1991. That being the case, I do not think these other issues of the same Comic Book could have been relevant at that stage.

    In these circumstances, there being no other purpose for which these other issues were sought to be adduced, I am of the view that the Tribunal was right in ruling them inadmissible. Notwithstanding the fact that there was a technical breach of the rules of natural justice, the ruling of the Tribunal would have been the same and the appellant was in no way prejudiced. I would therefore dismiss the appeal and make an order nisi that the appellant do pay the respondent the costs of this appeal.