NEXT MAGAZINE PUBLISHING LTD. v. THE OBSCENE ARTICLES TRIBUNAL

HEADNOTE

[A single photograph can constitute an article capable of classification under the Control of Obscene and Indecent Articles Ordinance (Cap. 390), provided that (a) it does not form part of a series of photographs published at the same time, and (b) it is not incorporated in or illustrative of any accompanying text. Decisions of the Court of Appeal in Freeman Holdings Ltd. v. Obscene Articles Tribunal (CA 150/93) and R. v. Obscene Articles Tribunal ex p. Loui Wai Po (CA 49/94) explained and distinguished.]

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

OBSCENE ARTICLES TRIBUNAL APPEAL NO. 4 OF 1995

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J U D G M E N T

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INTRODUCTION

1. On 25th August 1994, the Obscene Articles Tribunal ("the Tribunal") made three interim classifications relating to Issue 230 of NEXT published on 5th August 1994. NEXT is a magazine in the Chinese language. Those three classifications related to :

(i) the front cover of the magazine,

(ii) one of the three editorials on page 3 of the magazine, and

(iii) an article on pages 52 - 63 of the magazine.

The Tribunal classified each of them Class II articles, i.e. that they were indecent.

2. On 26th September 1994, the Tribunal made two further interim classifications, this time relating to Issue 234 of NEXT published on 2nd September 1994. Those classifications related to :

(i) the front cover of the magazine, and

(ii) an article on pages 36 - 47 of the magazine.

The Tribunal classified them as Class II articles as well.

3. The Tribunal was not required to review those classifications at a full hearing. Accordingly, the interim classifications were deemed to be the classifications of the Tribunal. However, on 27th January 1995, the publishers of the magazine, Next Magazine Publishing Limited, requested the Tribunal to reconsider these classifications. On 11th May 1995, the Tribunal acceded to that request. It duly reconsidered them on the following day. However, the Tribunal decided to confirm the classifications, and the publishers now appeal against the confirmation of those classifications.

ISSUE 230

4. The articles in Issue 230 to which the classifications related concerned China's planned conception policy. The front cover consisted of a colour photograph of a pregnant woman. However, in a separate box on the front cover was a smaller photograph also in colour, 1½" x 2" large, which depicted a still-born foetus covered in blood. A large headline "Slaughter of Infants" was superimposed over the bottom of the photograph of the woman, but it did not obscure the photograph of the foetus in any way.

5. One of the three editorials on page 3 of the magazine explained how the photograph of the foetus had been taken. The magazine's reporters had obtained the foetus from a hospital pretending to be students. The foetus was about 22 weeks old. After photographing it, the foetus was carefully buried. The editorial disclosed that women who became pregnant contrary to China's planned conception policy were hunted down by local village groups. They were forced to have their foetuses aborted, however close they were to confinement. The same colour photograph of the foetus, slightly smaller in size, also appeared on the page.

6. The feature article on pages 52 - 63 of the magazine was a piece of investigative journalism describing in graphic detail the enforcement of the planned conception policy, the corruption of those responsible for implementing it and the tragic effect it has on family life. It described how the foetuses were aborted, how they were either sold or disposed of, and how the placenta was sold as nutrition for other pregnant women. Two of the photographs which accompanied the article need to be mentioned. One is the same photograph of the foetus which appeared on the front cover and in the editorial. Although the size of the foetus was the same as in the editorial, the photograph itself was much larger as it showed the field in which the foetus had been laid out. The second was a photograph of an object wrapped in a plastic bag. It would not have been identifiable without its caption which referred to the placenta being sold as nutritional food.

ISSUE 234

7. The articles in Issue 234 to which the classifications related concerned a "doctor" in the Philippines who performed operations with his bare hands. The front cover consisted of a colour photograph of a woman lying on her back on a couch or bed in what appears to be someone's home. She has lifted her blouse, exposing her brassiere and her naked stomach. A man stands next to her. He has his hands on her stomach. There is a considerable amount of blood, both on his hands and on her stomach, and the blood is dripping into a bowl next to her which is being held by someone out of the picture. Superimposed over the photograph, but not obscuring the woman in any material way, are the words "The Asian No. 1 Witch Doctor. Cutting Open The Abdomen With Bare Hands".

8. The article on pages 36 - 47 of the magazine was another piece of investigative journalism, though on this occasion the article was an exposé of what was claimed to be a fraud practiced by the "doctor", exploiting the vulnerability of sick people who might be prepared to take extreme steps to obtain effective treatment for their ailments. The magazine's reporters were invited to attend two operations, in both of which the "doctor" appeared to open up the stomachs of his patients by stabbing at them with his bare hands. A considerable amount of blood appeared to spurt out. The "doctor" then appeared to put his hand inside their stomachs, and after a while he appeared to remove bodily tissue which was then disposed of. After the operations, there appeared to be no wounds or scars on the patients, and the patients said that they had not felt anything.

9. The article, however, went on to claim that the operations were fake, and that by sleight of hand the "doctor" had concealed that what he had in fact done was to break a small plastic bag containing red liquid which resembled blood over the patients' stomachs and had pretended to put his hand into their stomachs. The reporters had found such packets in a refrigerator in the "doctor's" operating theatre. The article was accompanied by a number of photographs of the same type as that which appeared on the cover.

THE EXTENT OF THE CLASSIFIED ARTICLE ON PAGE 3 OF ISSUE 230

10. The publishers complain that the article on page 3 of Issue 230 which the Tribunal classified as indecent was the whole of page 3. Page 3 included two other editorial features. No complaint was made about those two editorial features by the Commissioner of the Television and Entertainment Licensing Authority who referred the articles to the Tribunal in the first place. The Tribunal realised that, because page 11 of the Record of Proceedings recorded that the article which the Tribunal had to address was that part of page 3 which related to China's planned conception policy. I appreciate that on page 21 of the Record the Presiding Magistrate is recorded as referring to the whole of page 3, but what the Presiding Magistrate plainly meant to refer to there was the fact that the complaint related not just to the photograph on page 3, but also to the one editorial which accompanied that photograph. I therefore reject the complaint that the article on page 3 of Issue 230 which the Tribunal classified was the whole of page 3.

CAN A PHOTOGRAPH BY ITSELF BE AN ARTICLE CAPABLE OF CLASSIFICATION?

11. The publishers claim that the Tribunal erred in law in treating the photographs on the front covers of the two issues as articles which, without more, were capable of being classified in their own right. If the matter was free from authority, I would have had little hesitation in rejecting this submission. Section 2(1) of the Control of Obscene and Indecent Articles Ordinance (Cap. 390) ("the Ordinance") defines an article, inter alia, as "any thing consisting of ... material to be ... looked at". A photograph comes within that definition. Section 8(2)(a) of the Ordinance empowers the Tribunal to "refuse an application to make a classification in respect of any article if it considers that [the] article cannot be adequately described for the purpose of giving notice of classification." The two photographs in question can be adequately described, namely the photographs on the front covers of the relevant issues of the magazine.

12. I do not overlook section 10(1) of the Ordinance which identifies five matters which the Tribunal must have regard to in determining whether an article is indecent. One of those matters is "(b) the dominant effect of an article ... as a whole". These words mean that in determining whether either of the two photographs complained of were indecent the Tribunal had to look at the photographs in the context in which they appeared, namely to highlight the readers' attention to features in the magazines themselves. I do not see how the words in section 10(1)(b) mean that the photographs cannot by themselves be treated as articles capable of classification.

13. However, it is said by Mr. Wong Hin Lee for the publishers that the matter is not free from authority. The publishers claim that the decisions of the Court of Appeal in Freeman Holdings Ltd v. Obscene Articles Tribunal (CA 150/93) and R. v. Obscene Articles Tribunal ex p. Loui Wai Po (CA 49/94) are authority for the proposition that a photograph standing alone cannot constitute an article capable of classification under the Ordinance. In Freeman Holdings, it was held that a single frame in a comic strip could not constitute an article for the purposes of the Ordinance. In Loui Wai Po, it was held that a photograph accompanying and illustrating a newspaper article could not by itself constitute an article for the purposes of the Ordinance. However, an examination of the judgments in both these cases show that the underlying rationale was that the single frame in the comic strip, and the single photograph in the newspaper article, were each an integral part of the comic strip and the newspaper article respectively. As Macdougall V.-P. said in Freeman Holdings :

"It is the discrete story or instalment in a story of which the frames form a part that comprises the article".

And as Power A.C.J. said in Loui Wai Po :

"... it was never intended by the Ordinance that photographs which are incorporated and illustrative of a text should be ... considered [as an article capable of classification on its own]."

I can discern nothing in these authorities which prevents a single photograph, which is not incorporated in or illustrative of a text, or which does not form part of a series of photographs, from constituting an article capable of classification on its own.

14. For these reasons, I conclude that the Tribunal did not err in law when it treated the photographs on the front cover of the two issues as articles which by themselves were capable of classification under the Ordinance. They were not incorporated in or illustrative of the text in the editorial or the feature articles. They merely drew the readers' attention to the subject-matter of the articles within the magazine itself.

THE ALLEGATION OF INCONSISTENCY

15. The publishers complain that some of the decisions of the Tribunal which are the subject of this appeal are inconsistent with decisions reached by the same Tribunal on the same day about other articles in another issue of NEXT. I have glanced at those articles, and for the purposes of argument I am prepared to assume, without in any way deciding, that the decisions are inconsistent with each other. However, that does not get the publishers anywhere. If the decisions appealed from are unimpeachable, it does not matter if, in relation to other articles, the Tribunal erred in favour of the publishers. The publishers cannot use the windfall of an erroneous decision in their favour in relation to other articles to impeach the decisions to which the present appeal relates.

THE EDITORIAL AND THE FEATURE ARTICLES

16. The publishers complain of the classification of page 3 and pages 52 - 63 of Issue 230, and pages 32 - 47 of Issue 234, as indecent. Their contentions, when properly analysed, rest, I think, on four propositions :

(i) The articles classified as indecent were the texts of the editorial and the feature article in Issue 230 and the text of the feature article in Issue 234, which included the photographs of the foetus in Issue 230 and the photographs of the "doctor" operating on his patients in Issue 234.

(ii) The only part of the articles so classified which were capable of being characterised as indecent were the photographs of the foetus in Issue 230 and the photographs of the "doctor" operating on his patients in Issue 234.

(iii) In classifying the articles as indecent, the Tribunal erred in law in ignoring the dominant effect of the articles as a whole.

(iv) Even if the Tribunal did not err in law in that respect, its decisions that the photographs alone rendered the articles indecent were ones which no Tribunal could reasonably reach. In reaching those decisions, it is said that the Tribunal must have placed undue weight on the photographs.

17. I accept the first of these propositions. As for the second, I note that when the Presiding Magistrate announced the Tribunal's findings, he described the text of the feature article in Issue 230 as "gross and terribly discomforting". However, I do not regard him as saying that the Tribunal would have classified the text without the photograph of the foetus as indecent. Simply because the text described unpalatable, and what may be to some people offensive, features of China's planned conception policy does not make the text indecent. Without the photographs, the editorial in Issue 230 and the feature articles in Issues 230 and 234 could not possibly have been characterised as indecent. I therefore accept the second proposition.

18. However, I cannot accept the third proposition. In relation to the editorial in Issue 230, I simply do not see anything in the language which the Presiding Magistrate used which indicates that the Tribunal did not have regard to the dominant effect of the article as a whole. In relation to the feature article in Issue 230, it is plain that the Tribunal did not ignore the text of the article. On the contrary : by describing it as "gross and terribly discomforting", the Tribunal made it clear that it took the text into account. Plainly the Tribunal considered the degree of importance to be attached to the photograph of the foetus because it described the photograph of the foetus as the "focal point" of the article. In these circumstances, there is no basis whatever for saying that the Tribunal ignored the dominant effect of the feature article in Issue 230 as a whole. In relation to the feature article in Issue 234, it is true that the Presiding Magistrate referred only to the photographs which illustrated the text, but I cannot infer from that that the Tribunal ignored the dominant effect of that article as a whole.

19. The real issue on this appeal, in my view, is the correctness of proposition (iv). I must, of course, guard against substituting my own view for that of the Tribunal, which is the body which the legislature has decided should be the ultimate arbiter of whether articles are indecent. I must bear in mind also that the weight to be attached to the photographs was a matter for the Tribunal. In relation to the editorial and the feature article in Issue 230, it was, in my view, open to the Tribunal reasonably to conclude :

(a) that the photograph of the foetus, having regard to its size and prominence at the beginning of the text, was the focal point of the feature article; and

(b) that it was unpleasant and repulsive.

It was also open to the Tribunal reasonably to conclude that the inclusion of the photograph of the foetus in both the editorial and the feature article in Issue 230 was not done for an honest purpose. The portrayal of the effect of China's planned conception policy was not advanced by including the photograph of the foetus. In these circumstances, I cannot say that the Tribunal gave the photographs of the foetus undue weight. Whatever my own view might have been, I cannot characterise as Wednesbury unreasonable the conclusion of the Tribunal that, having regard to the dominant effect of the articles as a whole, the photographs rendered the editorial and the feature article indecent. In reaching that view, I have borne in mind section 2(2)(b) of the Ordinance which provides that "a thing is indecent if by reason of indecency it is not suitable to be published to a juvenile", and section 2(3) of the Ordinance which provides that "indecency" includes "repulsiveness". In particular, I have borne in mind that the Tribunal took the view that the magazine was, in the words of the Presiding Magistrate, "a family-type magazine". Mr. Wong did not characterise that description of the magazine as Wednesbury unreasonable.

20. However, I think that the feature article in Issue 234 is a different matter. A person reading the feature article would realise that the blood on the hands of the "doctor" and on the stomachs of his patients was not real. The effect was an entirely theatrical one. Although the photographs have the appearance of what the Tribunal described as "gory, gruesome and horrifying", the feature article showed that they were no such thing. In my view, it was not open to the Tribunal reasonably to conclude that in those circumstances the photographs alone, when viewed in the context of the article as a whole, rendered the article indecent. Nor was it open to the Tribunal reasonably to conclude that the article did not serve an honest purpose because of the inclusion of the photographs. The photographs were necessary in order to show how realistic the "doctor" had made his operations to appear.

HONEST PURPOSE

21. Finally, the publishers contend that the Tribunal erred in law in concluding that the cover photographs did not have an honest purpose. The Tribunal found that the photograph on the cover of Issue 230 did not have an honest purpose because its purpose was to stimulate sales. Although it did not actually give a reason for determining why the photograph on the cover of Issue 234 did not have an honest purpose, I think I can fairly assume that it was for the same reason.

22. I do not think that the Tribunal erred in this respect. The Tribunal was entitled reasonably to conclude that the photograph of the foetus on the cover of Issue 230 was only there to encourage readers to buy the magazine, and that it did not advance the thrust of the reasoned attack on China's planned conception policy. Moreover, the Tribunal was, I think, entitled reasonably to conclude that the photograph of the "doctor" operating on his patient on the cover of Issue 234 was there only to encourage readers to buy the magazine. The point that the blood was only theatrical only appeared from the feature article which was not part of the article on the front cover. The headline superimposed over the front cover did nothing to dispel the impression that the blood was real.

CONCLUSION

23. For these reasons, I allow the appeal relating to the classification of the feature article on pages 36 - 47 of Issue 234, and I set aside the classification of the Tribunal. If I had had power to do so, I would have substituted for it the classification of Class I. After all, my view is that, having regard to the dominant effect of the article as a whole, no Tribunal could reasonably have concluded that the article was indecent. However, section 31(a) of the Ordinance does not give me that power. Accordingly, I remit the classification of that article back to the Tribunal, and I order it to re-hear its classification and determine it in accordance with the legal principles which I have sought to identify. However, apart from the classification of that article, this appeal must be dismissed.