EASTERN EXPRESS PUBLISHER LTD. v. THE OBSCENE ARTICLES TRIBUNAL

Nos: 1, 2 and 3 of 1995
Obscene Articles Tribunal Appeals

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

______________

___________

JUDGMEN

_________

1. I have before me three appeals by the appellant against decisions by the Obscene Articles Tribunal.

2. The appeals are brought under section 30 of the Control of Obscene and Indecent Articles Ordinance (Cap. 390), which reads -

"(1) Any party to any proceedings before a Tribunal may appeal to the High Court against a decision of that Tribunal on a point of law by giving notice of appeal in writing setting out the grounds of that appeal to the Registrar within 14 days of that decision."

The First Appeal

The Purpose of the Proceedings before the Tribunal

3. The first decision (OAT reference OAT/44/95) was delivered on 25 April 1995. The matter was referred to the Tribunal under section 29 of the Ordinance, under which a court or a magistrate must refer to the Tribunal any question arising in proceedings before it or him whether any article is obscene or indecent, and any party to those proceedings and the Attorney General may appear and be heard at that reference. The matter arose in this way because the appellant has been summoned to the Magistrate's Court on an information laid by Mr Ben Kwok of the Television and Entertainment Licensing Authority that the appellant published an indecent article without the appropriate warning notice in terms of section 24(1) of the Ordinance.

4. According to the notice of determination issued by the Tribunal on 25 April 1995, this reference was not by the magistrate before whom the question had arisen, if it had, but by "Joseph TO, Crown Counsel".

5. The notes of the proceedings say that, according to Mr To, the article had already been classified by the Tribunal as a Class II article (indecent) and the final classification was published on 25 January 1995.

The "Reclassification"

6. On the face of it, it might seem odd that an article that has already been classified as a Class II article is referred again to the Tribunal to determine whether or not it is indecent, but I agree that this is the correct procedure.

7. The offence for which the appellant was summoned does not relate to whether or not the article has been classified as Class II. The core of the offence is publishing "an indecent article" without the prescribed warning. Whether or nor it has been classified as a Class II article is irrelevant, although there is a defence that the article has been classified as a Class I (that is, that it is neither obscene nor indecent). There is no offence of publishing an article classified as a Class II simpliciter; only one of publishing such an article contrary to any conditions imposed by the Tribunal. Indeed, there seems to be no point in classifying an article as Class II, unless the Tribunal imposes conditions relating to the publication of the article, because nothing flows from this, other than to provide a defence to an offence under section 21, which, presumably, is not the purpose of this classification.

8. The reason for the need to have another determination is that the legislation does not contemplate a situation where an article is or is not indecent absolutely; that is, without regard to the context and circumstances in which it was published. This is so because of the operation of section 10 of the Ordinance. This section, according to its rubric, gives "guidance" to the Tribunal. In fact, the section is more than "guidance"; it requires the Tribunal to have regard to the factors mentioned. It says, so far as it is relevant to this case -

"In determining whether an article is . . . indecent . . . or in classifying an article, the Tribunal shall have regard to -

(a) standards of morality, decency and propriety that are generally accepted by reasonable members of the community . . . ;

(b) the dominant effect of an article or matter as a whole;

(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) . . .

(e) whether the article or matter has an honest purpose or whether its content is merely camouflage designed to render acceptable any part of it."

9. This section makes it quite clear that whether or not an article is indecent has subjective elements; for example, it may depend on where, and in what circumstances, the article is, or may be, published, and whether or not there is an honest purpose.

10. Accordingly, an article may be classified as Class II because of those subjective factors, but it may not be indecent for the purposes of section 24 of the Ordinance because of different circumstances. It would have been the same the other way around - that an article may have been classified as Class I (neither indecent nor obscene), but indecent for the purposes of section 24 - but for the specific provision of a defence in this respect. It was necessary to provide this defence expressly because the Legislature appreciated that it would not exist otherwise. Hence, it is necessary, as was done here, for the article to be submitted again to the Tribunal for a determination of indecency under section 24, so that it can take account of the particular circumstances concerned.

The Article

11. The article concerned appeared in the bottom left hand corner of page 4 of the issue of the Eastern Express for 9 December 1994. It is an advertisement by, apparently, an art dealer. The advertisement measures about seven inches by five inches. Taking up about half the space, on the left, is a representation of the statue of David by Michelangelo, acknowledged world-wide to be a magnificent piece of art. The representation depicts the statue from about mid-thigh to almost the top of the head. To the right of the statue, there appears some text, which I will represent in comparative fonts -

12. I do not know what this means, but its meaning may be connected with the fact that the face of David has been slightly altered, presumably by computer technology, so that the expression is now, perhaps, a little surprised, a little down-cast. This alteration would not be readily apparent to the casual reader, and it takes a magnifying glass to see it clearly. No one at the hearing before the Tribunal and none of the counsel before me could suggest what the advertisement means directly, or by innuendo. It may be, of course, that this is part of the copywriter's skill; he wants the reader to stop and puzzle over the meaning, thus attracting attention to his work.

The Proceedings

13. At the hearing before the Tribunal, counsel for the Eastern Express produced two books; one a high-class educational text book for secondary school students, which has been approved by the Hong Kong government for use in schools, and the other, a good-quality book that aims to teach students about our world and its treasures by stories illustrated with drawings and text. In both of these books, there appears a representation of the statue of David as an example to students of fine art. I was surprised to read that, at the hearing, the "court" asked if these books had been submitted to the Tribunal for classification. It was thought that they had not.

14. No evidence was heard by the Tribunal.

Reasons Generally

15. It is convenient, at this stage, to say something generally about the giving of reasons for the decisions of the Tribunal. What I say here has application also to the other appeals.

16. Section 7(3) of the Ordinance says -

"Any point of law arising during any proceedings before a Tribunal shall be determined by the presiding magistrate who shall give reasons therefor in writing."

17. Section 14 (3) provides -

". . . a Tribunal shall not be required to give any reasons for any interim classification but may give guidance to the applicant in relation to the article submitted."

18. There is no express requirement imposing a general duty on the Tribunal to give reasons for its decisions on references or on classifications at a final hearings. But this duty is implied, both by the common law and by implication from this statute. The duty to give reasons is part of the duty to give a fair hearing. Where a body is set up by statute to make decisions affecting the rights and property of members of a community, especially a body such as the Tribunal, which is headed by a judicial officer, the people concerned, and the public generally, have a right to know on what basis the body has made its decisions. Even if there is no right of appeal, the body will usually be subject to judicial review, and judicial review cannot be effectively conducted without the superior courts knowing reasons for decisions. The case is stronger in the case of the Tribunal because a provision that says that reasons need not be given on an interim classification implies that they should be given following a full hearing, either for classification purposes or on references. And, in the case of this Ordinance, there is a right of appeal; a right of appeal only on points of law, but, of course, a right of appeal on points of law cannot be effectively exercised unless a party knows what facts were found, and how the law was applied to those facts.

19. The Tribunal, having a duty to give reasons, has a duty to give adequate reasons. They must be sufficient to enable the High Court to know what facts the Tribunal has found, how it has applied the law to those facts and how the Tribunal dealt with the substantial points that were raised. The reasons may be brief, but a mere recitation of a statutory formula is not enough. If the Tribunal has not done this; if the Tribunal does not give reasons sufficient to justify a particular decision, the Court may assume that the Tribunal had no such reasons.

The Reasons in this Case

20. Following the hearing, the Tribunal adjourned to deliberate. The presiding magistrate then gave the Tribunal's ruling. The reasons given are short in the extreme, and I reproduce them in full -

"The picture shows a wholly naked male person with his penis fully exposed. Looking at the article, as a whole and taking into consideration the provisions of section 10 the Tribunal determine the article to be a Class II article. [The books produced by counsel for the Eastern Express] have not been submitted to Tribunal for classification, does not mean they are not objectionable. Not appropriate for such picture to appear in a newspaper. Announcement made in court that for above reasons Tribunal determine that this article is a Class II, indecent article and Section 33(2) Certificate is to issue."

21. The article had, as I have said, already been classified as a Class II article in January 1995, so it is difficult to understand what the Tribunal thought it was doing by again classifying the article as Class II. The Tribunal seems to have misunderstood the purpose of the hearing, although Crown Counsel made this perfectly clear in limine. What the Tribunal was being asked to do was, not to reconsider the classification in January 1995, but to determine whether or not, in all the circumstances of the case presented to it, the article was indecent for the purposes of section 24.

The Grounds of Appeal

22. The appeal by the Eastern Express against this decision is on the following grounds -

"1) That the decision of the Tribunal is so irrational or unreasonable as to amount to an error of law;

2) The Tribunal has misunderstood or misapplied S. 10 Cap 390, and the evidence that the statue is depicted in a Hong Kong Government Secondary School textbook."

Consideration of the Appeal

23. The grounds of appeal do not specifically take the point that the Tribunal misdirected itself as to the purpose of the hearing, but I cannot ignore this. This is not an appeal concerning only the rights of individuals, such as a property dispute. There are broader considerations; I have before me the decision of a body concerned with the administration of justice, and if that decision is clearly wrong because the Tribunal proceeded on quite the wrong basis, I must do something about it. The appeal is in the nature of a judicial review. In my judgment, the fact that the Tribunal completely misunderstood the purpose of the hearing before it is a sufficient basis for me to interfere. In any event, however, the problem with the decision of the Tribunal does not end there.

24. The article was classified as Class II by the Tribunal. Section 2 (2) of the Ordinance says -

"For the purpose of this Ordinance -

(a) a thing is obscene if by reason of obscenity it is not suitable to be published to any person; and

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

25. A "juvenile" is, by virtue of section 2 (1) of the Ordinance, "a person under the age of eighteen years".

26. By section 8(2)(b), the Tribunal may classify an article as indecent "if it is of the opinion that the article is indecent."

27. The conclusion reached by the Tribunal indicates that it decided that the article contained a "thing" that, by reason, of indecency, was not suitable to be published to a juvenile, and that, taking into account the factors mentioned in section 10, including its intended or likely audience and whether or not there was an honest purpose, the article should properly be classified as a Class II article. By implication, it decided that the article was not such that it was unsuitable to be published to people other than juveniles.

28. The representation in the advertisement was essentially that of the statue of David as Michelangelo created it. Nothing was done to it that would make it indecent if it was not already so. Nothing was said in the text of the advertisement that would make it indecent if it was not already so. The statue of David has been in existence for some five hundred years. It is recognised universally as a magnificent example of renaissance art. I have never, until now, heard any sensible person suggest that it is indecent, even in the original, standing some 14 feet in height on view to anyone who cares to visit in, I believe, Florence. Even if the representation had been published in a publication intended to be, or likely to be, readily available to juveniles, as with the books produced at the hearing, I cannot believe that any reasonable person, with the normal standards of morality, decency and propriety of our community, would be of the opinion that it was unsuitable for publication to children. If one takes into account the factor that the advertisement was published in a serious English-language newspaper, on an inside page, and clearly intended, and likely, to be read by normal, reasonable, adult people, with clearly the honest purpose of advertising the art gallery concerned to those people, the conclusion of the Tribunal becomes totally incomprehensible. The conclusion is such that it could not have been reached reasonably; no reasonable Tribunal, considering the matter properly and correctly applying the law, could have reached that conclusion. The Tribunal must have been labouring under some misconception of the law, and this is responsible for the conclusion reached. Further, the statement by the presiding magistrate, presumably referring to the representation of the statue of David, that it was "Not appropriate for such picture to appear in a newspaper" indicates that the Tribunal did not apply its mind to the fact that, while finding that only juveniles were an unsuitable audience for the article, an adult newspaper was not intended, and unlikely, to be read by such an audience.

Conclusion on the First Appeal

29. Accordingly, I conclude that the Tribunal, in reaching its conclusion, was guilty of an error of law.

30. Section 31 (1) of the Ordinance provides that, in this situation, the High Court "may order [the Tribunal] to re-hear or re-open the proceedings to be determined in accordance with the point of law decided by it". Accordingly, I order that the Tribunal re-open the proceedings and determine them in accordance with this ruling and the law decided by me.

The Second Appeal

The Decision

31. The second appeal concerns a ruling by the presiding magistrate during a full hearing into an item published in the Eastern Express on 1 March 1995. The article was, somewhat reluctantly, reclassified as Class I (neither obscene nor indecent), but, at the outset of the hearing, Mr McCoy said he wanted to be told the names of the adjudicators who made the interim classification that the article was indecent. The magistrate asked why he wanted to know this. Mr McCoy explained that it was a matter of public importance; that the public have a right to know and that there should not by anonymous judicial decisions. Somewhat surprisingly, Crown Counsel opposed Mr McCoy's request. Mr McCoy quoted an authority. The magistrate said, quite correctly, that the authority concerned proceedings in open court, whereas section 14 of the Ordinance provided that the Tribunal was to consider an interim classification "in private and without the attendance of the applicant or any other person". He ruled that the names of the adjudicators who participated in the interim classification "will not be disclosed". The magistrate recognised that the matter was of "great public importance", and asked Mr McCoy if he wished to proceed with an appeal against his ruling at that stage. Mr McCoy said that he preferred to continue.

The Grounds of Appeal

32. The Eastern Express now appeals against this decision to refuse to disclose the names of adjudicators who made the interim classification on the grounds that -

"It is an error of law, and/or an error of jurisdiction for the Tribunal, in making a judicial determination, albeit in private, to demand anonymity and to refuse to disclose to one of the parties to that determination the names of the Magistrate and Adjudicators who reached that decision.

That the Tribunal erred in law in distinguishing the decision in R v Felixstowe Justices; ex parte Leigh [1987] 1 QB 582.

That the concept of anonymous decision-makers in a judicial hearing is contrary to the rule of law and/or the Bill of Rights and wrong in principle."

Consideration of the Appeal

33. There is no doubt that the making of an interim classification under section 14 is a judicial decision. There can also be no doubt that, on the authority of the Felixstowe Justices case, if any be needed, that judicial decisions should not be rendered anonymously. It can make no difference at all that the proceedings in relation to interim classifications are in private, without the attendance of any person. The purpose of that provision is not to protect the identity of the members of the Tribunal, but to speed the work of the Tribunal in making classifications of a large amount of material, most of which, I imagine, almost classifies itself without any possibility of challenge. Any statute that provides for departures from the usual principles of open justice must be limited strictly to its terms. Here, the statute does not even hint that the names of members of the Tribunal should be concealed. For practical purposes, the identity of the members should be made known so that an advocate appearing at a full hearing is aware whether the members before whom he appears are the same as, or different from, those who made the interim classification. This knowledge will influence how he presents his case. It is also important, in practice, that a party should know who made the interim classification in case there is some ground on which to challenge his participation. But, much more importantly, the point of one of great principle; that it is contrary to the interests of justice and the common good that any judicial decision, no matter how minor in importance, should be handed down by someone who is not readily identifiable. Certainly, all this must be so if there is no compelling reason why the identity of members should be kept secret. I can think of no such reason; neither could Mr Lam, and the magistrate does not suggest that there is any reason at all for anonymity, compelling or otherwise.

Conclusion of Second Appeal

34. It follows from what I have said earlier that, in declining to reveal the names of the members who made the interim classification in this case, the magistrate committed an error of law. The matter is remitted to the Tribunal for the proceedings to be re-opened and the names of the members of the Tribunal who made the interim classification disclosed in accordance with the law.

The Third Appeal

The Decision

35. At the same hearing as the decision mentioned above, another article was considered by the Tribunal. This was an item published in the Eastern Express newspaper dated 27 February 1995, and appeared on page 5. The article was

submitted to the Tribunal by Mr Gary YS Yeung, Assistant Commissioner for the Television and Entertainment Licensing Authority under section 13(2) of the Ordinance. This article was classified by the Tribunal as a Class II article.

The Article

36. The article takes up about two-thirds of the page. The head-line, which is very prominent, says : "KIDS CAN BUY COMICS PACKED WITH RAPE SCENES AND HARD-CORE VIOLENCE". There is a sub-title, within quotation marks, saying - "People are mutilated and their heads explode . . . but I just read these books to kill time". The text draws attention to the fact that pornographic publications are available to children in Hong Kong, describes some of the contents of these publications, and describes interviews with children about the availability of the material. Featured very prominently, there is collection of drawings, obviously meant to convey some of the contents of the publications described in the article. The main drawing features two girls, dressed only in under-clothing, kissing. Another depicts the same girls apparently "making love". Yet another shows a young girl eviscerated. There are others. They are certainly not the sort of thing one would want one's children seeing. The article is written by Mr Eric Wong, who holds a bachelor's degree in social science from the Hong Kong Chinese University. It mentions that there will be another article entitled "The Porn-Busters" published the next day.

37. On the same page of the newspaper, there is another article, with which the Tribunal was not concerned. This follows a similar theme; warning of computer pornography available to children. Here, however, there are no pictures.

The Reasons

38. The reasons for the Tribunal's decision are recorded as follows -

"Middle picture shows 2 girls embracing and kissing, apparently lesbians and in the process of making love in the way lesbians do. Picture on top left shows the same 2 girls holding very tightly to each other. Expression on their face shows quite clearly they are satisfying each other's sensual desires. Top right picture of a man on top of a woman. From facial expression its clear they are having intercourse. Left bottom picture shows a woman completely naked enticing a young boy or girl. There is also a picture of a girl with the torso split open exposing all the organs in her body. All these pictures are surely indecent. They can be published in a Class II adult comic book or magazine but not in a newspaper. There can be no honest purpose in publishing pictures which are clearly indecent and especially in a newspaper. Do not accept publication is for public good. This article is confirmed as Class II (indecent) article. Final classification of this article as a Class II (indecent) article will be notified in the newspapers."

The Grounds of Appeal

39. The appeal in this case is on the grounds -

"That the decision of the Tribunal is so irrational or unreasonable as to amount to an error of law That the Tribunal erred in law in not taking account the defence in S 28 Cap 390 That the Tribunal erred in law in its interpretation and applications of S 10 Cap 390."

Consideration of the Appeal

40. Here again, the Tribunal found that the article was not suitable for publication to juveniles, but was not unsuitable to be published to any person. Again, it seems that it failed to appreciate that the publication was in a serious newspaper that was not likely to attract the attention of juveniles.

41. The magistrate mentions only the pictures in the reasons; he deals with these at some length. But there is not one word about the text. He says: "All these pictures are surely indecent." But is the article, that is, the pictures and the text, including the head-line, taken together, indecent for the purposes of classifying the article as Class II having regard to the "guidelines" in section 10? That is the question that the Tribunal was required to answer, and it did not do so. He says: "They can be published in a Class II adult comic book or magazine but not in a newspaper." Does that mean the article can never be published in a newspaper, regardless of the circumstances? If that is what it means, and that is what it says, it is wrong. He says: "There can be no honest purpose in publishing pictures which are clearly indecent and especially in a newspaper." There can never be a honest purpose in publishing pictures that are "clearly indecent" in a newspaper? There can never be an honest purpose in publishing pictures that are "clearly indecent" in, for example, a gynaecological text book or a serious social study? Indecent in what way? Absolutely indecent? Indecent in all possible circumstances? Indecent for the purposes of the Ordinance? And this approach jumps the gun; one has to take into account the factors mentioned in section 10, including where article is, or is intended or is likely to be, published, and whether or not there is an honest purpose, before deciding whether the article should be classified as indecent for the purposes putting it in Class II. One does not decide that pictures are indecent for the purposes of classifying the article, and then decide that there can be no honest purpose in publishing them, especially in a newspaper. That approach is clearly wrong in law. He says: "Do not accept publication is for public good." I do not think this is of any relevance, because there is no question here of a defence to a charge, but the statement of reasons, if that is what is meant to be, is totally inadequate. What the Court wants to know, and what the party and the public wants to know, is why the Tribunal does not accept that it was for the public good. Without that, no one can possibly judge whether the decision bears any of the marks of reasonableness.

42. There is no indication in the reasons that the Tribunal considered seriously the point urged upon them that the publication of the article was for the honest purpose of drawing to the attention of parents and those responsible for children that there were dangers in the world of which they may be unaware, and against which they should guard. The Tribunal could not have done so because the reasons do not even mention the text of the article from which one would see that purpose. Having regard to the where the publication appeared, the terms of the text and the identity and qualification of the author, it is difficult to see how any reasonable tribunal could have concluded that this was not the honest purpose of the article.

43. There is also the problem with the decision that, apparently, the Tribunal did not consider imposing conditions relating to the publication of the article. It may have been so, after proper consideration of all the circumstances contemplated by section 10, which is not my function here, that a possible approach would have been to classify the article as Class II, imposing the condition that the article must not be published in such a way as it would, would be intended or would be likely to, come to the attention of juveniles.

Conclusion on the Third Appeal

44. On the grounds I have given, the decision of the Tribunal, as revealed by the reasons, is wrong in law. The matter is remitted to the Tribunal to re-open the proceedings to be determined in accordance with the law.

The Costs

45. I have found that the appellant was entirely justified in taking these proceedings on appeal. Section 31(c) says that "the High Court may make such order as to costs as it may think fit." There seems to be no reasons why the costs should not follow the event. Accordingly, the Tribunal is ordered to pay the appellant's costs.

General Comment

46. These cases have, in my view, involved a great waste of time, money and valuable resources. The purpose of the legislation is to safeguard our community against harm. I cannot believe that the isolated publication of the two items concerned in these appeals, or the disclosure of the identity the adjudicators, could have, by any stretch of the imagination, led to any harm at all to the people of Hong Kong, or that any reasonable person could have thought that could.