SUM MUI TAI AND ANOTHER V. OBSCENE ARTICLES TRIBUNAL

1993, No. M.P.2641

HEADNOTE

Public display of indecent matter - referral by magistrate to Tribunal - formality - duty on Tribunal to consider the matter referred.

Ss. 10, 23, 29, 30 & 31 of the control of Obscene and Indecent Articles Ordinance (Cap. 390).

 

1993, No. MP 2641

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. There is a cocktail lounge in Hankow Road, Tsimshatsui which has been in Hong Kong for over 20 years. It goes by the name of "Bottoms Up", which is a drinking term often used by men in bars. In order to attract members of the public to come to this bar, there has been displayed outside the building, a large illuminated sign showing some 15 portions of the female posterior presumably as a play on the word "bottom". The bar achieved a degree of tourist attraction by being filmed in one of the well-known James Bond films, and indeed, there is a displayed outside the bar the words "The Man with the Golden Gun", this being the name of the James Bond film.

2. During the past 20 odd years, this bar has never been prosecuted and appears to have been run both for locals and tourists. It features in the Hong Kong tourist brochure, no doubt for visitors to Hong Kong to go along to see where this famous James Bond film occurred. For some 20 years, there has also been placed outside the premises a triangular board which contains the words "Happy Hour 4.30 to 8.30. $48 will give you 2 drinks for the price of one. Beers, normal mixed drinks and stand cocktails Happy Hour 4.30 to 8.30 p.m.". Underneath this on one side is displayed a photograph of a lady's naked breasts, with the words underneath "As seen in The Man with the Golden Gun". On the other side of this triangular board are similar words advertising the happy hour and there is displayed a photograph. It is of a lady who is draped with some material. I am told by both Counsel that it is some form of drape, which covers this lady's body apart from one breast which is naked, and underneath the photograph are the words "No cover charge". The police on one of its regular visits to check licensed premises seized the board and subsequently charged the manager and his wife. No one has suggested that the large illuminated sign is in anyway improper.

3. On 19th February this year, they were charged with an offence contrary to S.23 of the Control of Obscene and Indecent Articles Ordinance, Cap. 390 which has been part of Hong Kong Law, for some 16 years or so. The charge reads as follows:

"Cheung King Chuen and Sum Mui Tai, you are charged that on the 9th of February 1993, at 'Bottoms Up Cocktail Lounge' in Kowloon, you publicly displayed indecent matters, namely, one triangular sign-board with one naked girl picture and one naked woman breast picture."

4. The word "Article" is defined in S.1 of the Ordinance, as meaning anything consisting of or containing material to be read or looked at etc., and relates to charges under Sections 21 & 22. Here the prosecution have chosen to charge the board itself as the "indecent matters". The charge came before the Magistrate, Mr. Davies, and it is difficult to find out what happened in this case as so much appears to have been done informally. By virtue of S.29(1): "A Tribunal shall have exclusive jurisdiction to determine whether .......... (b) any matter that is publicly displayed is indecent", and by virtue of S.29(2): ".... where in any criminal proceedings before a Magistrate a question arises as to any of the matters mentioned in subsection (1)", the Magistrate shall refer that question to the Tribunal. In my judgment, it is important that the referral by the Magistrate is a formal one. He must refer to the Tribunal precisely the question which the Tribunal has to decide. In this case, he had power to refer "any matter that is publicly displayed "which was charged as the triangular sign board with these words and pictures on it. The Tribunal apparently did not know what it had to decide, because the Presiding Magistrate, Mr. Yanne, said on March 11th "It is not clear what the Tribunal is being asked to determine under S.29(2). Case to be sent back to the trial magistrate for clarification."

5. The Prosecuting Officer had produced the whole signboard to the Tribunal.

6. There then passed Memos between the Prosecuting Officer and the clerk to the trial magistrate which indicated that what the Prosecution wanted referred was only the two pictures. The Defendants nor their legal advisers were privy to these private communications.

7. The Prosecuting police officer then on March 22nd sent a memo:

"Please advise the Magistrate that the following specific articles to be viewed (a)) only the picture of a naked woman (b) only the picture of a woman's breast."

8. Again the Defendants nor their lawyers were aware of this. The Tribunal then made a decision that the photograph of a pair of breasts which one might have thought from a public point of view, displayed in this way, was capable of being considered to be indecent was found to be decent, and the photograph of the lady with the drape which one might have thought from a public point of view to be decent, was found to be indecent. The Appellants are naturally aggrieved by this informal procedure which appears to have been adopted, and by the determination of matters with which they were not charged.

9. The appeal comes before me by virtue of S.30 of the Ordinance which says any party to any proceeding may appeal on a point of law, and Mr. Lee has pointed out, and I fully accept, that it is not open to me to rehear the matter, nor to interfere with any findings of fact.

10. In my judgment, this method of informal referral was unlawful. It is the statutory duty of the trial magistrate to refer and not that of the prosecuting officer.

11. This is important because in the Tribunal's determination under S.10(1)(b) it must have regard to "the dominant effect ... of matter as a whole". The dominant effect, in my view, of the whole signboard was an advertisement for "Happy Hour" and the pictures were incidental to that. Further, by virtue of S.10(1)(d) the Tribunal must have regard to ".... the location where the matter is publicly displayed and the persons or class of persons, or age groups likely to view such matter". If only these two pictures are looked at, then the Tribunal would not realise that this was a 'Happy Hour' signboard aimed at adults, not school children, who were in Hankow Road, with its garish neon signs, late at night. (The signboard was placed outside at 11 p.m.). Not only was the referral unlawful, but the Tribunal has prevented itself from acting lawfully within S.10, as by only looking at the two photographs, sub-sections (1)(b) and (1)(d) are rendered worthless. In viewing a video of some length this Tribunal can still find it indecent or obscene if the offending portion is very short, but in a prosecution under s.23 the public display of matter is the whole matter publicly displayed, otherwise the provisions of S.10(1),(c) & (d), are otiose.

12. Mr. Lee as I have said, has submitted that the consideration of indecency is entrusted to the Tribunal and not to the Court. I should, however, point out that the Court does have power to supervise inferior courts by means of judicial review and if it transpired that a finding is perverse or that there has been some material irregularity, judicial review would go. It does seem somewhat unusual and I put it no higher, that persons who have lawfully run a bar in Hong Kong, and have displayed this board for 20 years now find themselves facing such a serious charge.

13. Judges, like other persons, do not walk around Hong Kong with their eyes shut and one would have thought that the general public is exposed in parts of Hong Kong to matters of far greater indecency when apparently nothing is done, but this seemingly innocuous board displayed late at night in Hankow Road is thought worthy of police intervention and substantial public judicial time. However, the police must of course do their duty. All I am concerned with are questions of law, and in my judgment, not only has the referral been unlawful but the Tribunal's decision is flawed, as they have not come to a correct determination in law. By virtue of S.31 I, therefore, order the Tribunal to re-hear the proceedings. If the police wish to bring a different prosecution then of course that is a matter essentially for them. This appeal is allowed with that order. The Appellants do have the costs of this appeal, to be taxed if not agreed.