Loui Wai Po and Ming Pao Holding Ltd, Ex Parte

CACV000049/1994

HEADNOTE

Control of Obscene and Indecent Article Ordinance Cap. 390. Photograph classified obscene. Held Tribunal was wrong to consider the photograph in isolation as it was required by the Ordinance to examine it in the context of the text which it illustrated.

IN THE COURT OF APPEAL

1994, No. 49
(Civil)

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Coram: Hon Power, Ag. C.J., Penlington and Godfrey, JJ.A.

Date of hearing: 18 October 1994

Date of judgment: 18 October 1994

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J U D G M E N T

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Power, Ag C.J.:

1. On 10 January 1993 the Ming Pao Weekly Magazine published, inter alia, an article herewith "Detailed Analysis of the Current Four Interesting Persons". It was illustrated with 4 Photographs, one of which was a nude pose by the singer Madonna, which was captioned "the daring style of Madonna."

2. This photo and its caption were submitted on 20 January by the Television Entertainment and Licensing Authority to the Obscene Articles Tribunal for classification under Part III of the Control of Obscene and Indecent Articles Ordinance Cap. 390. The Tribunal may reject the application if it considers that it would be unable to adequately describe the article for the purposes of a notice under s.19 of the Ordinance. If it does not so reject the application it may classify it as: (a) neither indecent or obscene, (b) indecent, or (c) obscene. On 21 January 1993 the Tribunal held in an Interim Classification that the "article" was obscene. Section 14 of the Ordinance requires such classification must be made within 5 days of submission. By s.19 the Registrar of the Supreme Court is required to give notice of the classification in an English and Chinese newspaper. Section 15(1) sets out that within 5 days of the interim notice "taking effect" any party may by written notice require a full hearing.

3. Section 15(5) states that if no such hearing is required the interim classification is deemed to be the classification of the Tribunal. No notice requiring a hearing was given and on 20 February a Notice of Classification was published in the Hong Kong Standard. Mr Louis Pao, the publisher of the magazine, in his affidavit says that it is not surprising that no notice requiring a full hearing was given as he had no knowledge of the classification until 14 April 1993 when he was approached by the police.

4. On 4 May 1993 an information was laid against Mr Pao and the magazine alleging an offence under s.24 of the Ordinance. This section reads:

"No person may publish an indecent article unless there is clearly and conspicuously displayed on that article or on a wrapper enclosing that article, a notice of the following terms-

WARNING:

THIS ARTICLE CONTAINS MATERIAL WHICH MAY OFFEND AND MAY NOT BE DISTRIBUTED, CIRCULATED SOLD, HIRED, GIVEN, LENT, SHOWN, PLAYED OR PROJECTED TO A PERSON UNDER THE AGE OF 18 YEARS."

5. It is pertinent in this regard to note the contents of s.29(2). This section deals with the procedure that must be followed when such a prosecution has been lodged. Ss.(2) states:

"Where in a civil or criminal proceedings before a court or magistrate a question arises as to any of the matters mentioned in subsection (1), that court or magistrate shall refer that question to a Tribunal and the parties to those civil or criminal proceedings and in the case of proceedings to which a public officer is not a party, the Attorney General or their representatives, may appear and be heard at any hearing of that Tribunal relating to that reference."

6. This section makes it clear that where there is an allegation in proceedings that an article is obscene or indecent, the matter must be referred to and determined by the Tribunal.

7. On 20 June 1993 Mr Pao and the Ming Pao Holdings, the owner of the magazine filed a notice of application for judicial review asking for a declaration that the interim ruling of the tribunal not take effect because notice of the interim ruling, that is the interim classification, was not duly served.

8. The applicants also sought a declaration that various sections of the Ordinance were inconsistent with the Bill of Rights Ordinance and an order staying the criminal proceedings.

9. The grounds upon which this application was based were amended to rely upon the decision in the Obscene Articles Tribunal and the Attorney General v. Freeman Holding Ltd. This unreported decision was decided on 10 December 1993 which is some time after the present proceedings were initiated. This decision held that a single frame in a series of frames in a comic strip was not an "article". The amended ground argued before us alleged an excess of jurisdiction by the Tribunal in so far as it dealt with the photo as an "article" and did not consider it in the context of the material of which it formed part. It was the submission of the appellant that, under the Ordinance, it was this material and not the photograph alone which constituted the article.

10. Mayo J on 20 January 1994 having heard the application held that the photo did constitute an article under the Ordinance and that there was no infringement of the Bill of Rights and that the interim stay that had been ordered in relation to the criminal proceedings should be lifted. The appellant represented today before us by Mr Neoh, QC, with him Mr Chan, now appeals against that decision.

11. In the outcome I need deal only with the first of the matters argued by Mr Neoh in which he placed reliance upon the decision in Freeman's case. He submits in short that the Tribunal exceeded its jurisdiction when it dealt with the photo as an article.

12. Section 10(1)(b) provides:

"(1) In determining whether an article is obscene or indecent or whether any matter publicly displayed is indecent, or in classifying an article, a Tribunal shall have regard to -

(b) the dormant effect of an article or matter as a whole."

13. Having referred to that section Macdougall V.-P. delivering the judgment of the court in Freeman's case said:

"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 objectionable 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 instalment in a series of instalments in a story that appears in the comic book. It is the discrete story or instalment 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."

14. The learned judge goes on to say:

"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 purposes of the Ordinance."

15. I am satisfied that the Ordinance, in accord with both justice and commonsense, requires the Tribunal to examine a photograph illustrating a text in the light of that text and that such a photograph standing alone does not constitute an article in accordance with the meaning of that term as used in the Ordinance.

16. I reject the argument of Mr Chan who appears for the respondent, in which he sought to distinguish Freeman's case upon that basis that a photo was quite different from a single comic frame and that it should be regarded as a poster or picture on a calendar. I am satisfied that it was never intended by the Ordinance that photographs which are incorporated in and illustrative of a text should be so considered.

17. The appeal must succeed on that ground.

18. Mr Neoh also argued that because of Rule 7(2) of the Control of Obscene and Indecent Articles Rules an interim classification did not despite the express wording of s.15(5) become final until notice was served by post as required by Rule 7(2). That subrule reads:

"The Registrar shall, as soon as practicable after a classification or determination of a Tribunal, serve by post on each party to the proceedings to which the classification or determination relates a notice in writing stating that classification or determination."

19. It is not necessary for us to rule upon that submission. I remark only that I am by no means persuaded that the express terms of s.15(5) are in any way limited by the words in Rule 7.

20. We are further satisfied that Mayo J was quite right to lift the stay upon the criminal proceedings. Our decision in no way inhibits the prosecution in those proceedings. That prosecution does not in any way depend upon there having been a prior classification. The issue of obscenity which those proceedings addresses will have to be referred to and dealt with by the Tribunal pursuant to s.29 of the Ordinance.

Penlington, J.A.:

21. I agree and have nothing to add.

Godfrey, J.A.:

22. I agree that this appeal must be allowed, but out of respect for the judge below, from whom we are differing, I propose to state my own reasons for doing so.

23. The preamble to the Control of Obscene and Indecent Articles Ordinance, Cap. 390 makes it clear that the purpose of the Ordinance is:

"To control articles which consist of or contain material that is obscene or indecent."

S.2(1) provides that for the proposes of the Ordinance:

"article' means anything consisting of or containing material to be read or looked at ....."

24. In s. 13 of the Ordinance, one finds a provision for the submission of an "article" to the Registrar for classification by the Tribunal established by the Ordinance. That provision has to be read as a provision for submission of the whole article, as this court made clear in the Freeman Holdings case, Civil Appeal 150 of 1993, 10 December 1993 (unreported). What was submitted here was part only of the article, the article being the story, or piece, in which the offending photograph of Madonna was featured, and in entertaining the submission the Tribunal fell into error. It should have been asked to consider, and should have considered, not just the photograph but the article as a whole.

25. I am confirmed in this conclusion by the provisions of s. 10(1), to which my Lord, the Acting Chief Justice, has already referred; first, by the reference in s.10(1)(b) to "the dominant effect of an article or of matter as a whole;" and secondly, by the reference in s. 10(1)(e) to "whether the article or matter has an honest purpose or whether its content is merely camouflage designed to render acceptable any part of it."

26. It is clear from these provisions that the legislature expressly contemplated articles part of which might, standing on their own, have been considered obscene or indecent but would not fall to be so considered when read or taken in their context. To deprive a publisher of the possible benefit of that context by entertaining a submission of part only of an article appears to me to be both illegal and a disguised threat to freedom of speech and expression.

27. But, in the present case, there is matter for concern going beyond even that. There is here a criminal prosecution with which, as my Lord, the Acting Chief Justice, has said, we, in this court, have nothing to do. However, it was pointed out to us that, under s.33 of the Ordinance, once an article has been classified as obscene or indecent and that fact is certified, the certificate is to be treated as conclusive evidence of the facts contained in it.

28. I hope this attempt to classify this photograph as indecent was not aimed at putting before the Magistrate something which would pre-empt or prejudge in any way the point at issue in the criminal proceedings. No such classification is necessary for such proceedings, which have been brought under s. 24 of the Ordinance. S. 24 simply provides:

"(1) No person may publish an indecent article unless there is clearly and conspicuously displayed on that article or on a wrapper enclosing that article, a notice in [a certain] form."

29. It seems to me extraordinary that this procedure of classification was invoked for a one-off publication of a photograph in a weekly magazine. The provisions of the Ordinance for submission of articles to the Tribunal are intended to cover cases where the article or matter is to be on permanent or semi-permanent display or where the publication is likely to be repeated. They are not in the least apposite to deal with the sort of situation which arose here. hope it was not the case, but if this submission for classification was made for the purpose of influencing the result of the prospective criminal proceedings, then it was an illegitimate exercise of power for an ulterior or collateral motive and the classification would fall to be struck down on this ground as well.

30. For the reasons I have endeavoured to state, I agree, as I have already said, that the appeal must be allowed.

Power, Ag. C.J.:

31. The appeal is allowed and the decision of the Tribunal is quashed. The appellants are to have their costs here and before Mayo J.

Representation:

Mr Anthony Neoh, QC leading Mr Johannas Chan instructed by M/s Johnson Stokes & Master for the Appellants

Mr Alain Sham, Assistant Crown Solicitor, for Respondent