Oriental Daily Publisher Ltd. v. Commissioner for Television and Entertainment Licensing Authority

IN THE COURT OF APPEAL

No. 66 of 1997
(Civil)

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Coram: Hon Chan, Chief Judge, Wong and Pang, JJ.

Date of hearing: 2 September 1997

Date of handing down of judgment: 28 October 1997

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J U D G M E N T

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Hon. Chan, CJHC :

1. I invite Wong J. to deliver judgment first.

Wong, J.:

2. The Oriental Daily Publisher Limited (the Appellant) is the publisher of the Oriental Daily News, a leading Chinese newspaper in Hong Kong. On 29th June 1996, the newspaper published a feature article at page A3 and on 30th June 1996 it also published two feature articles at page A17. All the feature articles depict photographs of naked female bodies in different postures with some words in Chinese by way of explanation.

3. In respect of these articles, the Appellant was summoned before a magistrate in two summonses for publishing indecent articles without cover or packaging and without the prescribed warning to which the Appellant pleaded not guilty. The articles were submitted to the Obscene Articles Tribunal for classification under s.29(2) of the Control of Obscene and Indecent Articles Ordinance. On 25th November 1996, the Tribunal, consisting of the presiding magistrate and two adjudicators, classified the articles as indecent. The decision of the Tribunal reads:-

"The Tribunal has considered all the submissions advanced by Defence Counsel and has directed itself to section 2(2)(b) and section 10(1) of Cap. 390. This Tribunal has also reminded itself that the standard to be adopted by it is the standard followed in criminal cases, namely, 'proof beyond reasonable doubt'.

This Tribunal unanimously determined that all the articles in the present two cases are indecent articles because:-

(1) each and every photograph in these two cases violates and exceeds the standard of morality, decency and propriety that are generally accepted by reasonable members of the community;

(2) the dominant effect of each and every photograph as a whole in these two cases is indecent;

(3) by reason of indecency each and every photograph is not suitable to be published to a juvenile."

4. Against this decision, the Appellant appealed to the then High Court and the appeal was heard and dismissed by Yeung J on 3rd March 1997. Hence, the appeal before this Court.

5. Effectively, there is only one ground of appeal before us and that is whether the Tribunal is under a duty to give reasons for its decisions. If it is not under such a duty, it follows that the appeal must be dismissed. On the other hand, should this Court decide that the Tribunal is obliged to give reasons, are the reasons given by the Tribunal, if they are to be accepted as reasons, adequate ? Mr. McCoy SC submits that not only the Tribunal is under a duty to give reasons, it must also give adequate reasons. He says that the Tribunal has failed to give any reasons and what is set out in the decision are conclusions and not reasons. It only reiterates the statutory criteria which is totally unhelpful and confounds law-abiding members of the public and the publishing world. He prays in aid s.14(3) of the Ordinance which 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."

6. Therefore, he submits that there is an implied duty on the Tribunal to give reasons for the final classification where there is a defended hearing. In support of his contentions, he relies heavily on the decision of Findlay J in Eastern Publisher Ltd v the Obscene Articles Tribunal [1995] 3 HKC where he said at p.150:-

"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 hearing. 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 the 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.

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."

7. The first issue which falls to be decided is this. Is the Tribunal under a duty to give reasons for its decisions ? I start with the broad principle that there is no obligation imposed on tribunals to give reasons at common law. But this principle must be subject to qualification in the light of judicial decisions and subsequent development of the law. Thus, in R. v. Home Secretary, Ex parte Doody [1994] 1 AC 531, Lord Mustill made these observations at p.564:-

"I accept without hesitation, and mention it only to avoid misunderstanding that the law does not at present recognise a general duty to give reasons for an administrative decision. Nevertheless, it is equally beyond question that such a duty may in appropriate circumstances be implied, and I agree with the analyses by the Court of Appeal in Reg. v Civil Service Appeal Board, Ex parte Cunningham [1991] 4 All E.R. 310 of the factors which will often be material to such an application."

8. In that case, the House of Lords held that the Home Secretary was required to inform prisoners serving mandatory life sentences of the periods recommended by the judiciary and to give them an opportunity to make representations before he determined the period. R. v. Civil Service Appeal Board concerns the dismissal from the prison service of a 45-year-old prison officer for allegedly assaulting a prisoner. He appealed against his dismissal to the Civil Service Appeal Board, which held that his dismissal was unfair and recommended that he be reinstated. The Home Office, as it was entitled to do, refused to reinstate him and the board then assessed the compensation for unfair dismissal at 6,500.00. The board refused to give reasons for its award and the applicant applied for judicial review of the board's decision on the grounds that the award was prima facie irrational and the board's refusal to give reasons was a breach of natural justice. It was held by the Court of Appeal that the Civil Service Appeal Board carried out a judicial function similar to an industrial tribunal and was required to give reasons for the way in which it had reached the award. In his judgment at p.322, McCowan L.J. said:-

"As Mr. Pannic says, it cries out for some explanation from the board. As I would put it, not only is justice not seen to have been done but there is no way, in the absence of reasons from the board, in which it can be judged whether in fact it has been done. I find that a thoroughly unsatisfactory situation, in which this court should hold, if it can properly do so, that the board ought to give reasons for its recommendations."

Regina v City of London Corporation, Ex parte Matson [1997] 1 WLR 765 is another decision in favour of giving reasons. Matson was elected as an alderman of the City of London by the voters of a ward but his election was subject to confirmation by the Court of Aldermen. After an interview, he was informed, without any reasons, that the court was unable to confirm him and he applied for judicial review. It was held by the Court of Appeal, allowing the appeal, that despite the absence of a general duty to give reasons for administrative decisions, the nature or circumstances of an adjudication might indicate a necessity for giving reasons. The matter was remitted to the Court of Aldermen with a direction to reach a reasoned decision.

9. On a careful analysis and consideration of the authorities and the facts and circumstances of the present case, I reach the conclusion that the Tribunal is under a duty to give reasons for its decisions.

10. This brings me to the next issue and that is whether the Tribunal is also under a duty to give adequate reasons. What are to be regarded as adequate reasons depends, in my view, very much on the particular facts of each case. In this connection, I find it most helpful and relevant the decision of the Court of Appeal in Lau Tak-pui v Immigration Tribunal [1992] 1 HKLR 374. The headnote reads:-

"Removal orders in respect of the 3 applicants were made by the Deputy Director of Immigration pursuant to s.19 of the Immigration Ordinance. On appeal to the Immigration Tribunal, the tribunal found that the applicants had not been born in Hong Kong and dismissed the appeals from the removal orders. Upon application to the High Court for judicial review of the tribunal's decisions, the decisions were quashed on the basis that the tribunal failed adequately to set out the findings of fact on which the decisions had been based."

11. The reasons given for the determination of the Tribunal in relation to the applicants Lau Tak-Pui and Lau Tak-mui were these:-

"After careful consideration of evidence given by all parties concerned and by the witnesses presented, the Tribunal has come to the conclusion that the Appellants have not discharged the burden of proof that they were born in Hong Kong and therefore do not enjoy the right of abode in Hong Kong under s.2A of the Immigration Ordinance.

The appeal is dismissed."

In his judgment at p.380, Kempster J. A. referred to two short passages of the judgments in R. v. Civil Service Appeal Board. At p.323, McCown L.J. said:-

"... I see no reason why the board need take more than a few sentences to state those reasons."

And at p.326, Legatt, L.J. made similar observations:-

"In my judgment the duty to act fairly in this case extends to an obligation to give reasons. Nothing more onerous is demanded of the Board than a concise statement of the means by which they arrived at the figure awarded."

Continuing his judgment, Kempster J. A. said at p.381:-

"Turning then to the adequacy of the reasons given in the respective appeals they show that the only issue which, by reason of s.2(1), 2A and Schedule 1 para.2 of the Ordinance and of para. 2(1)(a) of the Hong Kong (British Nationality) Order 1986 (No.948 of 1986), fell for their determination, namely the appellant's places of birth, had been addressed and, by necessary implication, that all the evidence germane to that issue had been considered. The conclusion that the applicants had not been born in Hong Kong was the basis of fact upon which the Tribunal determined that they did not enjoy a right of abode in the Colony. The requirements stipulated by the Full Court in re Chan Kum-chuen, being a statement of the grounds for the findings, and of natural justice, being at least as stringent as any which may derive from the terms of s.53D, were met; in the reasons relating to Yam Lai-san amply so. It is not suggested that either determination was aberrant on its face. No more is there evidence before us to show that either determination amounted to a "ritual incantation". As Sir John Donaldson, M.R. said in R v Home Secretary, ex-parte Swati [1986] 1 WLR 477 at p.483:-

'... it is to be expected that the same reasons will underly the refusals in a number of cases and, if that occurs, I do not understand why the reasons should not be described in the same words in each such case.' "

12. Applying the principles enunciated in these authorities to this case, can it be said that what is stated by the Tribunal in its decision can be considered to be reasons and if so, are they adequate reasons. In the first place, the Tribunal considered the submissions of Defence Counsel and directed itself to s.2(2) (b) and s.10(1) of the Ordinance. It also reminded itself that the standard of proof was to be proof beyond reasonable doubt. It then went on to make the finding that the articles were indecent. Having made that finding, the Tribunal explained why the articles were indecent. They were indecent because the photographs violated and exceeded the standard of morality, decency and propriety that are generally accepted by reasonable members of the community; the dominant effect of the photographs as a whole was indecent and because they were indecent they were not suitable to be published to a juvenile. These were reasons in support of the conclusion of the Tribunal that the articles are indecent as Yeung J correctly observed. In his judgment at p.9, Yeung J said:-

"I accept that if certain articles, on their face, cannot be indecent and they are only rendered indecent because of some underlying factors, some innuendo or some punch-line which require explanation, then the Tribunal should set out such explanation in details to justify the conclusion that those articles are indecent.

But we are not dealing with such articles. The articles in question are just naked bodies of man and women appearing on newspapers."

At the bottom of the page, he continued:-

"Whether an article of naked bodies is indecent or otherwise is an extremely abstract matter. The exposure of certain parts of a woman's body or the like may be indecent in some circumstances but not in other circumstances. It is an impression formed by the Tribunal having taken into consideration the entire circumstances of the case of applying the standard of morality, decency and propriety that are generally accepted by reasonable members of the community that they represent."

13. I agree with the views expressed by the judge. For my part, I am satisfied that the reasons given by the Tribunal are adequate to meet the circumstances of the case. The appeal is dismissed.

14. Mr. McCoy invites this Court to give some guidelines on what is obscene and what is indecent. I must decline his invitation, which is misconceived. I can understand the anxiety of those whom he represents and has represented. Section 29 of the Ordinance makes it perfectly clear that the Tribunal shall have exclusive jurisdiction to determine whether any article is obscene or indecent and s.30 restricts the right of a party to any proceedings to appeal to the High Court against a decision of the Tribunal on a point of law only. It is for the Tribunal, not us, to decide what is obscene or indecent. This Court only interferes when the Tribunal commits errors of law. Quite apart from factual situations which may vary from case to case, it does not seem that this Court has jurisdiction to prescribe standard and lay down conditions. Publishers, editors, writers and other persons who are likely to be affected will have to apply their common sense, experience and good taste but they are well advised to submit any article for classification under Part III of the Ordinance before publication if they are in doubt that the article may be obscene or indecent.

15. There would be an order nisi for costs of this appeal in favour of the Respondent.

Hon. Chan, CJHC:

16. I too would dismiss the appeal for the reasons given by Wong J.

Duty to give reasons

17. There is no common law rule which requires reasons to be given by an administrative tribunal or even a court of law for its decisions. (R. v. Home Secretary, ex parte Doody, [1994] 1 AC 531) This, however, is not conducive to the good administration of justice. If a party does not know the reasons for the decision against him, he may not be in a position to decide whether to appeal or to seek a judicial review. It may not be easy to convince him that justice is not only done but also seen to be done. Without knowing the reasons for the decision, the appellate court or the court hearing the judicial review may find it difficult to assess whether the decision is right or wrong. As Leggatt L.J. said in R. v. Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310 at page 325:

"Without an obligation to give reasons the board's procedures cannot be checked, let alone challenged; and without reasons neither the person dismissed nor the court can tell whether to apply for or to grant judicial review."

Neill L.J. also remarked in R. v. City of London Corporation, ex parte Matson [1997] 1 WLR 765 at page 776 :

"... that fairness and natural justice require that this decision should not be allowed to go unexplained."

18. Where in appropriate cases, it is considered desirable or even necessary to know the reasons for a decision, the courts have readily implied a duty in the administrative tribunal or the lower court to give reasons for its decisions. The nature and circumstances of the adjudication may indicate a necessity for giving reasons : see R. v. Civil Service Appeal Board, ex parte Cunningham, R. v. City of London Corporation, ex parte Matson and R. v. Home Secretary Ex parte Doody, supra.

19. There is also a growing tendency to make express provisions in legislation creating administrative tribunals requiring the relevant tribunal to give reasons for its decisions. In the absence of an express provision, it is a matter of construction of the relevant statute to see whether such a duty can be implied. But the courts are more ready nowadays to imply that such a duty exists. It will instil greater public confidence in our system if those who are in a position to make decisions affecting others would give reasons for their decisions.

20. In Hong Kong, there have been quite a number of judicial pronouncements imposing a duty on certain administrative tribunals to give reasons for their decisions or determination. See Cheung Cheong v. Attorney General [1987] HKLR 356, In the matter of an application by Tse Chuk Fuk, M.P. No. 537 of 2997 ( unreported), In re Sit, Woo, Tung [1900] 2 HKLR 410 and Lau Tak Pui and Others v. Immigration Tribunal [1992] 1 HKLR 374. It can be seen that our courts are equally ready in appropriate cases to hold that the provisions of the ordinances governing certain tribunals imply that the relevant tribunal "is obliged to set out for the benefit of an appellant the facts which it finds and upon which it bases its determination" (per Kempster J.A. in Lau Tak Pui and Others v. Immigration Tribunal at page 378). Sir Derek Cons V.P. in the same case also agreed that:

"... the fact that the Tribunal acts judicially, whatever may be the difficulties in defining precisely that concept, and that the rights in question are of vital importance in modern society, make it a special case, such that the Tribunal should give adequate reasons for the decisions to which it has come."

21. There is no express provision in the Control of Obscene and Indecent Articles Ordinance, Cap.390 requiring the Obscene Articles Tribunal ("the Tribunal") to give reasons for its decisions. Section 14(3) provides:

"14(3) Subject to section 7(3), a Tribunal -

(a) shall not be required to give any reasons for any interim classification;

(b) may give guidance to the applicant in relation to the article submitted; and

(c) shall identify the part of the article which causes the obscenity or indecency."

22. It has been argued that this section can be construed as implying that the Tribunal is under a duty to give reasons for a final classification. There is some force in this argument, but one must be careful not to jump to any ready conclusion.

23. While the Tribunal is not required under s. 14 (3)(a) to give reasons for its interim classification, there are good reasons for requiring the Tribunal to give its reasons for its final classification after a review at a full hearing. First, the parties have made representations to the Tribunal and have a legitimate expectation that the Tribunal would give a reasoned decision. Secondly, there are restrictions on the publication of an article which has been classified as either obscene or indecent under the provisions of Part V. The party affected by the classification has to comply with the restrictions if he wants to publish it unless he takes the matter to the appellate court . He needs to know whether he should comply or appeal. Thirdly, a person may appeal on a point of law against the decision of the Tribunal. Without knowing the reasons for a decision of the Tribunal, the Court of First Instance may find it difficult to decide whether there is in fact a point of law, and if there is, whether the Tribunal is correct on that point of law. It is not only desirable but necessary to know the reasons for a particular decision under appeal. Under these circumstances, it is only right to imply a duty to give reasons on the Tribunal when it makes a decision under section 15 at the review of an interim classification.

24. However, it is, in my view, an over simplification to say that it necessarily follows that the Tribunal is required to give reasons for its final determination.

25. There are two ways in which the Tribunal is asked to classify an article. First, under section 13 in Part III, certain parties, including an editor or a publisher of an article and the Attorney General (now Secretary of Justice), may submit it for an interim classification by the Tribunal under section 14. An interim classification is subject to a review under section15 or reconsideration under section 17. It is therefore acceptable that the Tribunal is not required to give any reason for the interim classification because the Tribunal can be asked to review it and the parties will have the chance to make submissions later. That is the thinking behind s. 14(3)(a) which must also be read in conjunction with the rest of that section empowering the Tribunal to give guidance and identify the part of the article which causes the obscenity and indecency.

26. The second way in which the Tribunal may be asked to make a determination is upon a referral by a magistrate (or a court) under section 29 in Part. This procedure is adopted in connection with a criminal case and is different from the procedure for an interim classification and any subsequent review or reconsideration under Part III.

27. The present case is a determination upon a referral under section 29. It is not a classification upon a submission under Part III section 13 and is of course different from a review under section 15. There is no express provision in section 29 or indeed in the whole of Part V requiring the Tribunal to give reasons for its determination. To this extent, it may be argued that in contrast to the provisions under Part III, a duty to give reasons for its decision may not be so readily implied under section 29 or Part V.

28. However, in my view, the same principles apply to both a final classification under s. 15 and a determination under s.29. While different provisions relate to the two different ways in which the Tribunal is asked to make a classification or determination, the result of the classification and determination would be similar. The party who submits the article for classification cannot publish or display the article as a result of an adverse classification without complying with certain restrictions whereas the defendant in a criminal case in which the article in question is referred to the Tribunal for determination is facing a pending criminal prosecution. As a matter of fact, if the Tribunal determines that the article is either indecent or obscene, this has a very important bearing on the criminal proceedings. In most cases, that would be the end of the case in that there is usually no defence in the light of such determination. The only redress is probably an appeal against the determination of the Tribunal before going back to the magistrate in the criminal proceedings.

29. Further, in the case of an determination by the Tribunal the parties are also entitled to make representation to the Tribunal before its determination. The parties are also entitled to appeal to the Court of First Instance on a point of law. Both the parties and the appellate court would be anxious to know the reasons for the determination.

30. In my view, there are even stronger reasons for requiring the Tribunal to give reasons for its determination under section 29. If such a duty can be implied in a case of a review by the Tribunal under Part III, I see no valid reasons for not doing so in relation to a determination under section 29.

31. I have also in mind the factors which were considered by McCowan.J. in R. v. Civil Service Appeal Board ex parte Cunningham at pages 322 and 323. Some of the factors are equally relevant to the present case. They include : (1) the Tribunal in making its decision is carrying out a judicial function; is presided by a magistrate who is a judicial officer and two members of a special panel and has heard representations and submissions from the parties; (2) the determination is subject to appeal but only on a point of law; (3) there is no statute which requires the court to tolerate any unfairness resulting from a refusal to give reasons for its determination; (4) the giving of short reasons would not frustrate the purpose of the determination and intention of the Ordinance; and (5) it is not a case where the giving of reasons would be harmful to the public interest. On the contrary, it would be in the public interest that the Tribunal should give reasons for its determination in a matter which would result in criminal liability.

32. For these reasons, I would agree that the Tribunal is under a duty to give reasons for its determination.

Adequacy of reasons

33. In my view, the sort of reasons to be given which may be considered as adequate depends on the circumstances of each case. Lord Donaldson M.R .in R. v. Civil Service Appeal Board ex parte Cunningham [1991] 4 All ER 310 (which is a case of judicial review) said at page 315 and 316 :

"How detailed that reply should be will depend upon the circumstances of the particular case."

"The principles of public law will require that those affected by decisions are given the reasons for those decisions in some cases, but not in others."

In the same case, McCowan L.J. said at page 323:

"I add only that I see no reason why the board need take more than a few simple sentences to state those reasons, ....."

Leggatt L.J. also said at page 326 :

"Nothing more onerous is demanded of the Board than a concise statement of the means by which they arrived at the figure awarded."

34. In Lau Tak Pui and others v. Immigration Tribunal, Kempster J.A. remarked at page 380 :

"These are special circumstances which ... require as a matter of fairness the provision of outline reasons showing to what issues the Tribunal has directed its mind and the evidence upon which it has based its conclusions."

(my emphases)

Sir Derek Cons V-P said at page 383 :

"All would therefore be bound to give reasons, except in those instances where, as Lord Lane observed in R. v. I.A.T., ex parte Khan [1983] 1 QB 790 at 794, the reasons are perfectly obvious"

35. It would seem from these authorities that depending on the circumstances, while fuller reasons would be required in some cases, only brief reasons would be adequate in others. In my view, this is particularly applicable to cases which involve abstract concepts or where the conclusion is obvious to any reasonable man.

36. As Mr. Bruce, S.C. for the respondent argues, the reasons required to be given by an administrative tribunal must be determined by the statutory context in which the decision is made and the purpose for which those reasons are required. The Tribunal is the sole arbiter as to whether an article is indecent or obscene. Indecency and obscenity are notoriously abstract concepts. They involve value judgments which are most of the time difficult to express. The Ordinance has already given very useful guidance in section 10. The guidance includes factors such as the standards of morality, decency and propriety that are generally accepted by reasonable members of the community (s. 10(1)(a)) and the dominant effect of the article or of the matter as a whole (s. 10(1)(b)).

37. It has been submitted that the Court or the Tribunal should set more detailed guidelines so that editors and publishers may be in a position to know what can be published in their newspapers or magazines. I do not agree. In my view, it would be wrong for the Court to set such guidelines since the Ordinance has left it entirely to the Tribunal to decide on matters of indecency and obscenity. It would also be wrong for the Tribunal to make such an attempt. First, standards of morality, decency and propriety may change from time to time. It would be inflexible or even dangerous to set any confines for such abstract concepts. Secondly, editors and publishers also have the obligation to uphold the reasonable and acceptable standards of morality of the community. They should be in a position as ordinary and reasonable members of the community to know what should be published and what should not. Thirdly, the Ordinance has already set some guidance for the Tribunal in terms of general principles. It is impossible to give any further detail because circumstances vary in every case. If guidelines are set too rigidly, they would be unduly harsh. If they are set too loosely, they would not be workable. In either case, such detailed guidelines would defeat the whole purpose of the exercise.

38. In many cases, whether a particular article is indecent or obscene would be quite obvious to an ordinary reasonable man. It is not necessary to explain in great detail why it is regarded as indecent or obscene. It would be totally unhelpful to set guidelines such as the percentage of the human body which is exposed, which part of the human body cannot be exposed or the particular parts which may need to be covered. Any such guidelines would even be open to abuse by people who have set their minds on publishing articles which any ordinary reasonable member of the community would regard as indecent or obscene.

39. There are of course articles which, as Yeung, J. said, cannot on the face of them be described as indecent or obscene and which are only rendered so because of some underlying factors, innuendoes or punch-lines. In such cases, if the Tribunal classifies the articles as indecent or obscene, it should set out an explanation to justify the conclusion it has reached. An example in hand is the case of the statue of David, Eastern Express Publisher Ltd. v. Obscene Articles Tribunal [1995] 3 HKC 145. In that case, contrary to the understanding of some members of the public, the article in question did not simply depict a picture of the famous statue by Michelangelo. The article showed a picture of the "modified version" of the statue of David (which had obviously been modified by computer technology) with his head tilted and looking downwards at the lower half of his body and a facial expression indicating surprise and shock. Next to the picture were the words "BIG DEAL some of our artists are shrunk by up to 70%". To describe the publication of a picture of the famous statue of David as indecent may be open to ridicule. But there might be a reason for regarding the picture of the modified version as published in that article together with those words as indecent. An explanation is therefore necessary. Whether the explanation is Wednesbury reasonable is another matter. Hence, it was perfectly proper in that case to call upon the Tribunal which classified the article as indecent to give reasons to support the decision and in the absence of sufficient reasons, an inference could be drawn that there was none.

40. In the present case, the conclusion that the articles in question are indecent is so overwhelmingly clear. I need only set out the descriptions of these articles to illustrate this.

41. The article which was published in the appellant newspaper on 29th June 1996 was entitled "Beautiful and sensuous like a picture". It depicted a photograph of the size of 3 1/2 " x 6" of the naked body of a woman showing her entire front side from the knees upward with some minor painting on her face and her left upper shoulder. There were some translucent squares at the nipples. The Chinese characters which were printed beside the photograph said : "Human body painting exhibition was performed on Friday at the Capital Seoul by a South Korean female model, splendid and pleasing to the eyes. This kind of open performance was the first time in South Korea."

42. In the issue published on 30th June 1996, there were two articles. The first one was entitled "Two naked pretty girls dancing". It had a photograph of the size of 5" x 7 1/2 ". It depicted two naked women dancing with their hands stretching outward and their bodies leaning forward. It only showed the upper bodies of the two women and they were completely naked except that the face and the upper chest of the woman in front was painted with some floral pattern. There was a line of Chinese characters underneath the photograph which said "In order to celebrate the formation of the Korea Naked Model Association, two naked models were performing to publicize in a hotel at Seoul on Friday".

43. The second article was entitled "In a record shop in Australia, free CD gift to naked customers". The article consisted of three photographs :

(1) the top photograph depicted the naked buttocks of three women lining up to go into a record shop. It was a photograph of the size of 2 1/2 " x 4". The Chinese characters which appeared under the photograph said "3 customers came out of admiration and shopped naked";

(2) the middle photograph (which was 3" x 5") depicted a man and a woman both completely naked showing the upper side profile of the man but the entire front body of the woman from her knees upwards. She was depicted as holding a CD in such a way as to cover her genitals. The Chinese characters consisted of only a little more than a line saying: "2 naked customers postured rather naturally and with ease before the reporters in the record shop"; and

(3) the third photograph (which was 4" x 3") depicted the side profile of the naked upper body of a woman selecting CD from the shelf. Under the photograph, the Chinese characters said: "A completely naked customer was looking for her favourite CD attentively as though no other people were around".

44. It must be noted that the Chinese characters underneath the photographs were to say the least quite small prints as compared with the size of the photographs.

45. The appellant is the publisher of a newspaper which has one of the largest circulations in Hong Kong. It is quite clear, by any standard, that any one of these photographs was meant and intended to be the object of reading and the small lines of Chinese characters were merely subsidiary. The dominant effect of each of these articles is clearly nudity - a deliberate and unncessary display of nudity under the pretext of reporting some news items. It would be ludicrous to require a reasonable person let alone a Tribunal to explain why these photographs printed on a widely circulated newspaper were classified as indecent. The photographs as published in these articles are obviously unacceptable according to the present standards of morality, decency and propriety that are generally accepted by reasonable members of our community.

46. The Tribunal had adopted the guidance as set out in section 10 of the Ordinance. It had reminded itself of the burden and standard of proof which are necessary for the determination. What more could the Tribunal say in classifying these photographs as indecent, except by setting out the descriptions as I have done above ? The photographs spoke for themselves. Faced with such set-up, it is only reasonable for the Tribunal to set out what they were required to do, their criteria for classification and the conclusion they reached. In the circumstances of this case, any ordinary reasonable person would have accepted those reasons given by the Tribunal as adequate.

47. For the above reasons, I can see absolutely no merit in this appeal which must be dismissed. I would also make an order nisi for costs against the appellant.

Hon. Pang, J. :

48. I agree with the judgments delivered by my Lords. I would also dismiss the appeal.

Representation:

Mr. McCoy, S.C. and Ms Corrina Tai instructed by Messrs. Simon Siu, Wong, Lam and Chan for the Appellant

Mr. A. A. Bruce, S.C. and Ms Lily Ho of Department of Justice for the Respondent