In Re Under S.13(2) of the Control of Obscene and Indecent Articles Ordinance, Cap.390

HCMP003464/1992

1992, No MP 3464

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

APPELLATE JURISDICTION

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Coram : Mortimer J.

Date of judgment : 3 August 1993

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J U D G M E N T

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The Application

1. The applicant is the publisher of a comic series, entitled in Chinese "Desperado Lawyer". The right hand half portion of page 13 of issue 24 is the subject of this application.

2. This half-page was submitted to the Obscene Articles Tribunal under s.13(2) of the Control of Obscene and Indecent Articles Ordinance, Cap.390 by the Commissioner for Television and Entertainment Licensing for interim classification under s.14(1)(a) on 18 February 1992. On 20 February the Tribunal made an interim classification of the said 'half-portion of page 13' as Class III. On review the Tribunal confirmed the classification on 31 March 1992.

3. Thereafter there was considerable delay which could have been fatal to the application, however the parties were agreed that this point is of importance and ought to be decided. The application proceeded with my assent and the consent of the parties. There is a chronology before me.

4. Leave to apply for Judicial Review was granted by Liu J. on 27 November 1992.

5. The applicant seeks to quash the interim classification; he seeks a declaration that the Tribunal had no jurisdiction to classify the half-page under either s.8(2) (b) or s.14(1)(a) of the Ordinance; and declarations against the Commissioner that he acted 'ultra vires' in submitting the half-page for classification.

The Grounds

6. The grounds upon which this relief is sought are simply that the 'half-page' or frame which was submitted and adjudicated upon was not an 'article' within the meaning of sections 2, 8(2)(b), 13(2), 14, 15 and 17 of the Ordinance. It is therefore contended that the Tribunal was in error in deciding to the contrary and acted in excess of its jurisdiction.

7. Secondly, it is submitted that the Commissioner acted in excess of his powers in submitting the 'half-page'.

8. Thirdly, it is said that the Tribunal erred in failing to take into consideration the dominant effect of the whole book (issue 24) and considered just the half-page contrary to s.10(1)(b) of the Ordinance.

The Ordinance

9. The power to submit 'articles' to the Tribunal is provided by s.13 which reads:

"(1) The author, printer, manufacturer, publisher, importer, distributor or owner of the copyright of any article or any person who commissions the design, production or publication of any article, may, by application in the prescribed form, submit that article to the Registrar for classification by a Tribunal.

(2) The Attorney General and any public officer authorised in that regard by the Chief Secretary may, by application in the prescribed form, submit any article to the Registrar for classification by a Tribunal."

Section 14 provides for interim classification of 'an article'. Section 15 provides for a review of an interim classification of 'an article' at a full hearing, and section 17(1) provides for the Tribunal to review the classification of 'the article'.

10. Section 10 lays down the matters which the Tribunal has to consider in reaching its decision. The relevant provisions are:

"10 (1) ... in classifying an article, a Tribunal shall have regard to -

...

(b) the dominant effect of an article ... 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.

....

(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.

(2) The opinion of an expert as to any of the matters to which a Tribunal must or may have regard under subsection (1) may be admitted in any proceedings before a Tribunal either to establish or negative that matter."

11. Section 2 defines 'Article' as follows:

" 'article' means any thing consisting of or containing material to be read or looked at or both read and looked at, any sound recording, and any film, video-tape, disc or other record of a picture or pictures"

Submissions

12. In summary Mr C.K. Wong for the applicant submits that 'article' as defined in s.2 of the Ordinance when read in the context of the rest of the Ordinance must be interpreted more widely than to encompass simply a half-page illustration of issue 24. He contends that both the word 'article' and the word 'thing' bear widely different meanings in different contexts and that the narrow literal meaning attributed by the Tribunal not only leads to absurdity (he gives examples) but would be contrary to the clear intention of section 10(1)(b) which enjoins the Tribunal to consider the "dominant effect" of an article "as a whole". Further, Mr Wong says in support that the language permits of more than one interpretation and the Court must "take that most in accordance with the spirit of the Act" Garney v Harris [1852] 19 TLR 94 per Lord Pollock C.B.

13. For the Respondent Mr Fitzpatrick contends for the Tribunal's interpretation saying that the words are plain, that they do not permit of an alternative meaning and that the decision of the Tribunal accords with this plain meaning. He says that both greater and lesser are capable of being 'articles'; that the 'frame' can be adequately described under s.8(2) (a); that there is no reason to suppose that s.10(1) (b) has not been complied with (i.e. the dominant purpose of the "frame") and that the publisher may, if it wishes, seek to show a defence under this latter section, or of public good under s.28.

14. Finally he submits that it would be absurd if the Tribunal had to consider the whole magazine - i.e. issues 1-24.

The Conclusion

15. In my judgment the narrow interpretation applied by the Tribunal is wrong and leads to an interpretation which is contrary to the spirit or scheme of the Ordinance and which may result in absurdity. I do not underestimate the difficulty of defining such indefinite language but in order not to do violence to the obvious purpose of s.10(1) (b) 'article' as defined in section 2 must mean a thing which is complete in itself having regard to all the circumstances. It would be unwise to define the circumstances which ought to be considered but they will include the way in which the thing complained of is published and sold, the form in which it comes into the possession of ordinary members of the public and its context.

16. I agree with Mr Wong that it would be absurd for one frame of a film, or one illustration - or even part of an illustration - in a medical textbook, or one sentence in a novel or short story to be 'an article' in this legislation. If it were so it would involve a serious curtailment of the freedom of speech. It would not achieve justice in accordance with the Ordinance and would not bear the meaning which the whole context of the Ordinance demands.

17. The decision whether anything complained of is 'an article' within the meaning of s.2 is a question of fact for the Tribunal. In all the circumstances the decision that this 'half-page' was 'an article' was clearly wrong and cannot be supported. In parenthesis I would add for clarity that if the 'half-page' illustration had been published and sold on its own so that the circumstances were different it would have been open to a Tribunal to find that it was 'an article'.

18. In my discretion accordingly I order by way of certiorari that the decision of the Tribunal be removed into the High Court and I quash the Interim Classification dated 20 February 1992.

19. I decline to grant the declarations applied for as they are unnecessary in the light of the relief I have given.

20. I order nisi that the applicant shall have his costs of the application.

Representation:

Mr S.K. Wong, instructed by M/s Norman Yung & Co for Applicant

Mr David Kitzpatrick on fiat for Crown/Respondent