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

FACC000001/1998

FACC No. 1 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 1998 (CRIMINAL)

(ON APPEAL FROM CACV No. 66 OF 1997)

_____________________

Between:

_____________________

Court: Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr Justice Bokhary PJ and Sir Anthony Mason NPJ

Date of Hearing: 11 November 1998

Date of Judgment: 25 November 1998

___________________

J U D G M E N T

___________________

Chief Justice Li:

1. This appeal concerns the duty to give reasons. The Court of Appeal held that the Obscene Articles Tribunal ("the Tribunal") is under a duty to give reasons in deciding whether an article is obscene or indecent. This ruling accords with the trend in public law towards greater openness in decision making. It has not been challenged by the respondent and is no longer in issue.

2. Given that the Tribunal is under a duty to give reasons, the issue in this appeal is whether it properly discharged the duty in this case. The respondent argues that it has and was successful in the courts below. This is challenged by the appellant.

The Control of Obscene and Indecent Articles Ordinance, Cap. 390 ("the Ordinance")

3. The Ordinance, by controlling obscene and indecent articles, restricts the freedom of speech in the interest of the community as a whole.

4. I should first set out the statutory scheme.

5. The Tribunal is entrusted by the legislation with the power to decide what is obscene or indecent. For the purposes of the Ordinance, "a thing is obscene if by reason of obscenity it is not suitable to be published to any person and a thing is indecent if by reason of indecency it is not suitable to be published to a juvenile", that is persons under the age of 18. "Obscenity" and "indecency" include violence depravity and repulsiveness. See sections 2(2) and 2(3). The statute (Part IV) provides for criminal sanctions including offences for publishing obscene articles and publishing indecent articles to juveniles without the statutory safeguards such as covers, sealed opaque wrappers and warning notices.

6. In deciding the question of obscenity and indecency, section 10 obliges the Tribunal to have regard to certain matters. This section, which is important for this appeal, provides:

"... a Tribunal shall have regard to -

(a) standards of morality, decency and propriety that are generally accepted by reasonable members of the community, and in relation thereto may, in the case of an article, have regard to any decision of a censor under section 10 of the Film Censorship Ordinance (Cap. 392) in respect of a film within the meaning of section 2(1) of that Ordinance;

(b) the dominant effect of an article or of 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) in the case of matter publicly displayed, the location where the matter is or is to be publicly displayed and the persons or class of persons, or age groups of persons likely to view such matter; and

(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."

Expert opinion evidence is admissible in relation to any matter to which the Tribunal must or may have regard. See section 10(2).

7. The Tribunal's jurisdiction arises in two situations. First, articles may be submitted to the Tribunal for classification as to whether it is obscene, indecent or neither. See sections 8(2) and Part III. This in effect enables those concerned to obtain a prior ruling. The Tribunal may initially make an interim classification. At the applicant's request, the Tribunal would review this at a full hearing. This is a public hearing and notice has to be advertised in newspapers. See sections 15 and 16.

8. Secondly, where in any civil or criminal proceedings, a question arises as to whether an article is obscene or indecent, the judge or magistrate must refer it to the Tribunal which has exclusive jurisdiction. Similarly, questions as to whether any matter publicly displayed is indecent and whether the defence of public good is proved have to be referred to the Tribunal. See sections 8(1) and 29. That defence is provided for in section 28:

" It shall be a defence to a charge under this Part [IV] in respect of the publication of an article or the public display of matter if that publication or display, as the case may be, is found by a Tribunal to have been intended for the public good on the ground that such publication or display was in the interests of science, literature, art or learning, or any other object of general concern."

Expert opinion evidence is admissible in relation to such defence. See section 8(3).

9. The Tribunal consists of a presiding magistrate and two or more adjudicators selected from the panel of adjudicators appointed by the Chief Justice. Decisions are made by majority and in the event of equal division by the presiding magistrate. He shall decide any point of law. See section 7. The same privileges and immunities as those in court proceedings apply to the Tribunal. See section 9. When dealing with classification, it may determine its own procedure and has similar powers to a court to compel the attendance of witnesses and to examine them on oath. See section 11(b). When dealing with questions referred by a court, it has the same powers as a magistrate. See section 11(a).

10. There are two express provisions on the subject of reasons. First, section 7(3) provides:

" 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."

Secondly, section 14(3)(a) provides that subject to section 7(3), the Tribunal shall not be required to give any reasons for any interim classification.

11. There is a right of appeal against a decision on a point of law to the Court of First Instance. See section 30(1). Decisions of the Tribunal are of course subject to judicial review.

The articles in question

12. The appellant is the publisher of the Oriental Daily News ("the newspaper") a well known Chinese newspaper with a very wide circulation.

13. On 29 June 1996, it published a feature on page A3 of the newspaper. It was positioned at the bottom right and measured about 10 cm x 15 cm (4" x 6"), occupying about 7 % of the page. The page bore the heading "International News" and the rest of the page so consisted. The feature consisted of a photograph with a small strip of words on the side. The photograph was of a naked woman showing her body from the knees up. Her face and parts of her body were painted with patterns. Her breasts were exposed but the nipples had been obscured by opaque squares which had been applied by photographic technique. Her pubic area was covered by a long piece of material she was holding. The words beside the photograph in ordinary print read: "A human body painting exhibition was performed on Friday at the capital, Seoul by a South Korean female model, splendid and pleasing to the eye. This kind of open performance was the first time in South Korea". This was below the title in four Chinese characters in bigger print : "Beautiful and Sensuous Like a Picture"

14. On 30 June 1996 the newspaper published two features on page A17. That page bore the heading "Lifestyle Portrayals" and the rest of it consisted of such stories. The first feature was at the top half of the page and measured about 22 cm x 13 cm (9" x 5"), occupying just under 15 % of the page. It consisted of a photograph showing two women dancing with one in front of and close to the other with their hands stretching outward and their bodies leaning forward. It showed their naked upper bodies, with the faces of both women and the upper chest of the woman nearest to the camera painted with some patterns. The breasts of the woman in front were uncovered but the nipples had been obscured by applied opaque squares. The right breast of the woman behind her could be seen but not the nipple. At the top right hand corner of the photograph was the title in four Chinese characters : "Two naked pretty girls dancing". Beneath the photograph was a one line report in ordinary size print : "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."

15. The second feature was on the same page. This was at the right hand side extending from about the middle to the bottom of the page and measured about 30 cm x 10 cm (12" x 4"), occupying about 15% of the page. It had a title in the middle : "In a record shop in Australia a free CD to naked customers" with a short report next to it : "An annual naked shopping day was held on Saturday at a record shop in Melbourne, naked customers were given a free CD and had a chance of winning a free trip."

16. It had three photographs. The first one showed the exposed buttocks of two women and one of the breasts of a third women with the nipples obscured by an applied opaque square in the record shop. A fully dressed man and the head of a another man also appeared. Under it was this description : "Three customers came out of admiration and shopped naked."

17. Beneath the first photograph was a photograph which showed a naked man and woman. The man's upper body appeared in profile with him holding a cigar in his left hand. The woman's upper body was exposed from her knees upward but the CD disc she was holding hid her pubic area. The description under it read "Two naked customers postured rather naturally and with ease before the reporters in the record shop."

18. Below that photograph was the third photograph. This depicted the side profile of the upper part of a woman's body. She was looking at CDs on the shelf. Her left breast was shown with the nipple obscured by an applied opaque square. The description below it read "A completely naked customer was looking for her favourite CD attentively as if no other people were around."

19. In summary, the features in question consisted of photographs with relatively few words. These photographs show nudity of the female body with the nipples obscured by opaque squares which had been applied, and in the instances where the photographs covered the pubic area, it was hidden from view by objects held by the female. The features were of reports of events which took place in Korea and Australia.

The charges

20. As a result of informations laid by an officer of the respondent, the appellant was summoned to appear before the magistrate. The two summonses alleged offences of publishing indecent articles without the safeguards of cover or packaging or warning notice contrary to section 24.

21. The articles in question were in relation to one summons the feature on 29 June 1996 and in relation to the other summons, the two features on 30 June 1996 in the newspaper described above.

Reference to the Tribunal

22. Upon not guilty pleas, the magistrate referred the articles in question to the tribunal for determination as he was obliged to do under section 29.

The tribunal's determination

23. The Tribunal first heard submissions from counsel who apparently also appeared in the prosecution before the magistrate. He pointed out that the newspaper is accessible to the general public, that the photographs occupy quite a large portion of the page and indecent articles are required to have warning labels. He posed the question whether having regard to the articles and their dominant effect, they are suitable for publication to those under 18. He submitted that they were not.

24. Mr G McCoy SC appearing for the appellant then made submissions. He noted that the Tribunal must be sure beyond reasonable doubt. In summary, he made the following points. First, the nipples had been blocked out and the pubic area covered. Secondly, one could see things "much worse than this" by walking through the Mass Transit Railway and many newspapers in Hong Kong print photographs of partially naked people. Thirdly, the articles were reporting on some of the "crazy things" happening around the world and informed members of our community of the attitude of other cultures. Fourthly, the photographs were not on the front page or the children's page. They were in the adult section. Overall, he submitted one should not confuse bad taste with a criminal offence and that the articles were frivolous material and were not going to damage people. To these submissions, there was a brief reply.

25. After hearing submissions, the Tribunal determined the articles to be indecent.

26. Since the adequacy of its reasons is at the heart of this appeal, they should be quoted in full.

" REASONS FOR DECISION

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."

The Judge

27. The Judge (Yeung J) assumed that the Tribunal is under a duty to give reasons and held that the reasons given were adequate. He considered that the question of indecency is an extremely abstract matter and the giving of detailed reasons would impose an impossible task for the Tribunal.

The Court of Appeal [1997] 3 HKC 93

28. Before the Court of Appeal (Chief Judge, Wong J and Pang J), the question of whether the Tribunal is under a duty to give reasons was in issue. The Court held that it is. The Chief Judge held that there is a duty when making both final classification under section 15 and when making determinations under section 29. Wong J also held in favour of a duty and it would appear that he so held in relation to both situations. Pang J agreed with both judgments.

29. As to the adequacy of the reasons given, the Chief Judge held that the concepts of obscenity and indecency are notoriously abstract concepts and involve value judgments which are difficult to express. He ruled that the conclusion that the articles in question are indecent is overwhelming and the photographs spoke for themselves. He considered that in such circumstances, the Tribunal's reasons were adequate. Wong J also held that the reasons were adequate to meet the circumstances of the case. Pang J agreed with both judgments.

The appeal to the Court

30. The Court of Appeal having declined leave, the appellant sought and obtained leave from the Appeal Committee which held that a point of law of great and general importance is involved, namely, whether, when the Tribunal makes a determination under section 29(1), deciding if an article is indecent or obscene (or neither), can the Tribunal satisfy the requirement that reasons be given by simply identifying the criteria set out in section 10(1).

The duty to give reasons

31. The respondent has not challenged the Court of Appeal's conclusion that the Tribunal is under a duty to give reasons in making determinations under section 29 and also in making final classification. It is therefore not an issue before the Court. In my view, that conclusion is plainly correct.

32. The Chief Judge with whom Pang J agreed put the duty on the basis that it is implied by statute as a matter of construction (at 102D, 104F). Wong J held in favour of the duty "on a careful analysis and consideration of the authorities and the facts and circumstances of the present case" (at 99B). He must also have held on the same basis as the Chief Judge, as Mr Andrew Bruce SC, appearing for the respondent, informed us this was the only basis addressed in argument. Earlier in Eastern Express Publisher Ltd v Obscene Articles Tribunal [1995] 3 HKC 145 at 150D, Findlay J held in favour a duty, implied "both by the common law and by implication from this statute".

33. It is possible that the duty may be put on a wider ground than implication as a matter of statutory construction. It may be said to arise under the common law in the following way. Considering the character of the Tribunal, the kind of decision it has to make and the statutory framework in which it operates, the requirements of fairness demand that the Tribunal should give reasons; there being no contrary intention in the statute. This approach applies the classic passage in the speech of Lord Bridge in Lloyd v McMahon [1987] AC 625, 702-3:

"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."

34. This passage related to the principles of procedural fairness. But the approach is applicable when one considers whether fairness requires that reasons should be given assuming there is no contrary intention in the statute. See R v Civil Service Board at 318, and Doody at 560E-F. As the juristic basis of the duty to give reasons was not explored in argument before us, it would not be appropriate for me to express a view on the matter. It may be that in many cases, analysis on either the implication as a matter of statutory construction basis or the common law basis would lead to the same result.

35. In Doody, Lord Mustill stated (at 564E) that the law does not at present recognise a general duty to give reasons. He found in the recent cases on judicial review a perceptible trend towards an insistence on greater openness of decision making and spoke of a continuing momentum (at 561E, 566C). See also Higher Funding Council at 259A. That this trend exists cannot be doubted. The courts have increasingly found a duty to give reasons in various contexts. See also the essay by Sir Patrick Neill QC in The Golden Metwand and the Crooked Cord: Essays in honour of Sir William Wade QC [1998] at 161 and the article by P.P. Craig: The Common Law, Reasons and Administrative Justice [1994] Cambridge Law Journal 282 at 301. As the Chief Judge rightly pointed out (at 102F), the decisions in the courts in Hong Kong are consistent with and are part of this trend. It is an open question as to how the law should now properly develop in this area. But the common law is likely to apply its characteristic pragmatism and robustness. This interesting question does not arise here.

The benefits of a duty to give reasons

36. It has been said that a duty to give reasons imposes an additional burden on the decision maker. Probably, it would involve some additional work. But decision makers who are under such a duty should not regard it as a burden. They should view the duty positively as it brings various benefits. The Tribunal should certainly take a positive attitude towards it.

37. First, it would impose desirable intellectual discipline and concentrate attention on the relevant issues. It would thus assist in ensuring that any decision is made on proper grounds and contribute to the effective disposal by the Tribunal of its work. Secondly, reasons would assist in demonstrating to the parties that the Tribunal has carried out its task properly and would enable them to decide on the appropriate course of action in the case at hand, including whether to appeal or apply for judicial review. It would also provide guidance in the future to the community and persons concerned in this area. Publishers as well as the law enforcement and prosecuting authorities would have a better understanding of the standards as applied by the Tribunal and would be in a better position to make their own decisions accordingly. Thirdly, the reasons given by the Tribunal will promote and enhance consistency in its decision making and assist the law enforcement and prosecuting authorities. I would observe that broad consistency in approach is important. Fourthly, the giving of reasons would demonstrate to the community that the Tribunal is functioning properly and this would engender public confidence.

38. It should be noted that full hearings for reviewing interim classifications have to be conducted in public. See section 16(1). So presumably are hearings for the making of determinations under section 29 on references from courts where the relevant question arises in civil or criminal proceedings before them.

Adequacy of reasons

39. Where there is a duty to give reasons, it must be discharged by giving adequate reasons. What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question.

40. Both Mr Philip Dykes SC for the appellant and Mr Andrew Bruce SC for the respondent have helpfully put before us a number of authorities on the subject of the adequacy of reasons. Apart from Hong Kong, they are from Australia, Canada, England and New Zealand. I do not think any useful purpose would be served by going into them. They illustrate what courts have considered to be adequate reasons in a variety of contexts, such as employment, immigration, planning and tenancy.

41. We are concerned with the duty to give reasons by the Tribunal which operates in the context of the statutory framework in the Ordinance. In my view, the following general observations could be made as to the reasons that should be given by the Tribunal.

42. First, the reasons given should show that the Tribunal has addressed the substantial issues before it and show why the Tribunal has come to its decision. There may not be any need however to address every single issue. But the reasons should show that the issues that arise for serious consideration have been considered.

43. Secondly, when deciding on questions of indecency or obscenity, there may be cases where the contents of the articles in question would virtually speak for themselves. In these instances, the duty to give reasons could be discharged by describing the contents without much more. Apart from cases of this kind, a decision on indecency or obscenity which merely recites the statutory guidelines in section 10 would not normally be adequate. Such statements would in effect assert conclusions and would not reveal why the Tribunal has come to such conclusions.

44. Thirdly, the reasons may not require great elaboration and they may be brief. It is only when they are defective in substance that they should be considered inadequate. Ultimately, what are adequate reasons in the circumstances of a particular case has to be approached sensibly.

45. Fourthly, where a point of law is raised the point has to be decided by the presiding magistrate and the statute expressly requires reasons to be given in writing. See section 7(3). Reasons for a decision on a point of law should usually set out the findings of fact, the point of law at issue and the process of reasoning leading to the conclusion.

46. The respondent submitted that concepts of obscenity and indecency are abstract and difficult to express, a submission which found some favour in the courts below. But it has never been suggested that in making decisions on indecency and obscenity in accordance with the statutory guidelines, we are in the realm of "inexpressible value judgments". For my part, I consider that any difficulties in expression in dealing with these concepts may have been exaggerated. Mr Dykes SC drew our attention to the New Zealand decision in Waverley Publishing Co Ltd v Comptroller of Customs [1980] 1 NZLR 631. It concerned the Indecent Publications Act there which bears some similarity to our legislation. The Court gave reasons for the classifications made and they illustrate how reasons could be formulated when such concepts are involved (at 646 line 40 - 647).

47. Further, the Legislature appears to have contemplated that reasons could be expressed when dealing with concepts such as indecency and obscenity. Section 10(a) provides that the Tribunal shall have regard to community standards and

"in relation thereto may, in the case of an article, have regard to any decision of a censor under section 10 of the Film Censorship Ordinance in respect of a film ...."

48. Under section 10 of the Film Censorship Ordinance, the film censor has to decide whether to approve a film for exhibition (and if so to classify it by reference to the age groups to which it is suitable for exhibition) or to refuse approval. In making this decision, the film censor must consider "whether the film portrays, depicts or treats cruelty, torture, violence, crime, horror, disability, sexuality or indecent or offensive language or behaviour" and whether the film denigrates or insults any particular class of the public by reference to colour, race, religious belief or origins or sex. See section 10(2). The censor must also take into account the effect of the film as a whole, its artistic, educational, literary or scientific merit and its importance for cultural or social reason and the circumstances of exhibition. See section 10(3). In approving and classifying the film or refusing approval, the statute requires the censor to give a statement of reasons for the decision by reference to these relevant matters which have to be considered and taken into account. See section 10(4)(a) and (b).

49. These relevant matters are similar in kind to the matters under the Ordinance which the Tribunal has to consider in deciding on indecency and obscenity. As the Legislature has required the film censor to give reasons by reference to such relevant matters, there should be no insurmountable difficulty for the Tribunal to discharge its duty to give reasons. In relation to any article, the Tribunal may have regard to the film censor's decision for which reasons would be given.

50. This appeal is concerned with a decision made under section 29 on a reference from a court. But since the Tribunal is under a duty to give reasons not only when exercising this jurisdiction but also when exercising the classification jurisdiction, the views I have expressed on adequacy would also apply to the latter situation.

The Tribunal's decision

51. The Tribunal's decision began by reciting that it considered all the submissions advanced, directed itself to the relevant statutory provisions and reminded itself that the standard of proof is the criminal one. Then it concluded that the articles are indecent. Three reasons are given. First, each photograph violates and exceeds community standards. Secondly, the dominant effect of each photograph is indecent. Thirdly, by reason of indecency it is not suitable to be published to a juvenile.

52. In my view, the reasons given are inadequate to discharge the Tribunal's duty to give reasons in the circumstances of this case. They are conclusions rather than reasons. They do not show that the Tribunal has addressed the issues raised and why it came to the conclusion of indecency. It was pointed out to the Tribunal that the nipples had been blocked and the private part covered and submitted that photographs similar to these are not uncommon in public places and newspapers. In other words, this is relevant to measuring community standards. Did the Tribunal reject this submission ? Or if it accepted it, why did it conclude that the articles were indecent as violating and exceeding community standards. It was submitted to the Tribunal in effect that these are newsworthy items to inform our community of others' cultures. What was the Tribunal's view on that submission ? It was submitted that the articles in question were in an adult section of the newspaper. Was this accepted or rejected ? Did the Tribunal consider that for a daily newspaper, there is no distinction between various parts of the newspaper ?

53. We are here concerned with photographs of females with the upper parts of their bodies naked with the nipples obscured by applied photographic technique. Contrary to the views expressed in the courts below, I do not consider that the articles in question are obviously indecent and virtually speak for themselves. In the circumstances of this case, it was encumbent upon the Tribunal to explain why they are considered indecent. I venture to suggest that if these photographs are considered indecent, the Tribunal would be coming close to holding that photographs of semi-naked females are per se indecent according to community standards. If that is the Tribunal's reason, it should so explain.

54. Accordingly, I conclude that the reasons given were inadequate.

Relief

55. I turn to the question of relief.

56. The challenge to the Tribunal's decision in this case before the courts has been made by way of the statutory right of appeal. This is provided for in section 30(1) in these terms:

" Any party to any proceedings before a Tribunal may appeal to the Court of First Instance 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."

Section 31(a) provides that in case of any such appeal:

" the Court of First Instance may confirm the decision of the Tribunal or may order it to re-hear or re-open the proceedings to be determined in accordance with the point of law decided by it."

57. The question is as to the scope of the statutory right of appeal under section 30(1) on a point of law. Section 7(3) provides that any point of law arising during any proceedings before a Tribunal shall be determined by the presiding magistrate who is obliged to give reasons. Is the statutory right of appeal on points of law limited to the points of law decided by the presiding magistrate under section 7(3) or does it encompass judicial review grounds including that of Wednesbury unreasonableness ?

58. The question is one of statutory construction. In my view, it is limited to the former. Construing section 30(1) in the context of the statute as a whole and section 7(3) in particular, the words "against a decision of that Tribunal on a point of law" refer to the point of law decided by the presiding magistrate under section 7(3). The point of law may be raised for his decision by any party or the presiding magistrate himself or the Tribunal as a whole.

59. The construction I have come to derives some support from section 31(a). The court may either confirm the decision or order the Tribunal to re-hear or re-open the proceedings to be determined in accordance with the point of law decided by the court. It is significant that quashing the decision, a remedy available on judicial review, is not provided for. This indicates that the statutory right of appeal does not encompass all judicial review grounds.

60. It is of interest to contrast the provision here with the relevant provision for the Labour Tribunal and the Small Claims Tribunal. In relation to the former, any dissatisfied party may apply to the Court of First Instance for leave to appeal on the ground that the decision is erroneous in point of law or outside the jurisdiction of the Tribunal. See section 32 of the Labour Tribunal Ordinance, Cap. 25. In relation to the latter, any party who is aggrieved by a decision of the Tribunal on any ground involving a question of law alone or on the ground that the claim was outside the jurisdiction of the Tribunal may apply to the Court of First Instance for leave to appeal. See section 28 of the Small Claims Tribunal Ordinance, Cap. 338. These provisions are wider than the provision in the Ordinance providing for appeal against the Tribunal's decision on a point of law.

61. It follows from my conclusion on construction that the challenge to the courts on the ground that the Tribunal failed to discharge its duty to give reasons should have proceeded by way of judicial review. It is the courts' supervisory jurisdiction on judicial review that should have been invoked for which there are procedural requirements such as the obtaining of leave; not its appellate jurisdiction provided for in the Ordinance having regard to its limited scope.

62. The challenge was therefore strictly defective. But Mr Andrew Bruce for the respondent fairly accepted that we can treat the matter as if it had proceeded on judicial review. In the exceptional circumstances of this case and that all materials and arguments were before the courts, I am prepared to do so.

63. Mr Dykes for the appellant and Mr Bruce for the respondent agree that if the Tribunal is found to have failed in its duty to give reasons, then the proper relief is certiorari. Whether this is the appropriate relief where there is a failure to discharge the duty to give reasons would depend on the circumstances. In the circumstances here, I am of the view it is. I bear in mind that the reasons given here are not merely inadequate in a particular respect but are totally inadequate and virtually amount to no reasons at all. I also bear in mind that it would be practically difficult to re-constitute the Tribunal now with the same membership as the presiding magistrate is no longer a magistrate.

64. Accordingly, I would allow this appeal and grant an order of certiorari quashing the Tribunal's decision. I would order costs of the appeal to this Court, the appeal to the Court of Appeal and the proceedings before the Judge in favour of the appellant.

Mr Justice Litton PJ:

65. I agree with the Chief Justice's judgment and would simply add a few words to his comments concerning the relief sought by the appellant in this case.

66. The originating process to challenge the Tribunal's decisions was a notice of appeal under section 30(1) of the Control of Obscene and Indecent Articles Ordinance, cap 390. As the Chief Justice has observed, under that section the aggrieved party's right to appeal is limited to an appeal against the Tribunal's decision on a point of law; and the court's jurisdiction in giving relief under section 31(a) is limited to ordering the Tribunal to re-hear or re-open the proceedings to be determined in accordance with the point of law decided by the Court. An appeal on a point of law under s30(1) is a far cry from proceedings for judicial review under Order 53 of the Rules of the High Court. And yet we see in the notice of appeal lodged on behalf of the appellant the grounds as follows:

"(1) The decisions of the Tribunal are Wednesbury unreasonable.

(2) ....

(3) Tribunal has failed to give any reasons of the decisions. The Tribunal has only reproduced the statutory formulae."

67. The appellant asked for an order that the determinations of the Tribunal "be set aside".

68. Ground (1), in short-hand form, invoked the principles in administrative law embodied in the well-known case of Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223: If successful it would result in the decision being quashed by the exercise of the court's supervisory jurisdiction under s21K(1)(a) of the High Court Ordinance, cap 4. For the proceedings to be properly instituted, leave must be obtained under Order 53 r3(1) of the High Court Rules. No such leave was sought or given in this case.

69. Ground (3) of the notice of appeal is likewise an attack on the Tribunal's decision-making process; it is not a challenge to the Tribunal's decision on a point of law.

70. In short, the appellant was seeking administrative law relief without instituting proceedings under Order 53; there never was a competent appeal under s30(1) of the Control of Obscene and Indecent Articles Ordinance on foot before the judge. This procedural defect - going to the jurisdiction of the courts to grant relief - was not adverted to in the courts below. But for the respondent's agreement, given at the hearing before us, that the matter should be treated as if it had proceeded on judicial review, our own jurisdiction to grant relief would have been severely compromised.

71. This case illustrates, yet once again, the importance of parties paying close regard to procedural rules for the institution of legal proceedings.

Mr Justice Ching PJ:

72. I would also uphold this appeal for the reasons given by the Chief Justice and I would grant an order of certiorari quashing the determination of the Tribunal on the basis that they have given no adequate reasons for it.

73. It was common ground between the parties that it was the duty of the Tribunal to give adequate reasons and, if it were necessary, I would hold that that duty arises both by implication from the Ordinance and from common law. I protest at any notion that under this Ordinance there is any difficulty, let alone impossibility, in expressing reasons behind a value judgment. There may be instances where an article is so clearly indecent that very brief reasons may suffice but this is not one of them. I find it quite impossible to consider that these articles or any of them are indecent and I am firmly of the view that if the Tribunal were to find them indecent, as they have, it was their duty to say why they did so. Instead they have simply mouthed as their conclusions the provisions of the Ordinance. That is wholly inadequate in this case.

74. I would also make an order for costs as set out in the judgment of the Chief Justice.

Mr Justice Bokhary PJ:

75. I wholly agree with the Chief Justice, and would allow the appeal to make the orders which he proposes. What little of my own which I add is offered in recognition of the fact that this Court is differing, respectfully of course, from a view strongly held by all the learned judges in the courts below in a matter of great importance.

76. Whether an article is obscene, indecent or neither is for the Obscene Articles Tribunal to determine. And there are certain statutory criteria to which the Tribunal is obliged to have regard when making such a determination.

77. The present instance is not one in which the impugned article is so blatantly obscene or indecent that merely describing it amounts to saying why it is obscene or indecent as the case may be.

78. Save in an instance of that kind, the position is as follows. Simply saying that an article is obscene or indecent because it falls on the wrong side of the line drawn by the relevant statutory criteria is no more than announcing a conclusion. It does not amount to giving any reason for that conclusion. In order to give such a reason, the Tribunal must say why, in its view, the article falls on the wrong side of that line.

79. If it be said that this makes the Tribunal's task more onerous, the answer would include the following elements:

(1) We are here concerned with restrictions on publication (by the banning of material or the imposition of conditions under which the same may be published) in a free and well-ordered society. And the willingness to meet the difficulties generated by the need to achieve a sensible balance in these matters is prominent among the defining characteristics of such a society.

(2) Having to give reasons is apt to focus the mind of any Tribunal so as to improve the quality of its decisions.

(3) It also makes for openness and consistency. The standards which the Tribunal applies will become better understood. In time its workload may even abate as publishers among others acquire a better practical understanding of what it is likely to adjudge obscene, indecent or neither.

(4) In any event, the extent to which the Tribunal's task is made more onerous is not as great as some people may be disposed to believe. The Tribunal's reasons need not be lengthy or eloquently expressed. All that is necessary is that the essence of its thinking comes across.

Sir Anthony Mason NPJ:

80. I agree with the judgment of the Chief Justice.

Chief Justice Li:

81. The Court, being unanimous, allows this appeal, grants an order of certiorari quashing the Tribunal's decision and orders costs of the appeal to this Court, the appeal to the Court of Appeal and the proceedings before the Judge in favour of the appellant.

Representation:

Mr Philip Dykes SC and Mr Maurice Ng (instructed by M/S Iu, Lai & Li) for the Appellant

Mr A A Bruce SC and Mr Wesley Wong, SGC (of the Department of Justice) for the Respondent