Read the full judgment text of FACC 000001/1998 on BabelCite. This FACC judgment was delivered on 25 November 1998 before Chief Justice Li, Litton PJ, Ching PJ, Bokhary PJ and Sir Anthony Mason NPJ.
Administrative law – duty to give reasons – Control of Obscene and Indecent Articles Ordinance (Cap 390) – Obscene Articles Tribunal – determination under section 29 that photographs in a Chinese-language newspaper were indecent – appellant publisher of Oriental Daily News – photographs of partial female nudity with nipples obscured by opaque squares and pubic areas covered – charges under section 24 for publishing indecent articles without statutory safeguards – whether Tribunal discharged its duty to give adequate reasons – whether statutory right of appeal under section 30(1) encompasses judicial review grounds – whether certiorari is appropriate relief. The Court of Final Appeal held that the Tribunal was under a duty to give reasons, both by implication from the statute and at common law, applying the test of fairness in Lloyd v McMahon [1987] AC 625 and the trend towards openness in decision making. On the adequacy of reasons, the Court held that reasons should show that the substantial issues have been addressed and why the decision was reached. Merely reciting the statutory criteria in section 10(1) normally amounts to conclusions rather than reasons, and would be inadequate unless the contents of the articles speak for themselves. The Tribunal's three stated grounds – that the photographs violated community standards, that their dominant effect was indecent, and that they were unsuitable for juveniles – were conclusions, not reasons, and failed to address specific defence submissions about blocked nipples, covered private parts, the prevalence of similar photographs in public, the newsworthiness of cultural events, and the placement in the adult section of the newspaper. On the scope of the statutory right of appeal under section 30(1), the Court held that this was limited to points of law decided by the presiding magistrate under section 7(3), and did not encompass judicial review grounds such as Wednesbury unreasonableness or failure to give reasons, as confirmed by the limited remedies under section 31(a) (confirmation or rehearing, but not quashing) and contrast with the wider appeal provisions in the Labour Tribunal Ordinance (Cap 25 s.32) and Small Claims Tribunal Ordinance (Cap 338 s.28). The challenge should have proceeded by way of judicial review under Order 53 of the Rules of the High Court. By consent of the respondent, however, the Court treated the matter as if it had so proceeded. On relief, the Court held that certiorari quashing the Tribunal's decision was appropriate, given that the reasons were totally inadequate, the presiding magistrate was no longer a magistrate making reconstitution impractical, and both parties agreed this was the proper relief. Appeal allowed; order of certiorari granted quashing the Tribunal's decision; costs of the appeal to the Court of Final Appeal, the appeal to the Court of Appeal, and the proceedings before the Judge awarded to the appellant.
Legal issues: Adequacy of Tribunal's reasons for indecency determination under section 29 · Scope of statutory right of appeal under section 30(1) of Cap. 390 · Appropriate relief for failure to discharge duty to give adequate reasons
Outcome: Appeal allowed; order of certiorari granted quashing the Tribunal's decision.