East Touch Publisher Ltd. v. The Television and Entertainment Licensing Authority

HCOA000001/1996

Headnote

[(i) It is not proper for the Obscene Articles Tribunal ("the Tribunal") to be a party to an appeal against one of its determinations. The proper parties to the appeal are the parties to the proceedings from which the appeal is brought. Accordingly, the Television and Entertainment Licensing Authority was substituted for the Tribunal as the Respondent to the appeal.

(ii) In determining whether an article referred to the Tribunal under section 29(2) of the Control of Obscene and Indecent Articles Ordinance (Cap. 390) is indecent, the Tribunal cannot take into account the system of classification under section 8(2)(b).

(iii) In order to prove that an article is indecent, it is not necessary to prove that it is possible that some harm will be caused by its publication.]

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

OBSCENE ARTICLES TRIBUNAL APPEAL No. 1 of 1996

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Coram: The Hon. Mr Justice Keith in Court

Date of Hearing: 2 July 1996

Date of Delivery of Judgment: 2 July 1996

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J U D G M E N T

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INTRODUCTION

1. "East Touch" is a weekly magazine in the Chinese language. It is published by East Touch Publisher Ltd. ("the publishers"). Issue 42 of the magazine was published on 29th March 1995. It included an article about what it described as a "Festival of Pornography". In due course, the publishers were served with a summons alleging that the magazine had been displayed on a newspaper stall without an accompanying warning that the magazine contained material which may offend, and should not get into the hands of persons under the age of 18.

2. The publishers could only have been guilty of that offence if the article was indecent. The Obscene Articles Tribunal ("the Tribunal") has exclusive jurisdiction to determine whether an article is indecent. Accordingly, the article was referred to the Tribunal for that question to be determined. On 14th February 1996, the Tribunal determined, by a majority of 2 : 1, that the article was indecent. I have been told that this was the first time that the Tribunal had made a determination which was not a unanimous one. The publishers now appeal against that determination. The appeal lies on a point of law only. All references in this judgment to sections of an ordinance are references to sections of the Control of Obscene and Indecent Articles Ordinance (Cap. 390), and all references in this judgment to the Decision of the Tribunal are references to the Decision of the majority of the Tribunal.

THE RESPONDENT

3. The Tribunal is named as the Respondent to this appeal. That is not an uncommon practice. However, the practice is wrong. The parties to an appeal are the same parties as the parties to the proceedings from which the appeal is brought. The parties in these proceedings before the Tribunal were the Television and Entertainment Licensing Authority ("TELA") which laid the information which resulted in the issue of the summons, and the publishers against whom the summons was issued. Accordingly, it is TELA who should have been named as the Respondent to this appeal. That does not mean that the Tribunal is going to be kept in the dark about the appeal. Ord. 55 r. 4(1)(b) provides that the Chairman of the Tribunal must be served with the Notice of Originating Motion by which appeals to the High Court from the Tribunal are commenced.

4. Mr. Andrew Bruce Q.C., who represents the Tribunal, is content for the Notice of Motion to be amended, and he has received instructions from TELA to represent it on this appeal. Accordingly, I give the publishers leave, pursuant to Ord. 15 r. 6(2)(b)(1), to amend what is described as the "Notice of Appeal" so as to substitute TELA for the Tribunal as the Respondent to this appeal.

THE ARTICLE

5. The article begins by claiming that pornography is celebrated in western societies each year on 2nd April. Having described what purports to be the history of this "Festival of Pornography", the article then advertises various sex products. They are not sexual aids. They are novelty items, full of sexual innuendo, designed, I think, to be humourous rather than erotic. They are all illustrated or photographed, and accompanied by a text of varying degrees of banality. The items which attracted the particular attention of the Tribunal include reproductions, in plastic or chocolate or otherwise, of the penis and testicles. Three of the items give a realistic flavour of what they are all like:

(i) Penis pasta. The warning on the packet reads: "Warning! Increases in size when cooked". The accompanying text tells the reader: "It's a delight to see these 'little things' become big and they are delicious."

(ii) Spectacles. These are plastic spectacles with black frames. They are the kind worn by Groucho Marx impersonators, except that instead of the moustache there is a penis which fits over the wearer's nose.

(iii) Chocolate. There is a box of chocolates called "Naughty Bits". Two of the contents are photographed. One is a pair of women's breasts with blue stars concealing the nipples. The other is an erect penis and testicles with a black star concealing the tip of the penis.

The article then proceeds to describe the sort of food appropriate to a "pornographic feast". Again, it is humour rather than eroticism which is intended. An example is the sausage shaped like a penis. A photograph shows a sausage shaped like a penis rising upwards from a plate surrounded by rather unappetising bits of salad. The accompanying text reads: "Note: Size of the sausage depends on size of the mouth. How to eat: No chopsticks, knives or forks. Suck it!". Finally, in case the reader might have been misled, the article ends up by admitting that there is no such thing as the "Festival of Pornography". It concludes with a plea to the reader not to take the article seriously (as if the reader might otherwise have been tempted to do so). However, it also concludes with a plea to the "moralist" not to "fume over it", thereby recognising, I think, that some people might have been offended by the article.

THE STATUTORY FRAMEWORK

6. An article is indecent if "by reason of indecency it is not suitable to be published to [a person under the age of 18]": section 2(2)(b). Section 10(1) sets out the matters which the Tribunal is obliged to have regard to in determining whether an article is indecent . They include (i) the standards of morality, decency and propriety that are generally accepted by reasonable members of the community, (ii) the dominant effect of the article as a whole, (iii) the age of the persons to whom the article is intended to be published, and (iv) whether the article has an honest purpose or whether its content is merely camouflage designed to render acceptable any part of it. Finally, section 28 provides for the defence of public good. An article which would otherwise be indecent may be saved if it was "intended for the public good on the ground that [its] publication ... was in the interests of science, literature, art or learning, or any other object of general concern."

AN ERROR IN THE TRIBUNAL'S APPROACH

7. The article in this case was referred to the Tribunal under section 29(2). However, articles may also be submitted for classification by a Tribunal under section 13(1). Section 8(2)(b) identifies how articles submitted under section 13(1) are to be classified. Class III is reserved for articles which the Tribunal thinks are obscene. Class II is reserved for articles which the Tribunal thinks are indecent. Class I is reserved for articles which the Tribunal thinks are neither obscene nor indecent. In determining whether an article referred to the Tribunal under section 29(2) is indecent, the Tribunal cannot decide that question by reference to the system of classification under section 8(2)(b).

8. It looks as if the Tribunal disobeyed that injunction. I say that because in para. 13 of its Decision, the Tribunal considered the differences between the various classifications. In addition, the Tribunal expressed its opinion that the difference between Class I and Class II was regarded by the legislature as more important than the difference between Class II and Class III. That was not a relevant consideration for the Tribunal at all. However, having read the Decision carefully, I do not think that the differences which the Tribunal perceived between the various classes formed the basis of its Decision. The basis of its Decision was that (i) people under the age of 18 were included in the magazine's readership, (ii) that readership should not be exposed to illustrations of male genitalia under the guise of humour, and (iii) the members of the Tribunal did not want their children to see an article of this kind.

9. On the other hand, there was one matter which the Tribunal expressly said it did not take into account but which could have been a factor in favour of a determination that the article was indecent. The novelty items were all available for sale, according to the article, at a particular shop. The Tribunal was told that access to the shop was prohibited to persons under the age of 18. That was not disputed. The effect, therefore, of publishing photographs and illustrations of the items was that persons under the age of 18 who could not see them in the shop were nevertheless able to see them in the magazine.

THE LANGUAGE OF THE DECISION

10. The Tribunal is, so Mr. Gerard McCoy for the publishers told me, a body which until recently was not required to give reasons for its decisions. That may explain why the language which the Tribunal used in the Decision was at times not entirely clear, and why the Decision was not as well-structured as it might have been. It is, of course, important to remember that the Decision was written in a language which was not the first language of the presiding magistrate, and it is always difficult to encapsulate the views of more than one person in a single judgment. I mention this not to be judgmental in any way, but because Mr. McCoy submitted that a fair reading of some of the language used by the Tribunal demonstrated palpable errors of law. I do not think that Mr. McCoy would have been able to argue that if the ideas which the Tribunal wanted to convey had been expressed with greater clarity.

THE ATTACK ON THE TRIBUNAL'S DECISION

11. Against that background, Mr. McCoy attacked the Tribunal's Decision on a number of grounds. His attack was a wide-ranging one, but on analysis I think that they amounted to 8 different points. I shall deal with each in turn:

(i) Acceptability. In two passages in the Decision, the Tribunal referred to "acceptability". In para. 1, it referred to the "standard of acceptability". In para. 14, it described the Tribunal as being a "Community Court of opinion on morality standard acceptability". The argument is that the use of that language shows that the Tribunal temporarily forgot that the question was whether the article was suitable to be published to a person under the age of 18, and substituted for it the test of whether it was acceptable to the community. I reject that argument. Section 10(1) enjoins the Tribunal to have regard to the standards which are acceptable to reasonable members of the community, and that is all, I think, that the Tribunal was referring to. To say that the Tribunal confused the question which it had to decide with one of the criteria which it had to apply in order to decide it is, in my view, being unduly harsh on the Tribunal.

(ii) The personal views of the Tribunal. Mr. McCoy accuses the majority of the Tribunal of allowing their personal feelings to influence them. He points to the fact that the Tribunal expressly asserted that they would not have brought the article home for their children to see. For my part, I do not see that as a matter of criticism. Whether the article was suitable to be published to a person under the age of 18 was very much a value judgment for each of the Tribunal members. By saying that they would not have wanted their children to see the article, the members of the Tribunal were simply saying that the article was not suitable to be published to them. Subject to one point, that was precisely the question which the Tribunal was required to answer.

12. My one reservation is that the standards by which the members of the Tribunal were to judge the article were not their own standards, i.e. it was not what they would be happy for their children to read that mattered. The relevant standards were the standards acceptable to reasonable members of the community. However, I can, I think, put that concern to one side, because I must assume that the members of the Tribunal have been selected because they are the embodiment of reasonable members of the community. What they would be happy for their children to read represents, therefore, what reasonable members of the community would be happy for their children to read.

(iii) Dominant effect. It is asserted that the Tribunal failed to consider the dominant effect of the article as a whole. There is some force in that argument in view of some of the language which Tribunal chose to use. The Tribunal said in para. 4 of the Decision, for example, that "if there is one single piece of [the] article capable [of being] considered as indecent ..., then there would be a prima facie case to answer". I do not think that that sentence is happily phrased, but what I think the Tribunal was getting at was that if no part of the article was indecent, there would be no basis for saying that the article, taken as a whole, was indecent. Once one part of the article was indecent, it would be necessary to look at the dominant effect of the article to see if, taken as a whole, the article could be said to be indecent.

13. Mr. McCoy points to the lack of any reference in the Decision to the text accompanying the illustrations and photographs, and to the emphasis which the Tribunal undoubtedly placed on the reproductions of the penis and testicles. The criticism is that the Tribunal failed to focus its attention on the effect on the reader of the article as a whole, but focused its attention on the content of parts of the article. However, I do not think that this criticism shows that the Tribunal placed undue weight on only part of the article, and ignored the dominant effect of the article as a whole. What I read the Tribunal as doing was highlighting the features of the article which caused the article, when taken as a whole, to be indecent.

(iv) Honest purpose. Mr. McCoy said that the article had an honest and serious purpose. It used humour to take some of the mystique out of sex, and to show that sex has its funny side . It is undoubtedly the case that the article was intended to be humourous, and that it advocated that sex should not be taken too seriously. But at the same time, although the Tribunal did not say so in as many words, I read the Decision as a whole as showing that the Tribunal found that the treatment of sex in a humourous way was designed to camouflage its real purpose, which was to depict sexually explicit reproductions of male genitalia for its own sake, and to peddle in sexual innuendo.

(v) Public good. The defence of public good is available to save an article from being regarded as indecent if it would have been indecent but for the defence of public good. The correct approach, therefore, is for the Tribunal first to determine whether the article is indecent. If it is, the Tribunal should then consider whether the defence of public good has been made out. The criticism of the Tribunal is that it failed to approach its task in that way. I do not agree. In my view, a fair reading of the Decision in its entirety does not show that the Tribunal failed to distinguish between indecency on the one hand and the defence of public good on the other. But even if the Tribunal had confused the two, the very idea that this article could conceivably have been in the interests of science, literature, art or learning, or any other object of general concern, e.g. to serve an educational function, is laughable. Indeed, the defence of public good was not relied on before the Tribunal, and there was therefore no reason for the Tribunal to have addressed this defence at all.

(vi) The section 10(1) criteria. Mr. McCoy complains that the Tribunal's approach to the application of the criteria set out in section 10(1) was erroneous. What the Tribunal did, so it is said, was to decide whether the article was indecent without reference to some of the statutory criteria, and then to test that conclusion by reference to the criteria which it had not yet considered. That approach would obviously have been wrong. If authority was needed for that, we need look no further than the judgment of Findlay J. in Eastern Express Publishers Ltd. v. Obscene Articles Tribunal [1995] 3 HKC 145 at p.156G-H. On a literal reading of the language which the Tribunal used, I can see some basis for thinking that this may have been the Tribunal's approach. However, on a fair and open-minded reading of the Decision, making full allowances for the language difficulties to which I have referred, I think it more likely than not that the Tribunal did not fall into the serious error of which Mr. McCoy complains. Nor do I think that the Tribunal fell into the error of tokenism, by which I mean paying lip-service to the statutory criteria while not actually applying them, though I agree with Mr. McCoy that that view could be said to be suggested by a literal reading of the language which the Tribunal used.

(vii) Harm. Mr. McCoy argued that, in law, an article cannot be indecent unless it is proved that it is possible that some harm will be caused by its publication. He relied on the observation by Findlay J. in Eastern Express at p.157H that "[t]he purpose of the legislation is to safeguard our community against harm". I reject that argument. I agree with Findlay J. as to the purpose of the legislation, but that does not mean that the possibility of harm has to be proved before indecency can be established. Indeed, the legislature expressly decided not to include the possibility of harm as an element in the definition of indecency, or in the criteria to be taken into account under section 10(1), because section 10(1) was itself based on parallel legislation in New Zealand, and the definition of indecency in that legislation included the publishing of material "in a manner injurious to the public good", which was not reproduced in Hong Kong's definition of indecency.

(viii) Irrationality. Mr. McCoy argued that the Tribunal's conclusion was so outrageous in its defiance of logic and accepted moral standards that no sensible person who applied his mind to the question which the Tribunal had to decide could have arrived at it. I must, of course, guard against substituting my own view for that of the Tribunal, because the Tribunal is the body which the legislature has decided should be the sole and ultimate arbiter of whether articles are indecent. I must also bear in mind that the weight to be attached to particular features of the article was a matter for the Tribunal. I do not think that the article was in good taste, but whether I think that the article was indecent is a matter of complete irrelevance.

14. I cannot say that it was not open to the Tribunal reasonably to conclude that younger readers of this magazine should not be exposed to reproductions of male genitalia, even though they were accompanied by a text which used humour as its literary tool. That is not to say that reproductions of the penis and testicles can never be included in a book or magazine intended for reading by teenagers. A manual of sex education, or a work on Renaissance art which includes a photograph of Michaelangelo's "David", would be entirely different from the exposure of male genitalia in issue 42 of East Touch. In the final analysis, I cannot say that it was not open to the Tribunal reasonably to conclude, in the light of the definition of indecency and of the factors to which it was obliged to have regard, that this article was indecent.

CONCLUSION

15. For these reasons, therefore, this appeal must be dismissed.

Representation:

Mr. Gerard McCoy and Mr. P.Y. Lo, instructed by Messrs. Wilkinson & Grist, for the Appellant.

Mr. Andrew Bruce Q.C., Senior Assistant Crown Prosecutor, and Miss Lily Ho, Senior Crown Counsel, for the Respondent.