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

HCOA000003/1996

Obscene Articles Tribunal Appeal 3/96

HEADNOTE

Control of Obscene and Indecent Articles Ordinance - Indecency - Reasons for Decision.

The Tribunal is to be the representatives of reasonable members of the Community and it is for the Tribunal as such representatives to decide on the decency or otherwise of any article.

The Tribunal has the exclusive jurisdiction to decide on the issue of decency and an appellate court has no power to substitute its view with that of the Tribunal.

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.

Such observations do not apply to articles containing just naked bodies.

Whether an article of naked bodies is indecent or otherwise is an extremely abstract matter. It is impossible for the Tribunal to set out the detailed guideline as to what constitute indecency.

The presiding magistrate and the lay members or the Tribunal need not spend all their time in court arguing if certain article is indecent because certain percentage or certain part of a woman's body is exposed. What they have to do is to have an overall picture of the articles and then apply the guidance as set out in the Ordinance to decide whether an article is indecent or not.

Sensible persons should have no difficulty in recognising whether an article is indecent or not and the Tribunal should be left to deal with such matter with as little interference as possible so long as the proper guidance under the Ordinance has been adhered to.

Obita : If it is considered that the standard of decency adopted by the Tribunal is outdated and has not properly reflected the aspiration of the public, the only solution is for the Legislature to change the composition of the Tribunal so that the view of the public can be better reflected.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Obscene Articles Tribunal Appeal 3 of 1996

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Coram: The Hon. Mr. Justice Yeung in Court

Date of Hearing: 3 March 1997

Date of Decision: 3 March 1997

Date of Handing Down Reasons for Decision: 10 March 1997

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REASONS FOR DECISION

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1. On the 3rd March 1997, I dismissed the appeal by the Appellant Oriental Daily Publisher Limited against the decision of the Obscene Articles Tribunal (The Tribunal) classifying two feature articles published by the Appellant as indecent under section 29(1)(a) and 29(2) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390 (The Ordinance). I indicated that I would give my reasons in writing and this I now do.

2. The Appellant is a leading Chinese newspaper in Hong Kong. On 29th June 1996, the Appellant published a feature article entitled "美艷如畫" at page A3 of the Oriental Daily News and on 30th June 1996 it also published a feature article entitled "雙姝裸舞" and a feature article entitled "澳洲唱片舖裸體顧客送CD" at page A17 of the Oriental Daily News.

3. The feature article "雙姝裸舞" (Beautiful and sensuous like a picture) depicts a photograph 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. Beside the photographs, there are the Chinese characters; "一名南韓女模特兒周五在首都漢城進行人體繪畫表演 ，精彩養眼。今次是南韓首次有類似的公開表演". (A 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.)

4. The feature article "雙姝裸舞" (Two naked pretty girls dancing) is a photograph depicting two naked women dancing with their hands stretching outward and their bodies leaning forward. The picture only shows the upper bodies of the two woman and they are completely naked except that the face and the upper chest of the woman in front was painted with some floral pattern. Under the photograph, there are the Chinese characters "模特兒協會成立，兩名裸體模特兒周五在漢城一間酒店表演宣傳". ( In order to celebrate the formation of the Korea Naked Model Association, two naked models were performing to publicise in a hotel at Seoul on Friday.)

5. The feature article "澳洲唱片舖裸體顧客送CD" (In a record shop in Australia, free CD gift to naked customers) consists of a series of three photographs. The top photograph depicts the naked buttocks of three woman lining up to go into what appears to be a record shop. Under the photograph, the following Chinese characters appears. "三名女顧客亦慕名而來， 裸體購物". (3 customers came out of admiration and shopped naked.)

6. The middle photograph depicts a man and a woman both completely naked. The photograph shows the upper side profile of the man but the entire front body of the woman from her knees upward is shown. She was holding a CD in such a way as to cover her genital. Under the photograph, the Chinese characters, "在唱片舖內，兩名裸體顧客大大方方地擺好姿勢，讓記者們拍照" (2 naked customers postured rather naturally and with ease before the reporters in the record shop) are written.

7. The bottom photograph depicts the side profile of the naked upper body of a woman selecting CD from the shelf. Under the photograph, there are the following Chinese characters; "一名一絲不掛的顧客周六在該唱片舖內細心選購心愛的雷射唱片，影旁若無人". (A completely naked customer was looking for her favourite CD attentively as though no other people were around.)

8. In respect of the feature article published on 29th June 1996 and the feature articles published on 30th June 1996, the Appellant was summoned under summonses ESS 14552 and ESS 14550 respectively for publishing an indecent article without cover or packaging and without the prescribed warning.

9. Both feature articles were referred to The Tribunal for adjudication under section 29(2) of the Ordinance. In concluding that both feature articles were indecent, the Tribunal, consisting of the Presiding magistrate and two adjudicators, gave the following 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".

10. 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 published to a juvenile."

11. In support of the present appeal, the appellant advances the grounds that the decisions of the Tribunal are Wednesbury unreasonable and that it has failed to properly determine the exhibits in accordance with section 10 of the Ordinance. It is further suggested that the Tribunal has failed to give any reason for the decisions, but just reproduced the statutory formula.

12. The Tribunal under section 7 of the Ordinance consists of a presiding magistrate and two or more adjudicators selected from the panel of adjudicators who must be (a) ordinarily resident in Hong Kong and has so resided for at least 7 years; and (b) proficient in written English or written Chinese.

13. The intention of the legislation is clear that the Tribunal is to be the representatives of reasonable members of the community and it is for the Tribunal as such representatives to decide on the decency or otherwise of any article.

14. The Ordinance gives the Tribunal the exclusive jurisdiction to determine the decency or otherwise of any article and a party may appeal to the High Court against a decision of the Tribunal only on a point of law.

15. Section 29 of the Ordinance provides:-

" (1) A Tribunal shall have exclusive jurisdiction to determine whether-

(a) any article is obscene or indecent;

(b) any matter that is publicly displayed is indecent; or (c) the ground of defence under section 28 is proved in respect of the publication of an article or the public display of any matter.

16. And section 30 of the Ordinance also provides:-

" (1) Any party to any proceedings before a Tribunal may appeal to the High Court 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."

17. An appellate court has no power to substitute its view with that of the Tribunal on the decency or otherwise of an article. Indeed the view of an appellate court on the decency or otherwise of an article is not relevant unless the decision of the Tribunal is Wednesbury unreasonable in which event the appellate court may intervene.

18. Mr. Justice Keith said in Eastern Touch Publisher Limited v. The Television and Entertainment Licensing Authority. O.A.T. A. Appeal No. 1 of 1996 at page 13 of his judgment:-

"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 feature was in good taste, but whether I think that the article was indecent is a matter of complete irrelevance."

19. Mr. McCoy, in support of the appeal, has raised only one point, namely that the Tribunal has failed to give any reasons for the decisions other then repeating the guidance as set out in section 10 of the Ordinance. He relied on the judgment of Finlay J. in Eastern Express Publisher Ltd. v. Obscene Articles Tribunal [1995] 3 HKC 145 when the learned judge stated at p.150 :-

"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 my be brief, but a mere recitation of a statutory formula is not enough. It the Tribunal has not done this; if the Tribunal does not give reasons sufficient to justify a particular decision, the court assume that the Tribunal had no such reasons."

20. With respect, the Tribunal did give reasons for their decisions. It was pointed out that the feature articles violated and exceeded the standard of morality, decency and propriety that are generally accepted by reasonable members of the community and therefore unacceptable. They also said the dominant effect of all the photographs was indecent as a whole and therefore they found them to be indecent and not suitable to be published to juveniles.

21. In my view, those reasons are adequate reasons to support their conclusion that the articles in issue are indecent under the Ordinance.

22. If Findlay J.'s view was to the effect that the Tribunal had to set out detailed reasons to support the conclusion that an article was indecent because for example, which part of the body or certain percentage of the body of a woman depicted in the photograph was exposed, I found myself unable to accept his conclusion.

23. Whether an article is indecent of 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 and applying the standard of morality, decency and propriety that are general accepted by reasonable members of the community that they represent.

24. The Presiding magistrate and the lay members of the Tribunal do not spend all their time in court arguing if certain article is indecent because certain percentage or certain part of a woman's body is exposed. What they have to do is to have an overall picture of the articles and then apply the guidance as set out in the Ordinance to decide whether an article is decent or otherwise. It is a question of fact to be decided exclusively by the Tribunal and such decision an appellate court cannot and should not interfere with.

25. To expect the Tribunal to give detailed reasons as suggested by Mr. McCoy will imposed an impossible task on the Tribunal. In any event, such reasons will only tend to obfuscate rather than provide a clear guideline as whether an article is indecent or not is a question of fact depending on all the circumstances of each case.

26. I appreciate the anxiety on the part of the appellant to be able to have certain fixed guideline to follow. But it is simply not possible for the Tribunal to provide such guideline on the issue of indecency.

27. Sensible persons should have no difficulty in recognising whether an article is indecent or not and the Tribunal should be left to deal with such matter with as little interference as possible so long as the proper guidance under the Ordinance has been adhered to.

28. That, in my view, is the whole purpose of appointing lay persons as adjudicators to sit with a presiding magistrate to determine whether an article is indecent and that is why the Tribunal has been conferred with the exclusive jurisdiction to make such decision.

29. If it is considered that the standard of decency adopted by the Tribunal is outdated and has not properly reflected the aspiration of the public, the only solution is for the Legislative to change the composition of the Tribunal so that the view of the public can be better reflected.

30. I have considered the simple argument advanced by Mr. McCoy on

behalf of the appellant. I do not agree with such argument. There is no merit in this appeal and the same must be dismissed with costs.

Representation:

Mr. G. McCoy instructed by Messrs. Simon, Siu, Wong, Lam and Chan represented the Appellant.

Ms. May Ho S.C.C. of the A.G.'s Chambers represented the Respondent.