Tan Jwee Huat and Another v. Commissioner of Customs and Excise and Another
Read the full judgment text of HCAL 26/1999 on BabelCite. This High Court CFI judgment was delivered on 26 August 1999.
1. The question in this case is whether a stamper, which is a tool for replicating compact discs, is an article for the purpose of sections 8 and 29 of the Control of Obscene and Indecent Articles Ordinance ("the Ordinance "), and whether it is capable of classification as obscene within the contemplation of that Ordinance .
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HCAL000026/1999 HCAL26/99 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 26 OF 1999 -----------------------
----------------------- Coram : Stock J in Court Date of hearing : 29 July 1999 Date of handing down judgment : 26 August 1999 ------------------- J U D G M E N T ------------------- 1. The question in this case is whether a stamper, which is a tool for replicating compact discs, is an article for the purpose of sections 8 and 29 of the Control of Obscene and Indecent Articles Ordinance ("the Ordinance"), and whether it is capable of classification as obscene within the contemplation of that Ordinance. 2. The Obscene Articles Tribunal has classified a number of stampers of this kind seized from the applicants as obscene articles and by this application for judicial review, the applicants say that that classification was unlawful because a stamper is not and cannot be an article which, as defined by the Ordinance, is one in respect of which the Tribunal has power to make any classification; and that even if, contrary to that contention, it is an article, the information on the stamper itself, as opposed to the information converted from it into the form in which it was viewed by the Tribunal, could not be said to be obscene. This court is asked to quash the decision of the Tribunal that the stampers were obscene articles. The facts 3. The factual background is this. The first applicant runs a business in Macau, and he exports stampers. The second applicant operates a business in Hong Kong and, it is said, orders stampers from the first applicant. On 20th May 1998, the first applicant arrived in Hong Kong from Macau, carrying 11 stampers, eight of which he declared to the authorities, but there were three others found on him in a jacket pocket which he did not declare, and it was suspected that these stampers were used to make infringing copies of video compact discs. He told the custom officer who questioned him that he was due to place the stampers in a locker and that they were to be collected. He was permitted to do that, and in due course the second applicant arrived at the Hong Kong and Macau Ferry Terminal, removed the stampers and was carrying six others in a plastic bag. Tests were conducted and the conclusion was formed by the investigators that the stampers were used to copy obscene films. In June 1998, the stampers were sent by the Customs authorities to the Obscene Articles Tribunal for classification and they were classified as obscene articles. In November 1998 the applicants were charged with criminal offences, and the stampers were, it seems, sent again to the Tribunal and once again classified or certified as obscene articles, which certification was used for, or intended to be used for, the purpose of the criminal proceedings before the magistrate. 4. The applicants were charged with importing for the purpose of publication obscene articles, namely, three obscene video compact disc stampers, contrary to s.21(1)(c) of the Ordinance; and the second applicant was charged with possession for the purpose of publication obscene articles, namely, six obscene video compact disc stampers, contrary to s.21(1)(b) of the Ordinance. The stampers were then sent to the Tribunal for a determination, and it is said that the Customs and Excise Department spent something in the order of $100,000 to modify a laser disc player to enable the stampers to be viewed by the Tribunal. The nine stampers were classified by the Tribunal as obscene articles on 24th November 1998, and a certificate of that decision was drawn by a magistrate, the purpose of which certificate is for use in any proceedings as conclusive evidence of the facts stated in it. 5. The applicants then appeared for trial in the magistracy on 27th January 1999, and when counsel sought on their behalf to argue that a stamper was not an article for the purpose of the Ordinance, the problem was recognized that the magistrate was faced with a certificate, conclusive for the purpose of those proceedings, that it was. That is why this matter comes before this court with an application to quash the decision of the Tribunal which forms the subject matter of the certificate. The Ordinance 6. Section 8 of the Ordinance delineates the jurisdiction of the Tribunal :
Part V, to which section 8(1) refers, comprises section 29 of the Ordinance, which, in so far as is relevant, states that :
7. It is not clear whether it was the magistrate who asked the Tribunal to determine whether the stampers were obscene, for the certificate in question states that they were sent to the Tribunal for determination by a Customs and Excise Officer, but nothing appears to turn on this point. Nor do I have information which tells me what was done to convert the information into viewable form by the Tribunal. It would have been helpful if that evidence had been filed, though that is not to say that the issues cannot be determined without it. 8. Be that as it may, the determination by the Tribunal in this case was a determination under section 29(1)(a) of the Ordinance. 9. An article is defined by section 2(1) of the Ordinance as meaning :
That is the provision of the Ordinance which is at the centre of this application. 10. The matters to which a Tribunal is to have regard in determining whether or not an article is obscene are prescribed by section 10 of the Ordinance. They are :
Sub-sections 2(4) and 2(5) of the Ordinance have been the source of considerable debate in the course of this application. They provide as follows :
There can be no question but that a stamper is something which is intended to be used for the purpose of reproducing an article as article is defined by section 2(1). 11. As for the offences with which the applicants were charged, the relevant section is section 21 of the Ordinance which provides that :
Stampers 12. I have before me the uncontested testimony of the regional manager of an international digital disc company, which explains what a stamper does. I also have the advantage of a chapter entitled "Disc Manufacturing" from a standard work in the field called"The Compact Disc Handbook", and have examined some internet literature (in particular, Marshall Brian "How Compact Discs Work"; and Cinram's "Plant Tour of How Compact Discs are Made"). I have been shown one of the stampers in question. It is in outward appearance precisely the same as the form of silver coloured compact discs commonly on sale. It is, however, a device used to replicate the production of the ultimate compact disc product. 13. A compact disc is a piece of plastic impressed with bumps arranged in a spiral track. A compact disc player is used to enable a laser to read the data which is stored as bumps. The compact disc begins life as a master tape - the master tape is the source material. The master tape is then copied to a tape master, which is the master tape in digital form. The data on the tape master is placed on a disc of polished glass which is then covered with a liquid material called photoresist, and this covered glass product is called the glass master. On to the glass master, with the use of a laser, is recorded the information from the tape master. When the photoresist is washed away there is left a pit of information formed by the laser during that recording. A layer of nickel is then placed onto the glass master, and the nickel part is then separated after a process called electroforming. The nickel part thus separated from the glass master is called the 'father' and that sheet of nickel thus removed from the glass master is the reverse image, or negative impression, of the pit track or data. It could be used to stamp or replicate discs, but for the purpose of mass production the process in fact adopted is for a new layer of nickel to be grown onto the father and then separated as the 'mother'. The 'mother' is then used for the creation of yet a further layer of nickel which is removed from the mother and is called the 'son' or 'stamper'. So the stamper is the same in its effect as the 'father', in that it bears the reverse image of the data and is used to replicate compact discs. A number of stampers will be cut into circumference shape and used with a machine to replicate compact discs. By this process the stamper imprints, transfers or stamps the data onto the final product, the compact disc itself. The evidence adduced by the applicants' expert is that the stamper itself is not intended itself to be viewed and cannot be played without substantial modifications to the disc player. The argument 14. The argument for the applicants is that a stamper cannot be an article as that word is defined by section 2(1) of the Ordinance. It is not something which consists of material to be read or looked at, or both read and looked at. In any event, it contains only the negative impression of digital data and such material, being in digital form and the very inverse of the final, albeit obscene, product, cannot, for that very reason, be obscene. What the Tribunal saw was not the stamper itself. The stamper it is said is intrinsically harmless, yet was made into something harmful only by an expensive process undertaken by the Customs and Excise Department. It was the transformed product which was examined by the Tribunal; the transformed product that was obscene. Indeed, the Tribunal never examined the stampers themselves; they did not examine the very articles which the applicants had in their possession upon their arrest. It is therefore patently nonsensical for the Tribunal to determine that the stampers themselves were obscene. In so far as the definition of 'article' refers to a film or a record of a picture, it is contended that the stamper is not, nor does it contain, a picture. A picture, it is said, is a representation of an object; something comprehensible in itself to an ordinary member of the public; whereas a stamper contains digital data which, if produced as digital data, is to the ordinary member of the public quite meaningless, and therefore incapable of being assessed as obscene. Analysis 15. The definition of article in section 2(1) is not confined to material to be read or looked at. So, for example, a sound recording is not something which is intended to be read or looked at, but is nonetheless an article. A video tape is not an object which is intended to be looked at itself, yet, it seems to me, is undoubtedly a "record of a picture" and a "record of a picture or pictures" is undoubtedly an 'article' as defined by section 2(1). Neither the Tribunal nor a member of the public would view a video cassette itself or the celluloid running through it, yet the fact that the cassette and the celluloid are neither of them comprehensible in themselves does not preclude them from being articles. Though that which is viewed is the picture produced when electrical signals are fed by a cable to a receiver, the tape remains nonetheless a record of the film or picture which has been fed onto it from a master tape or master recording. 16. It seems to me clear that a stamper falls within the definition of 'article' under section 2(1) of the Ordinance in two ways. First, it is a disc. Second, it is a record of a picture. The master tape is a record of that picture. The stamper is a record of the particular picture recorded by the master tape, and of no other picture. It is designed to replicate that picture, and no other. "Record of the picture" is to be distinguished from the picture itself. The stamper is said to house the inverse of the picture or of the record. But, inverse or not, it is nonetheless a record of that picture. The fact that it is a record in digital form does not, in my judgment, somehow render it something other than a record; just as a video tape is a record of a picture or pictures even though that record is constituted by electrical impulses on a tape. A stamper is, in essence, a recording from which other copies are pressed, and the very fact that the stamper can then be, and is intended to be, treated so as to reproduce a particular picture, and none other, in its usual viewable form, itself illustrates that the stamper is a record of that picture. 17. The suggestion that the stamper is not capable of being obscene because it is in digital form and is, to boot, the very inverse of the original and of the ultimate obscene product, is an echo of one of the arguments deployed in respect of video cassettes utilized by cinema operators in A.G.'s Reference (No.5 of 1980) [1983] All ER 816, a case which turned on the interpretation of sections 1(2) and (3) of the Obscene Publications Act 1959 in England, where article was defined by subsection (2) as "any description of article containing or embodying a matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures". The court concluded that the object of that subsection "was to bring all articles which produced words or pictures or sounds within the embrace of the Act." (per Lawton LJ at page 821). 18. It avails nothing, in my judgment, to say that the stamper, or the information on the stamper, is meaningless as it stands because it is in digital form. That is to suggest that anything which requires the application of some extraneous mechanism to render it audible or viewable cannot be classified as obscene. If that held good as a proposition, it is difficult to see how logic would then permit classification as obscene such objects as a video tape, or a gramophone record, even though the content were grossly obscene and even though the manufacturer or dealer intended to sell thousands; for each such object requires the application of extraneous mechanisms to render it into a form which in itself can give offence. Such a result would defy common sense and defeat the weakest of purposive constructions; and if I am correct in saying that such a proposition is untenable, then the same must follow for any proposition which suggests that something in mere digital form cannot as it is, and without more, be obscene. The fact of digital recording does not warrant an aura of mystique by which the intricacies of high technology are permitted to unravel and cloud the common sense approach which we apply to less complex machinery and articles; articles which we can readily and sensibly label as obscene, even though they cannot, as they are and without more, be read, or be viewed as a film, or be heard. All that digital recording does is to convert analog waves into numbers; and to produce a higher quality reproduction than other forms of recording. 19. The argument which latches onto the fact that the information is in reversed or negative form at a given point, as in the case of a stencil or a mould, is, I believe, but an extension of the argument which I have just rejected. The reverse image itself is not intended to be viewed as a reverse image; just as the video tape and the gramophone disc are not intended to be viewed or absorbed as they are. Yet what they have in common is that they each house information which it is intended will be produced with the aid of extraneous mechanisms. It is the information housed that is the key. A stamper is in effect a mould or a print, the sole function of which and the sole intent behind the possession of which, is to house information and to then reproduce that information - information which in the case of video compact discs will be an image or images. The fact that at a given point in time the image happens to be reversed does not preclude the information from being obscene for the purposes of the Ordinance. The contrary suggestion is little different from that advanced in Derrick v. Commissioners of Customs and Excise [1972] 1 All ER 992. That case resulted from the seizure of 33 mm cinematography film imported by the appellants and said to be liable to seizure under an Act which prohibited the importation of "indecent or obscene prints, paintings, photos, books, cards, lithographic or other engraving or any other indecent or obscene articles." The films were in transparency form and because they were small, required mechanical apparatus to project them before they could be visually enjoyed or inspected. The court rejected the argument that the film was not capable of being indecent or obscene since it was not in a form which could give offence. In particular, Lord Widgery had little doubt, in construing a section in the Obscene Publications Act 1959 (which I discuss in more detail later), that a negative was a film or other record within the meaning of section 1(2) of that Act. "I see no reason," he said (at page 995), "to distinguish between the positive and the negative for the purposes of that Act, and accordingly, as it seems to me, the argument that this film is not capable of being indecent or obscene because it is not translated into a form in which it can give offence is not an argument which I find attractive in this case.". I see little in principle to distinguish a negative of a film or photograph for the purpose of the present point, from the negative impression which is the essence of a stamper. 20. This then leaves a point which is, perhaps, the most difficult of those advanced to resolve. It is said that, by its very nature, a stamper is not an article intended for, or indeed capable of, publication, and therefore outwith the contemplation of the Tribunal's function. 21. In this regard, it is instructive to examine the history of relevant English legislation and case law in the 1950s and beyond, for the impact of that history upon Hong Kong legislation. The Obscene Publications Act 1959 provided :
The decision in Straker v. Director of Public Prosecutions [1963] 1 QB 926 revealed a lacuna in the legislation. The case concerned film negatives. The argument was that a negative was not an article within section 1(2); it was not a film, and that even if it were an article thus defined, it could not be obscene unless published, and negatives were not published - they were used only to produce prints produced from the negatives. The argument in this application for judicial review, that the Tribunal ought not to have looked at the film produced from the stampers, is reminiscent of the contention advanced by the appellant in Straker that the magistrate was wrong to look at the prints produced from the negatives. The Divisional Court of the Queen's Bench Division thought it possible, without deciding, for a negative to come within the words "any film or other record of a picture," (and, in this regard, see Derrick, above), but held that it was impossible to say that a negative was capable of publication - as publication was defined in the 1959 Act - since the negative was not shown, played or projected to some member of the public. 22. That conclusion was to be contrasted with the decision in Cox v. Stinton [1951] 2 KB 1021, which turned on wording in the Obscene Publications Act 1857. It was contended that the justices had no power under that Act to order the destruction of glass negatives since no intent to distribute the negatives was proved. That argument was rejected, and the decision was distinguished in Straker because the 1857 Act employed terminology wider than that employed by the 1959 Act, whatever might have been the intention of the draftsman of the 1959 legislation. "Articles" under the 1857 Act included general words such as "other representations", and the specific methods of possible publication which were itemized - for example, sale, distribution, exhibition for gain - preceded the catch-all phrase : "or being otherwise published for gain". That was sufficient for Lord Goddard, CJ in Cox v. Stinton at page 1026 :
23. It was no doubt to fill the gap in the 1959 legislation identified by the Divisional Court in Straker and to restore into legislative form the effect of the 1857 Act, as well as to recognize modern methods of production and display of sound and pictures, that there were then enacted amendments to the 1959 Act, by the Obscene Publications Act 1964. 24. Section 2 of that Act provided that :
25. The purpose of that amendment is amply summarized in the notes to that section in Halsbury's Statutes of England and Wales, Fourth Edition (1997), Vol.12, page 301 :
26. The Control of Obscene and Indecent Articles Ordinance (Cap.390) was enacted in 1987. It is said to be "an amalgam of comparable legislation in New Zealand and the U.K." (see an analysis of its history in “The Annotated Ordinances of Hong Kong", Butterworth, 1999). The Tribunal is said to resemble the Indecent Publications Tribunal established by New Zealand, and the offences involving the element of publication are based on the 1959 and 1964 U.K. Acts. One can see the thrust of the 1964 English amendments, in particular section 2, reflected in the Ordinance in sections 2(4) and (5). 27. In an analysis of the Ordinance shortly after its enactment, the intent of sections 2(4) and (5) was described as follows :
(see "The Control of Obscene and Indecent Articles Ordinance 1987", Johannes Chan (1987) 17 HKLJ 288, 293.) 28. Mr McCoy SC would say that, for the purpose of deciding what it is the Tribunal is entitled to address, that analysis is too broad. His argument, if I understand it correctly, is along these lines : that the function of the Tribunal on the one hand, and the function of the magistrate who tries a prosecution under section 21, on the other, are quite different and each is exclusive, and they are not permitted to overlap one with the other. The Tribunal's function is to determine whether or not an article is obscene. That is never the function of a magistrate; it is the exclusive function of the Tribunal, and section 29 says precisely that. By the same token, he argues, the function of a magistrate is to say whether it is proved that a defendant has or has not published, or possessed for the purpose of publication, or imported for the purpose of publication, an article which the Tribunal has decided is obscene; and it is only once publication becomes an issue - which it can only become before the magistrate - that sections 2(4) and 2(5) can come into play. Only then is a defendant precluded from saying that the article is but a means of reproduction and is not itself intended for sale or distribution; for section 2(5) prevents him from deploying such a defence. He publishes even if the item he sold, or to be sold or shown, is an article solely for reproduction purposes. All a Tribunal can lawfully do is look at an article within the definition of section 2(1), and say whether such an article is obscene; it is not touched by, and cannot take into account, the provisions of sections 2(4) and (5). 29. I think, with respect, that the argument is flawed. The question of intended publication is not outwith the province of the Tribunal's task. The Tribunal is required by the terms of section 10(1), in determining whether an article is obscene, to have regard "in the case of an article [to] the person 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". It follows that it is bound to ask itself first whether an article is capable of publication. If it were then to say to itself that it could not however examine a stamper, or the pictures which are recorded by a stamper, because a stamper is merely an object intended to be used for the purpose of manufacturing or reproducing an article contemplated by section 2(1), then it would render sections 2(4) and (5) entirely otiose and would defeat the evident intention of the Ordinance. It would follow that there could then never be a circumstance in which possession of a thing intended solely for the purpose of manufacturing or reproducing an article - such as a stencil or a mould - could be the subject of consideration by a magistrate. He could never consider whether, for example, an obviously obscene stencil was possessed for the purpose of publication, because the stencil itself could never be placed before him as an obscene object, because as an object for the purpose of reproducing an article, the stencil cannot be examined by the Tribunal under sections 13 or 29, and therefore could never be held to be obscene. The problem with Mr McCoy's argument is that it ignores the point that the fact and manner of publication is, as counsel for the Crown put it in Straker, a necessary ingredient of obscenity. Conclusion 30. A stamper is an article because it is a disc, and also because, in the case of video discs, it is a record of a picture. If its custodian possesses it for the purpose of producing compact discs which are to be sold, or distributed, or shown to the public, then he intends to publish the record of that film; in other words the "positive" of the negative which is constituted by the stamper itself. The fact that the information housed by the stamper is in digital form and in inverse form to that in the master original and to that in the intended final product, does not, for reasons I have rehearsed, preclude it from classification as obscene. The contrary argument if successful would, in my judgment, undermine the clear intention of the legislature in its enactment of this Ordinance, and is an argument which runs contrary to authority. I am of the further opinion that a vehicle for reproduction, such as a stamper, is within the Ordinance's contemplation as capable of publication, and that the Tribunal is entitled to examine it and the information which it houses, including the positive manifestation of that information, and to render a classification of that article, or vehicle. 31. I am satisfied, therefore, that a stamper is an article as defined by section 2 of the Ordinance; and that the Tribunal had jurisdiction to classify it as obscene under the powers conferred upon the Tribunal by sections 8 and 29 of the Ordinance. Accordingly, the applications to quash the Tribunal's decision that the nine stampers were articles within the Ordinance, and to declare that it had no jurisdiction to classify the stampers, are each dismissed. 32. There will be a costs order nisi that the applicants shall pay to the respondents their costs of and occasioned by this motion, such costs to be taxed, if not agreed.
Representation: Mr McCoy, SC and Miss Wendy Lee, inst'd by M/s Wong and Yip, for the Applicants Mr Wesley Wong, SGC of Department of Justice, for the Respondents |