The Sun News Publisher Ltd and Another v. Commissioner for Television and Entertainment Licensing Authority

HCAL 50/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 50 OF 2006

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BETWEEN

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AND

HCAL 77/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 77 OF 2006

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BETWEEN

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(Heard Together)

Before: Hon Lam J in Court

Date of Hearing: 15 September 2006

Date of Judgment: 13 October 2006

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J U D G M E N T

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1.On 2 December 2005, the Oriental Daily newspaper contained an article with the heading “Kelly Brook parties wildly on small island” at p.C21.  There were 4 photographs in the article together with a text reporting a holiday trip of the English model and movie star Kelly Brook and her boy friend at a Carribean island.  The article was classified by the Obscene Articles Tribunal as indecent.  The Tribunal described the photographs and their captions as follows in its reasons for decision (the English translation was prepared by the Applicants),

“The article in Oriental Daily includes the text and four photographs heading “Kelly Brook’s Wild Party on Small Island”.  In the middle of the article was a subheading in blue and in bold: “Topless Parading”.  On the right hand side of the headings in a color photograph approximately 6½” x 5½” in size, showing the half naked female star with another male celebrity.  Next to the photograph is a caption which reads “Naked Kelly’s figure is so gorgeous, the boyfriend had undone his trousers button”.  Two out of the three remaining photographs are approximately 1½” x 1½”, depicting the 2 starts from their upper torsos.  The remaining one is sized approximately 5½” x 2½” showing the two acting playfully on the beach.

2.It should be added that in the photo showing the half naked female star, the nipples were obscured by pixels although most of the outline of the breasts are visible.

3.On the same day, the Sun Daily carried a similar report.  The article has 2 photographs, one of them being the same as the half naked picture in the Oriental Daily article (with the same technique applied to obscure the nipples).  The photographs and captions were described by the Tribunal as follows,

“The article posted in The Sun includes text and 2 photographs.  Two-thirds of the page is occupied by the same photograph as posted in Oriental Daily of the half naked star.  The photograph is approximately 10½” x 8½”.  The caption reads “Kelly Brook who was voted “Best Figure” last month, can’t wait to show off her 36, 24, 35 luscious body”.  To the top left of the photo is the heading “Early Caribbean Honeymoon” and to the bottom left corner was a much larger caption of “Kelly Brook, nudes you to death!”.  On the bottom right of the article is another picture sized approximately 6” x 4” showing the two kissing in the sea.”

4.That article was also classified by the Tribunal as indecent.

5.The Applicants lodged an appeal against such classifications on 13 April 2006.  In view of the reasons given in Three Weekly Ltd v Obscene Articles Tribunal  HCAL 42 & 43 of 2003, 29 June 2006, the grounds advanced by the Applicants should be considered in the context of a judicial review.  The Applicants therefore applied for judicial review on 10 July 2006 with leave granted on 14 July 2006.

6.At the substantive hearing, the Applicants did not advance any arguments in the appeal and counsel quite rightly focused on the judicial review.  For reasons given in Three Weekly on the dichotomy between an appeal from the Tribunal and a judicial review, I dismiss the appeal.

7.Leading counsel for the Applicants Mr Cheng SC advanced several grounds in the Notice of Application.  I shall deal with them under three different headings.

Nudity and indecency

8.In its reasons for decision, the Tribunal said the following in the context of Section 10(1)(a) of the Control of Obscene and Indecent Articles Ordinance [“Ordinance”],

“審裁處認為以現今普遍接受的道德禮教標準來看，一般合理的社會人士未能接受在讀者包括任何年齡人士的大眾物品展示女性裸露的圖畫，而以不露點（女性的乳頭、乳暈）的方式在大眾刊物內描繪女性的乳房，並不表示一定會被合理的社會人士接受。審裁處的考慮是包括裸露的程度，在物品所佔的面積，物品的文字。裸露整體上產生的顯著效果，可能觀看物品的對象及物品的真正目的。”

9.It was translated into English by the Applicants (and there is no objection to the translation by the Respondent) as follows,

“The Tribunal feels that based on the accepted moral standard of morality and decency, a reasonable member of the community would not accept photographs of naked women being published in popular articles where the readership include people of all ages.  Reasonable members of community will not necessarily accept photographs of naked women even when their nipples or areolae are not exposed.  The Tribunal will consider the level of nudity, the size of the article and the text, the dominant effect of the nudity and the target readers and the purpose of the article.”

10.Mr Cheng submitted that the first sentence in the English translation is clearly wrong in law and he cited the decision of Findlay J in Eastern Express Publisher Ltd v Obscene Articles Tribunal [1995] 3 HKC 145.

11.This point has not been specifically referred to in the Notice of Application and Mr Cheng had to put forward this as supporting his Ground (7) in the Notice.  Ms Chan did not take any objection.  As it is essentially a point for submission and no further evidence is required, I think it is fair to entertain the same.

12.Ms Chan accepted that it would be wrong in law to hold that publication of nudity to a readership of all ages must be indecent.  She submitted that the subsequent paragraphs in the Tribunal’s Reasons for Decision show that the Tribunal did not make that mistake.

13.The Tribunal followed the guidance under Section 10 of the Ordinance before coming to a conclusion on the classifications.  Reading the Reasons for Decision as a whole, I do not think the Tribunal regarded nudity per se as indecent.  I shall analyse the rationale of the Tribunal at greater length below.  In a nutshell, the Tribunal found that the articles had a pornographic effect by drawing attention of the readers to the naked upper body of Miss Brook.

14.Whilst it is unfortunate that the Tribunal expressed itself in the way it did in that part of the Reasons, I think the Tribunal’s focus of concern in that paragraph was about the manner of depiction of the female breast and its overall effect.  In this connection, there is a subtle difference between the original version of the Reasons and the English translation provided by the Applicants.  Ground (7) as argued by Mr Cheng cannot succeed.  

Honest purpose

15.The Applicants argued before the Tribunal that the purpose of the articles was to demonstrate the intimate relationship between Miss Brook and her boyfriend and the photographs gave a more vivid depiction than the text.  Three editorial staff provided witness statements to the Tribunal to confirm that and all three of them were available to give viva voce evidence at the hearing before the Tribunal.  After hearing evidence from one witness, the Tribunal indicated it would not need to hear viva voce evidence from the other two witnesses and their witness statements could be admitted as evidence although their contents were disputed.

16.The Tribunal dealt with this question in Paragraph 8(4) of its Reasons for Decision.  In particular, it said under Paragraph 8(4)(c),

“申請人指出刊登物品旨在顯示兩位國際明星之親密關係，已達到女星可以在男星面前裸露上身，但以上的主旨，不但從沒有在物品內，以文字提及，讀者小心閱讀物品，亦不能從字裹行間看到所謂的主旨。讀者看到的是一張裸照，讀到的是「裸你命」，「半裸大解放」，「送波餅扭作一團」，「裸胸招搖」，「36、24、35的索爆身材」一類的挑逗性標題及字句，吸引讀者集中注意女星的裸體和乳房。審裁處認為物品本身的重點在裸體方面，以展露女星胴體吸引讀者，而照片中女星的裸露程度配以「不雅」描繪，已超越一般合理人士普遍接受的道德禮教標準。審裁處認為物品之刊載並沒有真正誠實目的。”

17.Translated into English, this reads,

“The applicants point out that the theme of the article was to show that the relationship of the two international celebrities was so close to the extent that the female celebrity was able to go topless in front of the male.  But not only was it not mentioned in the text of the article, a careful reader would be unable to detect this theme reading between the lines.  What the reader sees and reads are such headings and phrases as “nudes you to death”, “half-clothed exposed”, “breast pressed up against … hugging”, “toplessly parading”, 36, 24, 35 luscious body, which are intended to focus the reader’s attention on the breast and body of the female celebrity.  The Tribunal is of the view that the focal point of the article is on nudity and that the article’s intention was to use the exposed female body to capture the attention of the readers.  The extent of the exposure, coupled with the “indecent” description has already gone beyond the moral standards that are generally accepted by reasonable members of the community.  The Tribunal takes the view that the article has no honest purpose.”  (Emphasis supplied).

18.Mr Cheng contended that the Tribunal failed to consider the question of honest purpose properly.  Counsel submitted that in substance, the Tribunal’s approach was that because the dominant effect of the articles is indecent, it could not have an honest purpose.  Counsel placed reliance on the following dicta of Findlay J in Eastern Express Publisher Ltd v Obscene Articles Tribunal [1995] 3 HKC 145 at p.156F to I,

“He says, ‘There can be no honest purpose in publishing pictures which are clearly indecent and especially in a newspaper’… this approach jumps the gun; one has to take into account the factors mentioned in Section 10, including where the article is, or is intended or is likely to be published, and whether or not there is an honest purpose, before deciding whether the article should be classified as indecent for the purposes of putting it in class II.  One does not decide that pictures are indecent for the purpose of classifying the article, and then decide that there can be no honest purpose in publishing them, especially in a newspaper.  That approach is clearly wrong in law.” 

19.I think it is necessary to refer back to Section 10 of the Ordinance before we consider how it should be applied in the present context.  The section provides,

“(1)   In determining whether an article is obscene or indecent or whether any matter publicly displayed is indecent, or in classifying an article, 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.”

20.In my judgment, the section sets out matters that the Tribunal shall have regard to in making a classification.  However, the section does not give much guidance on how the weighing of these matters is to be performed.  For example, it does not say an honest purpose must necessarily exonerate an article from a classification of indecency or obscenity.  Neither does it say that the dominant effect of an article must outweigh an honest purpose.

21.It must also be appreciated that there could be overlapping or interaction between each of these matters.  In considering what are the acceptable standards of morality, decency and propriety, the Tribunal cannot assess that in a vacuum.  It must have to regard to likely readership or viewers of the article as provided under (c) and (d) since these are clearly relevant considerations for the reasonable members of the community.

22.More pertinent to the argument advanced before me, there could be interaction between the dominant effect of an article and the assessment of the honest purpose of an article.  This is acknowledged by Mr Cheng.  There is no definition for honest purpose in the Ordinance.  In sub-section (e), an honest purpose is contrasted with a camouflage designed to render acceptable any part of the article.  In the Chinese version of the Ordinance, “honest purpose” is rendered as “真正目的”.  It does not refer to a proper purpose “正當目的”.  Hence, the question to be considered under sub-section (e) is whether the professed purpose of an article is its real purpose as opposed to a camouflage.  If the professed purpose is “A” and the underlying purpose is also “A”, it is an honest purpose.  If the professed purpose is “A” and the underlying purpose is “B”, it is a camouflage.  Purpose “A” could be any purpose and it would not cease to be an honest purpose under sub-section (e) because it is immoral.  Neither would “B” become an honest purpose just because it is moral if the professed purpose is “A”.

23.Two consequences follow from this construction of sub-section (e).  First, as mentioned, in deciding whether the professed purpose is honest or a mere camouflage, the dominant effect must be relevant.  If the dominant effect is so obviously at odds with the professed purpose, the Tribunal is surely entitled to question whether that is in fact the real purpose.

24.Second, even if the purpose is an honest one in the sub-section (e) sense, it does not follow necessarily that article cannot be indecent or obscene.  The classification can only be made when everything is taken into account.

25.Coming back to Mr Cheng’s criticism of the Reasons of the Tribunal, I agree that by referring to the focal point of the articles, the Tribunal did take into account of the dominant effect in Paragraph 8(4)(c).  But I do not see any error of law in that regard.  As I have endeavoured to explain, this is permissible.  It would have been better if the Tribunal chose some other wordings to describe the description given to the exposure of the body instead of using the word “不雅”.  On the whole I do not consider that the Tribunal had jumped the gun as in the case of Eastern Express.

26.In essence, the Tribunal made a finding that the purpose of the articles vouched for by the editorial staff was not the real purpose because such professed purpose is so inconsistent with the contents of the articles as highlighted by the Tribunal.

27.Mr Cheng submitted that this approach is flawed in the present instance because the editorial staff had not been cross-examined by reference to the headings and captions that the Tribunal pinpointed in Paragraph 8(4)(c).  He referred to the rule in Browne v Dunn (1894) 6 R 67.

28.Strict rule of evidence does not apply to classification proceedings, see Section 11(b) of the Ordinance.  However, the rule in Browne v Dunn (1894) 6 R 67 is more a rule about procedural fairness than a rule on  admissibility of evidence, see the analysis of Reyes J in Kaifull Investments Ltd v Commissioner of Inland Revenue HCIA 8 of 2001, 4 April 2002.

29.In the context of judicial review of administrative decision, the notion of procedural fairness is important.  Yet what fairness requires has to be determined by reference to the circumstances surrounding the relevant decision.  Lord Bridge had the following to say in Lloyd v McMahon [1987] 1 AC 625 at p.702H to 703A,

“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 statue 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.”

30.In R v Hampshire County Council  [2002] Env LR 198 at [68], Sullivan J said,

“Whether a particular procedure is ‘fair’ will depend upon all the circumstances, including the nature of the claimant’s interest, the seriousness of the matter for him and the nature of any matters in dispute.”

31.The Tribunal laid much emphasis on the captions and the headings in the articles.  Unfortunately, the Tribunal did not say much about the contents in the text.  Nor did the Tribunal say much about the evidence of the defence witnesses as regards how the photographs were selected with the more provocative pictures discarded.

32.Having read the text in both articles, I do not find it as clear cut as the Tribunal did in its conclusion that the headings and captions point conclusively to the lack of honest purpose.  But it is a matter that I think I should defer to the view of the specialist tribunal.  It is not the function of this court in the exercise of its jurisdiction by way of judicial review to substitute the Tribunal’s finding by its own view on the facts.  I am not prepared to say that the finding of the Tribunal is Wednesbury unreasonable. 

33.In Ming Pao Newspapers Ltd v Commissioner for Television and Entertainment Authority (1997) 7 HKPLR 314, the late Jerome Chan J put forward a necessity test in the application of Section 10(1)(e) at p.321G to I,

“However, it would not mean that publishers are free to publish all forms of nudity simply by juxtaposing it to a brief text describing the nudity.  Unrestricted publication of inappropriate nudity is restricted by the application of a necessity test in another manner.  Though the necessity test ought not be applied in the consideration of use of photograph per se, it could be applied against the manner of exposing the nudity and the extent of nudity in the photograph that would be reasonably justified and required by the text.  Depicting nudity in a photograph in an excessive manner unwarranted and not required by the text reporting the news would not give legitimacy to the nudity under the pretext of any honest purpose.”

34.The reasons given by the Tribunal in Paragraph 8(4)(c) could be regarded as an application of the necessity test in a modified form, viz. referring to the manner in which nudity was emphasized in the captions and headings so as “to focus the reader’s attention on the breast and body of the female celebrity”.

35.The issue can be narrowed down to this: whether in the context of classification proceedings fairness requires the defence witnesses be given an opportunity to put forward an explanation about these captions and headings by way of cross-examination before the Tribunal rejected their evidence about the purpose of the articles.

36.I have considered the nature of classification proceedings and the statutory scheme relating thereto in Three Weekly and I shall not repeat what I have already said.  Having regard to the statutory scheme, the effect the decision, what happened in the proceedings, the issue in dispute and the Applicants’ interest in the matter, I conclude that fairness does not require the cross-examination of the defence witnesses to draw their attention to the possible inference that the Tribunal might draw from the captions and headings.  In particular, I bear the following factors in mind,

(a) Classification proceedings are administrative in nature and it is not a determination of criminal charge.  Nor is it a determination of rights and obligations in a suit at law, see Three Weekly;

(b) The Applicants will have a fresh opportunity to deal with the question of indecency in the criminal trial;

(c) There is a power to reconsider a classification under Section 17 and the Applicants can resort to that if sufficiently cogent reasons can be advanced, e.g. if the Applicants can put forward some credible explanations for the headings and captions to further their case on honest purpose;

(d) The classification has no relevance in the criminal trial;

(e) The headings and captions were part of the articles and the Applicants could and should have dealt with those in their witness statements if they wished to put forward a case of honest purpose for the Tribunal’s consideration;

(f) At the hearing, it was clear to all the parties that the truth of the contents of the witness statements were contested;

(g) At the hearing, the representative of the Commissioner made submissions with reference to the headings and captions.  The Applicants knew that these were relied on as evidence against the Applicants.  The Applicants could and should apply for further evidence to be put forward if they had a good explanation to rebut the attack.

37.Therefore the challenge based on Grounds (3), (4), (5) and (6) in the Notice of Application fails.

Comparables

38.Apple Daily published on 2 December 2005 an article about the same piece of news in its entertainment page.  That article also had a photograph showing Miss Brook half naked.  The size of that photograph is about 2” x 5.5”.  The nipples in that photograph were obscured by pixels.  The text also has reference to exposure of her body parts although it is much less provocative, explicit and graphic in terms of the descriptions of the body parts as compared with the articles of Oriental Daily and Sun Daily.  The Apple Daily article was classified as Category I (viz. neither indecent nor obscene) by the Tribunal.

39.At the hearing before the Tribunal, the Applicants referred to the Apple Daily article and quite a number of other articles classified by the Tribunal as Category I as comparables for their articles.  Those other articles were basically articles in magazines and the defence witnesses referred to them as illustrations of the prevalent standard of morality, decency and propriety adopted by the Tribunal in terms of photographs of nudity with sensitive parts obscured by pixel techniques.

40.The Tribunal dealt with this submission very briefly.  At Paragraph 8(4) of its Reasons, the Tribunal said,

“申請人以數宗審裁處曾經評級個案的圖片名為顯示現今社會人士所接受的道德禮教標準，實則是以其他個案的圖片比較今次審核的物品。審裁處認為每樣物品的內容不同，性質各異，所以評定物品類別時應該根據物品的個別因素，獨立考慮有關物品，而不應以其他同類的物品作參考比較。”

41.It was translated into English as,

“The applicant used photographs depicted in several previous Tribunal cases to illustrate the moral standards of a reasonable person today.  In essence, the applicant is comparing the photographs depicted in the previous cases to this one.  The Tribunal believes that each case is different and therefore when determining categories it must evaluate the articles independently and not compare it to similar material.”

42.Mr Cheng accepted that each article must be considered against its own background and circumstances.  However, counsel submitted that it was wrong for the Tribunal to disregard the comparables altogether.  Counsel stressed the importance of consistency in the classifications by the Tribunal.  Journalists can only have guidance from previous classifications if the Tribunal acts consistently.

43.Miss Chan contended each case must be decided on its merits and by reason of the membership of the adjudicators in the Tribunal, they should be taken as well versed with the standards of morality, decency and propriety that are generally accepted by reasonable members of the community.  She submitted it would be futile to make any reference to any comparable as the Respondent could likewise pinpoint many cases where articles of similar nature have been classified as indecent.

44.Apart from my own decision in Three Weekly, counsel have not referred me to any authorities that had directly ruled on the admissibility of classification of other articles.  Miss Chan referred to the decision of Deputy Judge Patrick Chan (as he then was) in Sham Kow-ling v Obscene Articles Tribunal (1992) 2 HKPLR 669.  The points addressed by His Lordship are slightly different from the one I have to deal with.  Previous issues of a comic book were sought to be admitted in that case on two bases (see p.676), none of which are relevant for present purposes.  However, reference was made in that judgment to the law as laid down in R v Reiter [1954] 2 QB 16 and Gallatly v Laird [1953] SC(J) 16.  His Lordship observed that the principles laid down in those cases are equally applicable in Hong Kong.

45.In Galletly v Laird [1953] SC(J) 16, the court upheld the decision of the magistrate in disallowing cross-examination and the tendering of evidence of other books for comparison purposes.  The Lord Justice-General said,

“… it seems to me to be not only intelligible but inevitable that the character of the offending books or pictures should be ascertained by the only method by which [the question of indecency or obscenity] can be ascertained, viz. by reading the books or looking at the pictures.  The book or picture itself provides the best evidence of its own indecency or obscenity or of the absence of such qualities…”

“The character of other books is a collateral issue, the exploration of which would be endless and futile.  If the books produced by the prosecution are indecent or obscene, their quality in that respect cannot be made any better by examining other books, or listening to the opinions of other people with regard to these other books.”

46.In R v Reiter [1954] 2 QB 16 at p.20-21, the Lord Chief Justice emphatically endorsed what had been said in Galletly v Laird,

“From time to time, with regard to prosecutions relating to indecent literature, questions have been raised about what the law is with regard to other evidence of comparison, and so forth.  The opinion of the High Court of Justiciary as delivered by the Lord Justice-General in Galletly v Laird puts the matter, in my opinion, as well as it can possibly be put, and this court desires to adopt every word of it.”

47.The same principles were applied recently in R v Elliott [1996] 1 CrApp R 432.  These cases are cited as good law in Archbold Hong Kong 2005, Para.33-62.

48.Hence, other articles should not be admissible for the determination of the question of indecency.  How about previous classifications? Can it be said that such classifications should be admissible as evidence of prevalent acceptable standards of morality, decency and propriety that the Tribunal is directed to have regard to?

49.In Three Weekly, I said at Para.67 of the judgment,

“In an assessment of this nature, it is quite plain that the classification of each article might involves different considerations and it is futile and unhelpful just to pinpoint one single facet of the case and compare it with another case which has completely different background.” 

50.I stand by what I said.  I acknowledge that the article of Apple Daily has a stronger resemblance with the Applicants’ articles than those the court was asked to compare in Three Weekly.  But as explained below, there are also material differences.

51.Authorities aside, I propose to examine this issue from another angle.  I would start by asking what were the substantive reasons given by the Tribunal and whether the reasons given are adequate. 

52.In Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority [1998] 4 HKC 505, the Chief Justice discussed the Tribunal’s duty to give reasons.  At p.515C to G, four benefits of a duty to give reasons were identified: (1) promote intellectual discipline and focus attention on relevant issues; (2) assure the parties that the matter has been considered properly and facilitate them in deciding whether to appeal or apply for judicial review; (3) enhance consistency in decision making and law enforcement; and (4) engender public confidence.

53.At p.515G, the Chief Justice emphasized that broad consistency in approach is important.

54.In Eastern Express Publisher Ltd v Obscene Articles Tribunal [1995] 3 HKC 145 at p.150G to H, Findlay J referred to the need to have adequate reasons from the Tribunal to facilitate the consideration of the matter on appeal.  To that, I would respectfully add that the same can be said for judicial review.  At p.150H, His Lordship said,

“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 may be brief, but a mere recitation of a statutory formula is not enough.”

55.The Chief Justice gave guidance on adequacy of reasons in Oriental Daily Publisher Ltd v Commissioner for TELA at p.515I to 517G.  Such guidance applies to classification proceedings as well (see p.517G).  Two observations by the Chief Justice are particularly pertinent in the present context.  The reasons should explain why the Tribunal has come to its conclusions on serious issues raised in the case (p.516C to D).  Decisions on indecency and obscenity are not inexpressible value judgments (p.516H) and apart from clear-cut cases, the Tribunal has to explain why it considered an article to be indecent or obscene (p.516E).

56.The articles in the present case are not obviously indecent.  As far as I can discern, in the course of going through the statutory checklist, the Tribunal put forward the following substantive reasons for its classification of the articles,

(a) Even when the nipples or areolae are not exposed, nudity may not be acceptable if it is published to a readership of all ages [Para.8(1)(b)];

(b) Having regard to the extent of exposure in the photographs and the wordings used in the headings and captions, the articles have a pornographic effect [Para.8(2)(b)];

(c) The headings and captions serve to direct the attention of the readers to the breast and body of the female celebrity [Para.8(4)(c)].

57.These reasons have to be read cumulatively in order to be meaningful.  Reason (a) only sets out a general approach.  How it is applied to the facts of this case has to be gleaned from (b) and (c).  Reason (b) is a description of certain features of the article coupled with an assertion of conclusion.  It does not explain why it is said that the articles have a pornographic effect.  One has to go to reason (c) for the answer.  The rationale of the Tribunal therefore boils down to this: the articles are indecent because they focus the attention of the readers on the breast and body of the female celebrity.

58.It is open to the Tribunal to arrive at such a decision and I do think it could be criticized as Wednesbury unreasonable.  I think the reasons given are adequate.  Having arrived at this conclusion, I shall examine whether the so-called comparables could have any relevance to this line of reasoning without engaging the Tribunal into some collateral inquiries deprecated by the authorities.

59.Since the Apple Daily article does not have the same headings and captions, its Class I classification has no significant bearing on the classification of the Applicants’ articles unless one were to engage into speculation as to how the Tribunal had assessed the effect of the text, the caption and the overall effect of the Apple Daily article.

60.All the Class I classifications relied on by the Applicants are based on interim classifications with no reasons given.  In my judgment, the broad consistency in approach emphasized by the Chief Justice cannot be fostered by making speculative comparison between the classifications for those other articles and those under challenge.  I describe it as speculative for the simple reason that there is no way to tell how the Tribunal arrived at the conclusions that those other articles should be classified as Class I.  The comparison is even more speculative than that between the Applicants’ articles and the Apple Daily article.  A comparison by reference to classification of other articles in these circumstances is not different from a comparison between different articles, a course prohibited by the authorities mentioned.

61.Therefore, I do not think any useful purpose can be served by requiring the Tribunal to go through these Class I classifications in respect of other articles.  The so-called comparables should not have been admitted as evidence.

62.It may be different if reference were made to some reasoned decisions on classification.  At least, there will not be any need to speculate and consistency as underlined by the Chief Justice can be achieved without any futile collateral inquiry.  As this question does not arise in the present case, I will leave it open.

63.Hence, the Applicants’ challenge under Grounds (1) and (2) also fails.

Results

64.For these reasons, the application for judicial review is also dismissed.

65.I also make a costs order nisi that the Applicants shall pay the costs of the Respondent in the appeal as well as the judicial review.

Mr Cheng Huan, SC, Mr Paul Leung & Mr Alan Woo, instructed by Messrs Iu, Lai & Li, for the Appellants

Miss Agnes Chan, SGC, instructed by Department of Justice, for the Respondent