Oriental Daily Publisher Limited v Commissioner for Television and Entertainment Authority

1
Oriental Daily Publisher Limited v Commissioner
for Television and Entertainment Authority

• JMSC6022 Media Law
• Matt Ho
• The University of Hong Kong
• November 2003

2
Obscene Articles Tribunal

• Set up in 1987 under the Control of Obscene and
  Indecent Articles Ordinance, Chapter 390
• Classifies articles, ss2(2) and (3)
• In the course of any civil or criminal
  proceedings, determine whether
• the article is obscene or indecent
• the matter is indecent
• the publication of the article or the public
  display of the matter is intended for the public
  good.
• Except films

3
Classification

• Neither obscene nor indecent
• Indecent
• Obscene
• Obscenity and indecency includes
• Violence
• Depravity
• Repulsiveness

4
Obscene

• A thing is obscene if by reason of obscenity it
  is not suitable to be published to any person

5
Indecent

• A thing is indecent if by reason of indecency it
  is not suitable to be published to a juvenile,
  that is persons under the age of 18

6
Case Background

• On 29th June 1996, the Appellant published a
  feature article entitled Beautiful and sensuous
  like a picture (????) at page A3 of the Oriental
  Daily News
• 10 cm x 15 cm, occupying about 7 of the page
• Inside International News page
• Story of a human body painting exhibition was
  performed on Friday at the capital, Seoul by a
  South Korean female model.

7
Case Background (2)

• Beautiful and sensuous like a picture (contd)
• The feature consisted of a photograph with a
  small strip of words on the side.
• The photograph was of a naked woman showing her
  body from the knees up. Her face and parts of her
  body were painted with patterns.
• Her breasts were exposed but the nipples had been
  obscured by opaque squares which had been applied
  by photographic technique.
• Her pubic area was covered by a long piece of
  material she was holding.

8
Case Background (3)

• On 30th June 1996 it published a feature article
  entitled Two naked pretty girls dancing (????)
  and a feature article entitled In a record shop
  in Australia, free CD gift to naked customers
  (??????????CD)at page A17 of the Oriental Daily
  News.

9
Case Background (4)

• Inside Lifestyle Portrayals page
• Two naked pretty girls dancing
• about 22 cm x 13 cm, occupying just under 15 of
  the page
• Story about, two naked models were performing to
  publicize in a hotel at Seoul on Friday to
  celebrate the formation of the Korea Naked Model
  Association
• A photograph showing two women dancing
• It showed their naked upper bodies, with the
  faces of both women and the upper chest of the
  woman nearest to the camera painted with some
  patterns.

10
Case Background (5)

• Two naked pretty girls dancing
• The breasts of the woman in front were uncovered
  but the nipples had been obscured by applied
  opaque squares.
• The right breast of the woman behind her could be
  seen but not the nipple.

11
Case Background (6)

• In a record shop in Australia, free CD gift to
  naked customers
• About 30 cm x 10 cm, occupying about 15 of the
  page
• Story about an annual naked shopping day was held
  on Saturday at a record shop in Melbourne, naked
  customers were given a free CD and had a chance
  of winning a free trip

12
Case Background (7)

• 3 photographs
• exposed buttocks of two women and one of the
  breasts of a third women with the nipples
  obscured by an applied opaque square in the
  record shop
• a naked man and woman. The man's upper body
  appeared in profile with him holding a cigar in
  his left hand. The woman's upper body was exposed
  from her knees upward but the CD disc she was
  holding hid her pubic area
• side profile of the upper part of a woman's body.
  She was looking at CDs on the shelf. Her left
  breast was shown with the nipple obscured by an
  applied opaque square

13
Tribunals Conclusion

• both feature articles were indecent
• 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

14
Indecent because

• 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

15
Indecent because(2)

• the dominant effect of each and every photograph
  as a whole in these two cases is indecent

16
Indecent because(3)

• by reason of indecency each and every photograph
  is not suitable to published to a juvenile

17
Appeallants Grounds

• Wednesbury unreasonable
• Failed to properly determine the exhibits in
  accordance with section 10 of the Ordinance
• Failed to give any reason for the decisions, but
  just reproduced the statutory formula.

18
Court of First Instance

• Walley Yeung J
• The Ordinance gives the Tribunal the exclusive
  jurisdiction to determine the decency or
  otherwise of any article,s29
• A party may appeal to the High Court against a
  decision of the Tribunal only on a point of law,
  s30(1)

19
Court of First Instance (2)

• Disagree on the view of Finlay J. in Eastern
  Express Publisher Ltd. v. Obscene Articles
  Tribunal 1995
• Whether an article is indecent of otherwise is an
  extremely abstract matter.
• To expect the Tribunal to give detailed reasons
  will imposed an impossible task on the Tribunal.
• Those reasons are adequate reasons to support
  their conclusion

20
Court of Appeal

• Patrick Chan(CJ), Michael Wong J and K.K. Pang J
• Held the Obscene Articles Tribunal is under a
  duty to give reasons in deciding whether an
  article is obscene or indecent.
• There is a duty when making both final
  classification under section 15 and when making
  determinations under section 29.

21
Court of Appeal (2)

• Concepts of obscenity and indecency are
  notoriously abstract concepts and involve value
  judgments which are difficult to express
• The articles in question are indecent is
  overwhelming and the photographs spoke for
  themselves.
• In such circumstances, the Tribunal's reasons
  were adequate.
• The reasons were adequate to meet the
  circumstances of the case.

22
Court of Final Appeal

• Chief Justice Li, Litton PJ, Ching PJ, Bokhary PJ
  and Sir Anthony Mason NPJ
• At issue whether the Tribunal had properly
  discharged the duty in this case.

23
Provisions on Reasons

• Any point of law arising during any proceedings
  before a Tribunal shall be determined by the
  presiding magistrate who shall give reasons
  therefor in writing, s7(3)
• Subject to section 7(3), the Tribunal shall not
  be required to give any reasons for any interim
  classification, s14(3)(a)

24
Duty to Give Reasons

• Implication as a matter of statutory construction
• Arise under the common law
• Fairness demand that the Tribunal should give
  reasons
• Lord Bridge in Lloyd v McMahon 1987 AC 625
  principles of procedural fairness

25
Duty to Give Reasons (2)

• Lord Mustill in R. v. Home Secretary, Ex parte
  Doody 1994 1 AC 531 in the recent cases on
  judicial review a perceptible trend towards an
  insistence on greater openness of decision making
  and spoke of a continuing momentum

26
Duty to Give Reasons (3)

• Benefits
• impose desirable intellectual discipline and
  concentrate attention on the relevant issues
• assist in demonstrating to the parties that the
  Tribunal has carried out its task properly and
  would enable them to decide on the appropriate
  course of action

27
Duty to Give Reasons (4)

• Benefits (contd)
• promote and enhance consistency in its decision
  making and assist the law enforcement and
  prosecuting authorities
• demonstrate to the community that the Tribunal is
  functioning properly and this would engender
  public confidence

28
Adequacy of Reasons

• Where there is a duty to give reasons, it must be
  discharged by giving adequate reasons
• What would amount to adequate reasons for a
  decision would depend on
• the context in which the decision maker is
  operating and
• the circumstances of the case in question

29
Reasons Given Should

• Show that the Tribunal has addressed the
  substantial issues before it and show why the
  Tribunal has come to its decision

30
Reasons Given Should (2)

• Where the contents of the articles in question
  would virtually speak for themselves, by
  describing the contents without much more
• Otherwise, merely recites the statutory
  guidelines in section 10 would not normally be
  adequate.
• Such statements would in effect assert
  conclusions and would not reveal why the Tribunal
  has come to such conclusions

31
Reasons Given Should(3)

• May not require great elaboration and may be
  brief. It is only when they are defective in
  substance that they should be considered
  inadequate.

32
Reasons Given Should (4)

• where a point of law is raised the point has to
  be decided by the presiding magistrate and the
  statute expressly requires reasons to be given in
  writing. See section 7(3).
• findings of fact,
• the point of law at issue and
• the process of reasoning leading to the conclusion

33
Reasons Given Should(5)

• Bokhary PJ
• Simply saying that an article is obscene or
  indecent because it falls on the wrong side of
  the line drawn by the relevant statutory criteria
  is no more than announcing a conclusion

34
Reasons Given Should (6)

• Bokhary PJ (contd)
• Justification for making the Tribunal's task more
  onerous
• restrictions on publication in a free and
  well-ordered society
• focus the mind of any Tribunal
• openness and consistency
• the extent is not as great as some people may be
  disposed to believe

35
On Abstract Concepts

• We are not in the realm of inexpressible value
  judgments
• Waverley Publishing Co Ltd v Comptroller of
  Customs 1980 1 NZLR 631 Indecent Publications
  Act illustrate how reasons could be formulated
  when such concepts are involved
• Section 10 of the Film Censorship Ordinance, Cap.
  392

36
On Tribunals Reasons Given

• Inadequate to discharge the Tribunal's duty
• They are conclusions rather than reasons.

37
Relief

• The Court, being unanimous,
• allows this appeal,
• grants an order of certiorari quashing the
  Tribunal's decision and
• orders costs of the appeal to this Court, the
  appeal to the Court of Appeal and the proceedings
  before the Judge in favour of the appellant

38
Discussion

• Comparing obscenity and indecency with other
  potentially abstract or arbitary concepts,
  like national security, is it desirable to make
  laws that leave much room for the court to
  determine whether a person falls within such
  categories or otherwise?