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Following is a question by the Hon Lau Kong-wah and a written reply by the Secretary for Commerce, Industry and Technology, Mr Joseph W P Wong, in the Legislative Council today (May 10):
Question:
Regarding the classification of articles under the Control of Obscene and Indecent Articles Ordinance (Cap. 390) by the Obscene Articles Tribunal (OAT), will the Government inform this Council of:
(a) the standards used by OAT for classification of articles, and whether these standards are based on the relevant international standards; if not, the reasons for that;
(b) the specific procedure currently adopted by OAT in classifying articles, and the measures in place to ensure that the composition of the OAT is broadly representative; and
(c) the number of appeals to OAT against its classification in each of the past three years and, among such appeals, the number of those allowed?
Reply:
Madam President,
According to the Control of Obscene and Indecent Articles Ordinance (the Ordinance) (Cap. 390), an Obscene Articles Tribunal (Tribunal) of the Judiciary has exclusive jurisdiction to determine for the purposes of the Ordinance whether any article is obscene or indecent; and any matter that is publicly displayed is indecent.
The author, printer, manufacturer, publisher, importer, distributor or owner of the copyright of any article or any person who commissions the design, production or publication of any article may, by application in the prescribed form, submit that article to a Tribunal for classification. In addition, the Secretary for Justice and any public officer authorised in that regard by the Chief Secretary for Administration, including relevant officers of the Television and Entertainment Licensing Authority (TELA), may, by application in the prescribed form, submit any article to a Tribunal for classification. A Tribunal does not solicit any articles for classification.
A Tribunal shall make an interim classification in respect of any article submitted to it. Where a Tribunal makes an interim classification in respect of an article, any person who submitted, or would have been entitled to submit, the article may request a Tribunal to review that interim classification at a full hearing if he is not satisfied with that interim classification. For example, if TELA has submitted an article suspected of breaching the Ordinance for classification by a Tribunal and considers the interim classification inappropriate, it may request a Tribunal to review that interim classification at a full hearing. In the past month, TELA requested review of the interim classifications of the covers of three weekly entertainment magazines into Class I, i.e., neither obscene nor indecent.
The question relates to the work of the Tribunals of the Judiciary. We have consulted the Judiciary on the following reply.
(i) In classifying an article, a Tribunal is required by section 10 of the Ordinance, to have regard to:
(a) the standards of morality, decency and propriety that are generally accepted by reasonable members of the community;
(b) the dominant overall effect of an article or matter;
(c) the persons, classes of persons, or age groups intended or likely to be targeted by an article's publication;
(d) in the case of matter publicly displayed, the location of such display and the persons, classes of persons, or age groups likely to view it; and
(e) whether the article or matter has an honest purpose or whether instead it seeks to disguise unacceptable material.
(ii) The procedure for classifying articles by a Tribunal is set out in sections 13 and 14 of the Ordinance.
A Tribunal consists of the presiding magistrate and normally two adjudicators selected randomly by computer from the panel of adjudicators. The panel currently has about 300 adjudicators who come from many walks of life.
(iii) The Tribunals conducted ten reviews under section 15 of the Ordinance of their interim classifications in 2003, four reviews in 2004, and eight reviews in 2005. In all such reviews, the Tribunals confirmed their interim classifications.
In 2003, there was one case of reconsideration under section 17 of the Ordinance by a Tribunal of its interim classification. The Tribunal confirmed its decision. In 2004, there was one case of reconsideration and the Tribunal altered its interim classification from Class II (indecent) to Class I (neither obscene nor indecent). There was no request for reconsideration in 2005.
A party may appeal on a point of law to the Court of First Instance of the High Court against the decision of a Tribunal. In the past three years, there was one appeal each in the years 2003 and 2004. The appeal lodged in 2003 is still in progress and the one in 2004 has been adjourned sine die.
Ends/Wednesday, May 10, 2006
Issued at HKT 12:39
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