The Very Public Adjudicators of the Hong Kong Obscene Articles Tribunal
In the discussions about the Chinese University Student Press indecent material case (see The Chinese University Student Press Incident In Perspective), the roles of certain adjudicators of the Hong Kong Obscene Articles Tribunal are extraordinary. Who are these people? They are presently becoming even more important than the case itself.Here is some information from the Obscene Articles Tribunal:
The Obscene Articles Tribunal, consisting of a Presiding Magistrate and two or more adjudicators, carries out two main tasks with respect to articles and matter - classification and determination.
It classifies articles submitted by such parties as authors, printers, manufacturers, publishers, importers, distributors, copyright owners or any person who commissions the design, production or publication of the articles concerned. Those who commission any aspect of an article may also submit that article for classification, as may the Secretary for Justice or any authorised public officer.
Additionally a court or magistrate may, in the course of proceedings, refer an article or matter to the Tribunal, asking it to determine whether:
- the article is obscene or indecent;
- the matter is indecent; or
- the publication of the article or the public display of the matter is intended for the public good.
Under the control of Obscene and Indecent Articles Ordinance, the Tribunal's power to classify articles effectively provides society with an effective means of interpreting in practice the notions of obscenity and indecency. Indecency is here deemed to include violence, depravity and repulsiveness.
In arriving at the determination and classification of an article, the Tribunal is called upon by law to take account of:
- the standards of morality, decency and propriety that are generally accepted by reasonable members of the community;
- the dominant overall effect of an article or matter;
- the persons, classes of persons, or age groups intended or likely to be targeted by an article's publication;
- 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
- whether the article or matter has an honest purpose or whether instead it seeks to disguise unacceptable material.
The Tribunal can classify an article as follows:
- Class I - neither obscene nor indecent;
- Class II - indecent; or
- Class III - obscene.
It is possible to file an appeal against a decision, in which case a full panel consisting of the Presiding Magistrate and four adjudicators shall be convened to consider the case.
Adjudicators form a panel and are appointed by the Chief Justice. They serve for 3 years and are eligible for re-appointment. To ensure that the standards used by the Tribunal are representative and as close to social norms as possible, adjudicators are appointed from all walks of life and sectors of society and come from different age groups, professions and occupations. Anyone wishing to become an adjudicator should contact the Communication and Technology Branch of the Commerce, Industry and Technology Bureau for details (Tel: 2189 2222).
Whereas a jury panel of one's peers in a criminal trial is derived from some broad population base (such as registered voters, or taxpayers, or registered drivers, or home owners, or combinations thereof), the adjudicators of the Obscene Articles Tribunal are self-selected volunteers (that is, you can try to sign up by calling 2189 2222). As such, I have no idea how the Tribunal can possibly be "representative and as close to social norms as possible." For me, that is the crux of my present dissatisfaction with the entire setup of Obscene Articles Tribunal, because I don't understand how I have authorized these people to represent me in any way or manner. But let us ignore my misgivings for the moment and focus on the adjudicators for the moment. Ordinarily, this would be a bunch of faceless and nameless persons, just like we never learn about the jury members in criminal Yip Hing-kwok (葉興國).
Here is a partial list of media citations collected by Daily Fongyun:
Sing Tao Daily, May 9, page A14: "Obscene Articles Tribunal adjudicator committee member Cheung Man-ping believes that the erotic page (in Chinese University Student Press) is Category II Indecent material.
Hong Kong Economic Daily, May 11, page A24: "... Adjudicators Association chairman Yip Kwok-hing and committee member Cheung Man-ping earlier pointed out that the contents of the erotic page in the Chinese Student Press should be classified as Category II Indecent material. This is believed to be a procedural mistake (for them to say so publicly) and the judgment is therefore unfair."
Hong Kong Daily News, May 13, page A05: "Adjudicator Cheung Man-ping pointed out that if the publication contains some indecent content, then the same result would prevail no matter whether just part or all of the publication was reviewed."
Oriental Daily, May 13, page A02: "Obscene and Indecent Articles Tribunal adjudicator committee chairman Yip Hing-kwok claimed that the Chinese University of Hong Kong may become the defendant in the case. However, it can apply for a review five days after the official notice. He personally think that it would be hard for them to extricate themselves. He pointed out that the Obscene Articles Tribunal ought to make the classification based up societal norms and give no special consideration for a student newspapers. Another adjudicator Cheung Man-ping pointed out that the Chinese University of Hong Kong has inescapable responsibility in this case."
Ta Kung Pao, May 13, page A06: "As one of the 321 adjudicators of the Obscene Articles Tribunal in Hong Kong, Cheung Man-ping declared yesterday at the City Forum that he did not participate in the evaluation of the Chinese University Student Press. Based upon his 13 years of experience in reviewing materials and his understanding of the relevant laws, the methods of expressions, the target readers, the places of distribution and the material effects of those pages of 'erotica' should result in the publication being classified as Category II indecent material."
Sing Pao, May 16, page A02: "Obscene Articles Tribunal adjudicators committee member Cheng Man-ping was interviewed by us yesterday and he said that in the February and March issues of the Chinese University Student Press, the survey questions, the photographs and the texts were indecent ... As for the Category I classification for the April issue, Cheung Man-ping said that there was nothing controversial or sexually arousing in that issue and therefore there was no problem."
The Standard, May 17, 2007: Obscene Article Tribunal adjudicator Mervyn Cheung Man-ping stressed that the Bible and the students' journal could not be discussed on a par. "The Bible does not contain descriptions of sexual activities that are indecent or obscene," he said.
AM730, May 17, page M01: "Obscene Articles Tribuninal adjudicators committee member Cheung Man-ping believed that the Bible is a very authoritative religious publication with billions of believers around the world and several thousand years of history. :"There is nothing wrong with the content, there is nothing about people going to bed" and therefore the complaint about indecency will not be passed."
The Sun, May 17, page A04: "Yip Hing-kwok estimates that the Television and Entertainment Licensing Authority will forward the material and the Obscene Articles Tribunal will most likely classify the Ming Pao Sunday Life re-publication of the Chinese Student University Press materials as Category II indecent material."
Ming Pao, May 17, page A04: "Adjudicator Cheung Man-ping believed that the Television and Entertainment Licensing Authority is in a dilemma with respect to the Bible. Personally, he believes that the nature of the Bible case is different from the erotic page of the Chinese University of Student Press. Therefore, he opposed the forwarding of the Bible to the Obscene Articles Tribunal for review."
Apple Daily, May 18, page A22: "Cheung Man-ping spoke to the media in his role as an adjudicator of the Obscene Articles Tribunal about the complaints against the Chinese University Student Press's erotic page and the Bible leads the public to believe that the Obscene Articles Tribunal has made a decision. This has materially damaged the confidence of the public in the judicial process."
Sing Pao, May 19, page A10: "Obscene and Indecent Articles Tribunal adjudicators committee chairman Yip Hing-kwok said that it is understandable that the government would not forward these classics to the Obscene Articles Tribunal."
Ming Pao, May 19: "Obscene Articles Tribunal adjudicator Cheung Man-ping pointed out that although the Chinese University Student Press's erotic page has been classified as Category II indecent material, there may be no prosecution. Cheung Man-ping appeared on a radio show and pointed out that if the verdict is upheld after the judicial review, the judiciary will decide on prosecution after considering the evidence."
Ta Kung Pao, May 20, page A10: "He (Cheung Man-ping) said that the students did not have malicious intent when they published the erotic pages and there was no commercial motive. Therefore, he believes that the students should not be prosecuted."
Ming Pao, May 20, page A08: "Cheung Man-ping has been an adjudicator for more than ten years. He believes that there is no restriction on the judging process of the adjudicators because the Obscene Articles Tribunal wants to arrive at a decision based upon the different personal experiences and opinions of the various adjudicators and that is different from criminal trials. The public discussions by adjudicators will not involve any issues about 'mutual influence.' The adjudicators participate in the review process to come up with an 'administrative decision.' After the Obscene Articles Tribunal arrives a decision, the Television and Entertainment Licensing Authority refers the cases to the magistrative court to determine the criminal sanctions."
Daily Fongyun states the basis for a complaint against the two named adjudicators on the Obscene Articles Tribunal:
In the <Guideline for Judiciary Conduct", section 13 states: "The judge must insure that whether inside or outside the courtroom his behavior will not reduce or give the impression that it reduces the trust in the independence of the judiciary."
Furthermore, in the <Guideline for Jury Members in Criminal Trials>, it is stated: "In order to insure that the trial is open, fair and just, the juror must not discuss the contents of the trial or the jury decision-making process with anyone, including newspaper reporters, television reporters or other media workers."
Please imagine that if before each trial in court, the judges step up and discuss whether the "charges are justified." How could the citizens retain any confidence in the independence of the judiciary?
Let us look at the precedent case (via Pandemonium):
Oriental Daily Pbulishers Ltd versus Commissioner for Television and Entertainment Licensing Authority (1998) 4 HKC 505.
「It was agreed that the Tribunal was under a duty to give reasons for its decision. At issue was whether the Tribunal satisfied this duty by merely identifying the criteria that it was obliged to consider under s 10 of the Control of Obscene Articles Ordinance (Cap 390) (the Ordinance). The further question before the Court was whether the statutory right of appeal under s 30(1) was limited to the points of law decided by the presiding magistrate under s 7(3) or whether the right to appeal encompassed judicial review grounds including that of Wednesbury unreasonableness, thus affecting the court's jurisdiction to grant the appropriate relief.」
「Where there was a duty to give reasons, it must be discharged by giving adequate reasons. What amounted to adequate reasons depended on the context in which the decision-maker was operating and the circumstances of each case. The reasons given by the Obscene Articles Tribunal should show that the Tribunal had addressed the substantial issues before it, and show why the Tribunal had come to its decision. There might be cases where the contents of the articles in question would virtually speak for themselves. In these cases, the duty to give reasons could be discharged by describing the contents without much more. Apart from this kind of case, a decision on indecency or obscenity that merely recited the statutory guidelines in s 10 of the Control of Obscene and Indecent Articles Ordinance would not normally be adequate. Whether reasons were adequate in each case was a matter to be approached sensibly. Where a point of law was raised, the reasons for a decision should usually set out the findings of fact, the point of law at issue and the process of reasoning leading to the conclusion. The reasons given in this case were inadequate to discharge the Tribunalís duty to give reasons. They were conclusions rather than reasons. They did not show that the Tribunal had addressed the issues raised and why it came to the conclusion of indecency. The pictures of naked women were not so obviously indecent that they spoke for themselves. A statutory appeal was limited to points of law decided by the presiding magistrate under s 7(3) of the Control of Obscene and Indecent Articles Ordinance. It did not encompass judicial review grounds including that of Wednesbury unreasonableness. This challenge should therefore have been brought by way of judicial review, not by appeal.」
That's fine. Instead, we are treated to the spectacle of unrelated adjudicators giving press interviews on a daily basis. What gives?
Related Links: The Ming Pao Category II Indecent Material; How Did The Obscene Articles Tribunal Get Hijacked?
Following is a question by
the Hon Martin Lee and a written reply by the Secretary for Home Affairs, Mr
Patrick Ho (in the absence of the Secretary for Commerce, Industry and
Technology), in the Legislative Council today (May 30):
I have learnt that an organisation, which was formed by Obscene Articles Tribunal (OAT) adjudicators and referred to as the "Association of Adjudicators for Obscene and Indecent Articles" by the media, had publicly expressed its views on the articles submitted to OAT for classification, and had publicly assessed the adjudication results before OAT made its adjudication. In this connection, will the Government inform this Council whether:
(a) it has studied if the above expression of views and making of assessments by the organisation may affect the fairness and justice of the judicial adjudication made by OAT; if it has studied the issue, of the results and whether it has followed up the issue; if it has not followed up the issue, the reasons for that; if it has not studied the issue, the reasons for that; and
(b) it has formulated guidelines regarding OAT adjudicators' acts such as publicly commenting on articles submitted to OAT for classification, or publicly assessing the adjudication results; if so, of the details of the guidelines; if not, whether it will consider formulating relevant guidelines?
The Administration has consulted the Judiciary and provides the reply as follows:
(a) The Association of Adjudicators for Obscene and Indecent Articles referred to by the Hon Martin Lee has no connection with the Obscene Articles Tribunal of the Judiciary.
At present, the Tribunal has 320 adjudicators on its Panel. The overwhelming majority of them sit three times or less in a year. The adjudicators enjoy the right and freedom of speech. However, it is important that where they comment publicly on matters before the Tribunal, they should exercise considerable caution. It is important that the integrity and impartiality of the Tribunal should not be compromised.
In the event that a Tribunal adjudicator has made public comments on matters before the Tribunal, the Judiciary's position is that the adjudicator concerned will be disqualified from sitting on the Tribunal in the matter in question. In this context, the appropriate test is that an adjudicator is disqualified from sitting if the circumstances are such as would lead a reasonable, fair-minded and well-informed observer to conclude that there is a real possibility that the adjudicator would be biased. Whether the adjudicator concerned will be disqualified from sitting in a similar case in the future will have to be considered by applying this test to the circumstances of the case in question.
(b) The Judiciary will ensure that the adjudicators understand the test and that the test is applied. There are at present no guidelines regarding adjudicators' acts such as publicly commenting on matters before the Tribunal. Apart from ensuring that the adjudicators understand the test and that the test is applied, the Judiciary at present does not intend to promulgate such guidelines. However, the need for such guidelines will be kept under review.
Ends/Wednesday, May 30, 2007