3.
Whether the mere existence of the censor's powers 'chills" the right of free expression (para 1(b)) is essentially a matter of fact. It cannot be a matter, as Mr Lester suggests, of a prior assumption. I do not have the necessary informa- tion. Relevant elements are the number of occasions in which the censor has acted on relevant grounds as compared with the volume of films exhibited in Hong Kong, and the particular instances in which he has acted. Further the analogy Mr Lester seeks to draw with Dudgeon is not apt. Dudgeon was a case where particular conduct was criminal, ie a rule of law was involved. What is involved in film censorship is a discretionary power. Its deterrent effect only operates if the power is exercised in a particular case and the reasonableness of apprehensions of the exercise of the power is determinable by the extent of its past exercise.
4.
With regard to the assertion that the Government might not be able to satisfy the requirement that restriction was "provided by law", (para 1(c)), Mr Lester's criticism would seem to be applicable to any grant of discretionary powers. However he appears to conclude (para 13 of Opinion) that the UK would be able to establish that the legislation gave "fair warning" and his criticism on this count comes down to the "over breadth of the censor's powers" and the absence of safe- guards against misuse. These issues go in essence to the question whether a particular exercise of the power is defen- sible in terms of Art.19.3 of the Convention (see para 6 below).
5.
Mr Lester's opinion also canvasses the question whether
-
a)
the powers of the censor are within Article 19.3
b)
by confining the powers to censorship of films, there is unjustifiable discrimination.
6. I have dealt with these allegations at an earlier stage. There is no question in my mind that the powers could be exercised in terms of the legislation in ways which are not defensible under Article 19.3. But as Mr Lester writes, it is difficult to deal with this question in the abstract and that is why the matter can only be properly tested when the power is exercised. There is perhaps some recognition of this in the penultimate line of para 14 of the Opinion in the words "if imposed by the censor." I should also add that there is much in para 15 with which I would agree, but "pressing social need" is not the only test. "National security" for example is another.
7. As to discrimination, I would repeat that the European Convention on Human Rights has dealt with this point in the Hardyside case.
/8.