scope of the powers of censorship. In my view, the vice of the gislation consists not so much in the uncertainty of the law as in the over-breadth of the censor's powers, and also in the absence of adequate safeguards and effective control to prevent misuse of the exercise of those powers. I have already considered the second of these vices (the absence of adequate safeguards and remedies) in the context of Article 2 (paragraphs 4 to 9 above). However, it also arises as a potential separate breach of the
requirement of respect for the Rule of Law, inherent in the
phrase "provided by law" : see e.g., paragraph 55 of the European
Court's judgment of 6th September 1978 in the Klass Case, Series A No.28; and paragraph 67 of the European Court's judgment of 2nd August '1984 in the Malone Case, Series A No.82. It is a consequence of the over-breadth of the powers of censorship combined with the absence of effective judicial control of the
manner in which those powers are exercised. In my view, it is strongly arguable that the legislation, in the context of the general law of Hong Kong, does not satisfy these further requirements of the Rule of Law inherent in the phrase "provided
by law".
Over-inclusive aims
14. The next question is whether the aims of the restrictions authorised by the legislation are within the scope of Article 19
It paragraph 3.
is difficult to answer this question in the
abstract (ie., in the absence of a concrete case involving the
actual exercise of the censor's powers). Plainly, it is theoretically possible for the powers to be exercised in a manner which comes within Article 19 paragraph 3. Suppose, for example, that the public showing of a film were believed to be seriously prejudicial to good relations with the People's Republic of China because it defamed their leaders. The banning of the film would be done "for respect of the rights or reputations of others", the within the meaning of Article 19 paragraph 3a. Similarly, public showing of a film might be seriously prejudicial to good relations with the People's Republic by stirring up violence or hatred in a manner which would come within the protection of
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