TNAG-1687-FCO40-2337-Hong-Kong-legislation-regarding-the-control-of-publications--1987 — Page 102

16

17

Powers of Registrar.

Regulations.

Repeal of

Objectionable Publications Ordinance. (Cap. 150.)

Transitional. (Cap. 150.)

(e) the form of any document for the purpose of any proceedings in a Tribunal

or for any appeal;

(f) rights of audience before a Tribunal;

(g) the giving of notice relating to any proceedings before a Tribunal or any

appeal under section 30; and

(h) the award, taxation and recovery of costs relating to any proceedings in a

Tribunal.

45. The Registrar may—

(a) give directions as to the distribution and disposal of the business of a

Tribunal;

(b) determine any form of document to be made or issued by a Tribunal; and (c) permit such person or class of person as he thinks appropriate on payment

of any prescribed fee to search-

(i) the register of notices kept by him under section 19(4); and (ii) the repository of articles kept by him under section 20.

46. The Governor in Council may make regulations to provide for— (a) fees;

(b) the manner of giving of notice under section 18;

(c) the empowering of a Tribunal or the Registrar to waive any prescribed fee;

and

(d) the payment of fees and allowances to adjudicators.

PART IX

MISCELLANEOUS

47. The Objectionable Publications Ordinance is repealed.

48. Any proceedings under the Objectionable Publications Ordinance com- menced before the commencement of this Ordinance may, notwithstanding the repeal of the Objectionable Publications Ordinance by section 47, be continued as if that Ordinance had not been repealed.

Explanatory Memorandum

This Bill, which repeals and replaces the Objectionable Publications Ordin- ance, establishes Tribunals, to be known as Obscene Articles Tribunals, which will have exclusive jurisdiction to determine whether an article referred to it by a court or magistrate is an obscene or indecent article and whether matter publicly displayed is indecent. A Tribunal will also have power to classify an article as Class I (neither obscene nor indecent), Class II (an indecent article) or Class III (an obscene article).

2. Part I (clauses 1-4) deals with preliminary matters. Clause 2 contains definitions and interpretation provisions. Clause 3 provides that the Bill will not apply to films approved by the Film Censors under either the Film Censorship Regulations or the Television Ordinance. Clause 4 provides that an article shall not be regarded as classified nor conditions be regarded as imposed until notice thereof has been given.

3. Part II (clauses 5-12) deals with the Tribunals. Under clause 5 a panel of adjudicators will be appointed. A Tribunal may be appointed by the Registrar of the Supreme Court ("Registrar") under clause 6. Clause 7 provides that the members of a Tribunal shall consist of a presiding magistrate and 2 or more adjudicators. Clause 8 sets out its jurisdiction. A Tribunal is required to first consider whether the article is of such a type that notice of any classification of it can be given and will have power to impose conditions relating to the display and publication of Class II articles. A Tribunal and persons appearing before it will have the same immunity as they would have if that Tribunal were a court (clause 9). Clause 10 provides guidance to a Tribunal in the exercise of its jurisdiction. Clause 11 sets out the powers of a Tribunal and clause 12 deals with offences relating to a Tribunal.

4. Part III (clauses 13-20) deals with the system of classification. An author, printer, manufacturer, publisher, importer, distributor or the owner of the copyright of an article or any person who commissioned the design, production or publication of it will be able to submit it to a Tribunal for classification (clause 13(1)). Any public officer will have a similar right in relation to any article (clause 13(2)). A Tribunal is required to make an interim classification within 5 days of that submission (clause 14(1)). Power is given to extend this time (clause 14(2)). Any of the persons referred to in clause 13 may request a full hearing (clause 15). A full hearing will be held in public (clause 16). Clause 17 enables a Tribunal on its own motion, or on the application of a person referred to in clause 13, to reconsider any classification.

5. The Registrar is required to give notice in newspapers of any interim or full classification (clause 19) and of any full hearing (clause 15(3)). He is also required to maintain a register of notices of classification (clause 19) and to maintain a repository for articles submitted for classification (clause 20). The printer, manufacturer, publisher, distributor and importer of an article which has been classified is required by clause 18 to give notice of that classification to any person to whom he publishes more than 2 copies.

6. Part IV (clauses 21-28) sets out offences in relation to the publishing of obscene or indecent material. These include the offences of publishing an obscene article (clause 21), publishing an indecent article to a juvenile (clause 22), publicly displaying indecent matter (clause 23), publishing an indecent article without a warning notice (clause 24) and offences relating to the publishing of articles that have been classified by a Tribunal (clauses 25, 26 and 27). Clause 28 provides a defence of public good.

7. Part V (clause 29) deals with a Tribunal's exclusive jurisdiction to determine whether articles are obscene or indecent.

8. Part VI provides a right of appeal on a point of law (clauses 30-31).

9.

Part VII (clauses 32-43) deals with enforcement. Clause 32 provides presumptions in relation to publication and clause 33 provides for proof of classifica- tions and notices of classification and of decisions and determinations of a Tribunal. The police and members of the Customs and Excise Service may, under clause 34, apply for a warrant to search premises, aircraft and vessels if, on reasonable grounds, they suspect that an obscene or Class III article is to be found there. Clause 35 sets out the ancillary powers of officers under a warrant. Clause 36 empowers members of the Customs and Excise Service to seize obscene or Class III articles in the course of being imported. Any article seized must be taken before a magistrate who, after obtaining a ruling from a Tribunal in the case of an article alleged to be an obscene article, has power to order forfeiture of that article (clauses 37, 38 and 39). Clause 41 sets out the procedure to be followed in connexion with forfeiture. Clause 42 empowers a magistrate to order the obliteration or removal of any indecent matter publicly displayed on a building or other structure. The procedure in relation to obliteration is set out in clause 43.

10. Part VIII (clauses 44-46) deals with the making of rules and regulations. Clause 44 empowers the Chief Justice to make rules relating to the practice and procedure of the Tribunal and any appeal therefrom. The Registrar is empowered by clause 45 to give directions as to the distribution and disposal of business by the Tribunal. Under clause 46 the Governor in Council may make regulations.