TNAG-1687-FCO40-2337-Hong-Kong-legislation-regarding-the-control-of-publications--1987 — Page 97

Immunity.

Guidance to Tribunal.

[cf. NZ, 1963, No. 22, s. 11.]

(Cap. 172, sub. leg.)

Powers.

(Cap. 227.)

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(2) In relation to any article submitted to it under section 13 a Tribunal may- (a) refuse an application to make a classification in respect of any article if it considers that article cannot be adequately described for the purpose of giving notice of classification under section 19; or

(b) make a classification that the article is-

(i) a Class I article if it is of the opinion that the article is neither obscene nor indecent;

(ii) a Class II article if it is of the opinion that the article is indecent; or (iii) a Class III article if it is of the opinion that the article is obscene; and (c) in respect of any classification that an article is a Class II article and at the time of making that classification, impose conditions relating to the publica- tion of that article.

(3) For the purposes of subsection (1)(c) the opinion of an expert as to the ground of defence in section 28 may be admitted either to establish or negative that ground.

9.

Any

(a) member of a Tribunal; and

(b) witness, party to any proceedings, representative or other person appearing

before a Tribunal,

shall have the same privileges and immunities in any proceedings before a Tribunal or in the exercise of a Tribunal's functions as he would have before a court.

10. (1) In determining whether an article is obscene or indecent or whether any matter publicly displayed is indecent, or in classifying an article, a Tribunal shall have regard to-

(a) standards of morality, decency and propriety that are generally accepted by reasonable members of the community, and in relation thereto may have regard to-

(i) in the case of an article, any decision of the Film Censorship Authority under the Film Censorship Regulations to approve or refuse to approve a film; and

(ii) in the case of matter publicly displayed, any decision of the censor under regulation 8 of the Film Censorship Regulations to approve or refuse to approve any poster, picture, figure or text of any advertisement for publication;

(b) the dominant effect of an article or of matter as whole;

(c) in the case of an article, the persons or class of persons, or age groups of persons, to or amongst whom the article is, or is intended or is likely to be, published;

(d) in the case of matter publicly displayed, the location where the matter is or is to be publicly displayed and the persons or class of persons, or age groups of persons likely to view such matter; and

(e) whether the article or matter has an honest purpose or whether its content is

merely camouflage designed to render acceptable any part of it.

(2) The opinion of an expert as to any of the matters to which a Tribunal must or may have regard under subsection (1) may be admitted in any proceedings before a Tribunal either to establish or negative that matter.

11. A Tribunal-

(a) when exercising its jurisdiction under Part V shall have the powers of a magistrate under the Magistrates Ordinance and for that purpose references in that Ordinance to a magistrate shall be deemed to include references to a Tribunal;

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(b) when exercising its jurisdiction under Part III may, subject to that Part and

Part VIII, determine its own procedure and in particular may—

(i) receive and consider any material, whether by way of oral evidence, written statements, documents or otherwise, notwithstanding that such material would not be admissible in evidence in civil or criminal pro- ceedings;

(ii) by notice in writing signed by the presiding magistrate, require any person to attend before it at any hearing and to give evidence and produce documents;

(iii) administer oaths and affirmations;

(iv) examine on oath, affirmation or otherwise any person attending before it at any hearing and require such person to answer all questions put by or with the consent of that Tribunal;

(v) determine the manner in which the material mentioned in sub- paragraph (i) shall be received; and

(vi) determine the manner in which any article shall be viewed, seen or examined by that Tribunal;

(c) may do all things-

(i) ancillary to the powers conferred by this section; or

(ii) reasonably necessary for the discharge of its functions under this Ordinance.

12. Any person who-

(a) refuses or fails to comply with any lawful order, requirement or direction of

a Tribunal; or

(b) disturbs or otherwise interferes with the proceedings of a Tribunal, commits an offence and is liable to a fine of $10,000 and to imprisonment for 6 months.

PART III

CLASSIFICATION OF ARTICLES BY A TRIBUNAL

13. (1) 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 the Registrar for classification by a Tribunal.

(2) Any public officer may, by application in the prescribed form, submit any article to the Registrar for classification by a Tribunal.

Offences relating to a Tribunal,

Submission of article to

Tribunal.

classification.

14. (1) Subject to section 17(2), where an article is submitted under section 13 a Interim Tribunal shall-

(a) consider it in private and without the attendance of the applicant or any other person and, within 5 days of that submission, make an interim classification in respect of that article; or

(b) subject to subsection (2), if at the expiry of the period mentioned in paragraph (a) it has not made an interim assessment, consider that applica- tion as if it were a requirement for a full hearing under section 15.

(2) The presiding magistrate may, at any time during the period mentioned in subsection (1)(a), extend that period by any period not exceeding 5 days and shall give notice of that extension to the applicant.

(3) Subject to section 7(3), a Tribunal shall not be required to give any reasons for any interim classification but may give guidance to the applicant in relation to the article submitted.