TNAG-1691-FCO40-2341-Hong-Kong-legislation-regarding-the-control-of-publications--1987 — Page 120

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RIGHTS UNDER THAT CONVENTION ARE SATISFIED IF THE RIGHT IS SECURED BY UNWRITTEN LAW, IE COMMON LAW. THERE IS NO REASON WHY THE POSITION SHOULD BE ANY DIFFERENT AS REGARDS THE INTERNATIONAL

COVENANT.

4.

WHETHER THE MERE EXISTENCE OF THE CENSOR'S POWERS QUOTE CHILLS UNQUOTE THE RIGHT OF FREE EXPRESSION (PARA 2(B)) IS ESSENTIALLY A MATTER OF FACT IT CANNOT BE A MATTER, AS MR LESTER SUGGESTS, OF A PRIORI ASSUMPTION. WE DO NOT HAVE THE NECESSARY INFORMATION. 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 TO ITS PAST EXERCISE.

5.

WITH REGARD TO THE ASSERTION THAT THE GOVERNMENT MIGHT NOT BE ABLE TO SATISFY THE REQUIREMENT THAT RESTRICTION WAS QUOTE PROVIDED BY LAW UNQUOTE, (PARA 2(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 GOVERNMENT WOULD BE ABLE TO ESTABLISH THAT THE LEGISLATION GAVE QUOTE FAIR WARNING UNQUOTE AND HIS CRITICISM ON THIS COUNT COMES DOWN TO THE QUOTE OVER BREADTH OF THE CENSOR'S POWERS UNQUOTE AND THE ABSENCE OF SAFEGUARDS AGAINST MISUSE. THESE ISSUES GO IN ESSENCE TO THE QUESTION WHETHER A PARTICULAR EXERCISE OF THE POWER IS DEFENSIBLE IN TERMS OF ART.19.3 OF THE CONVENTION (SEE

PARA 7 BELOW).

6.

A)

B)

MR LESTER'S OPINION ALSO CANVASSES THE QUESTION WHETHER THE POWERS OF THE CENSOR ARE WITHIN ARTICLE 19.3

BY CONFINING THE POWERS TO CENSORSHIP OF FILMS, THERE IS UNJUSTIFIABLE DISCRIMINATION.

THERE IS NO QUESTION 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 QUOTE IF IMPOSED BY THE CENSOR UNQUOTE. THERE IS MUCH IN PARA 15 WITH WHICH WE WOULD AGREE, BUT QUOTE PRESSING SOCIAL NEED UNQUOTE IS NOT THE ONLY

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