TNAG-1691-FCO40-2341-Hong-Kong-legislation-regarding-the-control-of-publications--1987 — Page 162

case law as of highly persuasive value.

"Provided by law" and Legal Certainty

11. Mr. Barendt has stated

stated (Opinion, paragraph 3) that there

seems to be "no doubt" that the first requirement that the

measure of restriction must be "provided by law" is satisfied,

for the censor's powers are set out clearly in a Bill to be enacted in Hong Kong, and further as regards the Regulations,

they have been introduced to put the standards presently applied

by the film censorship authority on a legal footing. I am less

certain than Mr. Barendt that the restrictions (whether under the

Regulations or under the proposed Bill) clearly satisfy the

requirements of legal certainty contained in the phrase "provided

by law". Those requirements were explained by the European Court

of Human Rights in paragraph 49 of its judgment of 26th April

1979 in the Sunday Times Case, Series A No. 30, as follows:

12.

it

is

-

"First, the law must be adequately accessible; the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able if need be with appropriate advice to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those circumstances need not be foreseeable with absolute certainty; experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the 1aw must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."

I agree that the legislation satisfies the requirement that should be adequately accessible. However, I consider that it at least arguable that the legislation does not satisfy the requirement of reasonable foreseeability. The test is whether a film producer or distributor could reasonably foresee in all the

circumstances that the public showing of a a film would, in the

censor's opinion, damage,

damage, or seriously

or seriously damage, or be seriously prejudicial to good relations with other territories (to use each

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