TNAG-1691-FCO40-2341-Hong-Kong-legislation-regarding-the-control-of-publications--1987 — Page 168

philosophical,

or religious material receiving the most

protection, and with advertising, or personal, or trivial material receiving lesser degrees of protection.

Unnecessary Restraints

17.

I have already observed that the legislation confers blanket powers upon the censor to ban the public showing of films in Hong Kong, with no effective legal safeguards or remedies for the exercise of those powers in a manner which conflicts with the

right to free expression guaranteed by Article 19 paragraph 2. It

is obvious, on the basis of the principles summarised

in

paragraph 16, that the legislation will authorise the censor to

impose restraints which are not necessary in terms of those well-

recognised principles, clearly exceeding the area of discretion or "margin of appreciation" enjoyed by the public authorities in Hong Kong. The legislation therefore authorises breaches of

Article 19 for

for which there are no effective remedies, whether

under the existing laws of Hong Kong or (in the absence of acceptance of its jurisdiction) before the Human Rights

Committee.

Unjustifiable Chilling of Free Expression

18.

Further, in my view, it is strongly arguable that the mere

existence on the statute book of the massively broad powers of

censorship, discussed in paragraph 13 above, will have a

sufficiently chilling effect upon the freedom of expression of

those who wish to communicate with the public by showing films in Hong Kong to constitute an unjustifiable restraint in breach of

Article 19. Normally, the mere existence of legislation, as

distinct from its application in a concrete case, is insufficient to enable a person to show that he or she is a direct or indirect victim, so as to have standing to complain. However, such is the breadth of the powers now sought that the only safe way in which members of the film industry can safely avoid the exercise of those powers is by seeking to show only those films which are likely to be favourably received or regarded as inoffensive or as

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