TNAG-1731-FCO40-2444-Minutes-and-Hansards-of-the-Legislative-Council-of-Hong-Kong-1988 — Page 272

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The Censor, and for that matter the Board of Review, are agents of the Hong Kong Government. The Hong Kong Government therefore, cannot argue that it is not responsible for the acts of either the Censor or the Board of Review if a film is banned under the proposed subsection 10(2)(c) in circumstances which fall outside the exceptions to Article 19(3) and therefore constitute a breach of it. To require the Censor to take into account Article 19 is unsatisfactory for the reasons already explained.

The second argument advanced is that to legislate/ to allow

Censor a margin of appreciation normally afforded to Government while requiring him to comply with Article 19 is, in effect, no different from requiring him to take it into account but is less satisfactory in terms of clarity. I cannot see, with respect, how any lawyer can argue that my formula is less clear than the Honourable YEUNG Po-kwan's formula, for the Honourable Me YEUNG Po-kwan's formula merely requires the Censor to take Article 19 into account whereas my formula requires him to comply with it. To say that the two are not different from each other is to turn a blind-eye to the obvious.

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The third argument advanced is that it is part of the purpose of the new sub-clause for it to apply also to the Board of Review with its majority of non-official members, 27 and that it is not necessary or appropriate to assume that this Board needs to be directed to comply with Article 19. This is a fallacious argument because it is unnecessary to legislate so as to require the Board of Review also to comply with Article 19. The Board of Review, in effect, 32 hears appeals from the decisions of the Censor. If the

complaint is that the Censor is wrong in having banned a film in breach of Article 19, then in deciding whether there is merit in the appeal, the Board of Review must determine whether the Censor has complied with Article 19.

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