upon to interpret it, together with the Honourable
YEUNG Po-kwan's proposed, 10(3)(d), would undoubtedly,
we are told, interpret it as being intended to carry out the international obligation of Hong Kong under Article 19.
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And that obligation is to give full effect to the right
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to freedom of expression, subject only to limited
restrictions.
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clause
But this argument is good only if Section 10(2)(c) is introduced without any reference to Article 19.
In such a case, if an aggrieved distributor brings the matter to a court in Hong Kong on the grounds that the 14 densor was wrong in banning his film under Section clami 15 10(2)(c) for a reason which falls outside the exceptions
allowed for in Article 19, the court will be faced with two alternative constructions. First, that it is the intention of the legislature to confer a new power on the Censor but subject to Article 19. Or second, that the legislature's intention is to give a power which is 21 completely independent of Article 19(3).
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23 Now, the application of this principle in Garland v.
British Rail would mean that the court should adopt the first approach
Namely, that the legislature's intention 26 in enacting Section 10(2)(c) is that the power of the 27 Censor should not be exercised in such a way as would be
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inconsistent with Article 19. But this would have been the position only without any reference being made to 30 Article 19, in the terms of the Honourable, YEUNG Po-kwan's formula. But a totally different result
clause
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Clause
32 would obtain if Section 10(3)(d) were enacted together 33 with Section 10(2)(c), for the former merely casts a duty 34 on the Censor to take Article 19 into account. It would
35 then be open to the Government to argue before the court 36 that the intention of the legislature is clear.
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