TNAG-1735-FCO40-2448-Minutes-and-Hansards-of-the-Legislative-Council-of-Hong-Kong-1988 — Page 178

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HONG KONG LEGISLATIVE COUNCIL — 18 May 1988

censor takes his work very seriously and views a potentially controversial film together with a political adviser as well as a legal adviser. At the end of the viewing session, he turns to the political adviser who tells him that the film has been strongly objected to by the New China News Agency on the ground that a certain Chinese leader has expressed the view that it should be banned, and that if it was to be exhibited in the cinemas of Hong Kong it could sour relations between the People's Republic of Chain and the Hong Kong Government. The censor then turns to the legal adviser who advises him that in his view, the banning of the film will contravene article 19, because it is not necessary for respect of the reputations of others, or for the protection of national security, or of public order, or ordre public.

In these circumstances, if the censor decides to ban the film, after taking into account the advice of both the political adviser and the legal adviser, there is very little the aggrieved party can do about it. If it takes the matter to the court on the ground that in banning his film the censor has acted outside his powers conferred upon him by clause 10(2)(c) in relying on a reason which falls outside the exceptions allowed for in article 19(3), the court is likely to say that because the censor had taken article 19 into account, to the extent of seeking advice from the legal adviser, it cannot be said that he had acted outside the law.

Further, following well recognised legal principles, a judge cannot substitute his own discretion for that of the censor. This illustration shows very clearly that by merely requiring the censor to take article 19 into account, without requiring him to comply with it, will result in a situation where a film can legiti- mately be banned under clause 10(2)(c) even though it contravenes article 19.

If Members of this Committee really want to ensure that article 19 will be adhered to and that seems to be the avowed objective of Members, including the hon. YEUNG Po-kwan-by the censor in exercising his powers under clause 10(2)(c), then I urge Members to adopt my formula. For to adopt the Government's proposal now contained in the hon. YEUNG Po-kwan's amend- ment is but to pay lip service to article 19.

Indeed, for reasons which I will develop later on when I deal specifically with some of the objections to my proposal, I believe that it is better to introduce clause 10(2)(c) without the proposed clause 10(3)(d) than with it.

In any event, since the intention of my hon. Colleagues is to pass a law which makes it necessary for the censor to comply with article 19 rather than to infringe it, and since the hon. YEUNG PO-kwan's proposal is open to un- certainty, whereas my proposal is clear beyond argument, I would submit that on that ground alone, my proposal should be adopted.

Before I deal with the arguments which have so far been raised against my proposal, it is pertinent to note that the United Kingdom Government has not signed the option of protocol of the International Covenant on Civil and Political Rights. Private citizens in Hong Kong have no right to apply to the

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