TNAG-1735-FCO40-2448-Minutes-and-Hansards-of-the-Legislative-Council-of-Hong-Kong-1988 — Page 189

HONG KONG LEGISLATIVE COUNCIL 18 May 1988

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Sir, with these principles in mind, I would now like to deal with the amend- ments proposed by Mr. Martin LEE and to analyse the way they would operate in practice. Mr. LEE's amendment would require any challenge to be by way of judicial review. Therefore, the court would, in relation to a decision of the censor, consider whether he had lawfully exercised the power given to him. For example, was the ground of the censor's decision one within the provisions of clause 10(2) of the Bill? Next, the court would consider whether the censor had followed the correct procedure. Did the authority assign a censor to view the film? Did the censor view it?

Unless the court was able to deal with the issue on these two grounds, it would then ask itself whether the decision of the censor under clause 10(2) was such that no reasonable censor could have reached the decision he did. As I have said, the court will not concern itself with the question of whether the decision was the right decision, but only whether the decision was one open to the censor. In reaching its own decision, the court will take into account the fact that the legislature has qualified the duty of the censor to comply with article 19 and give him a latitude, called by Mr. LEE 'a margin of appreciation'.

The practical effect of Mr. Martin LEE'S amendment which I have outlined would be substantially the same as the practical effect of the amendment proposed by Mr. YEUNG PO-kwan as he has so clearly explained. Following Mr. YEUNG'S amendment, any person aggrieved by a decision of the censor or the board of review could challenge that decision by way of judicial review. The same three tests or principles would be applied by the court and, at the end of the day, the court would need to decide whether the decision-making process was defective.

There is, however, a world of difference in the terms of the drafting of the two amendments. I do not know how the courts in Hong Kong would interpret the words 'the doctrine of governmental margin of appreciation'. As the Attorney General explained in this Council last July, it is not, in fact, a doctrine of international law, but an approach adopted by international courts in inter- preting the permitted exceptions to the rights guaranteed by the International Covenant. I think I know what Mr. Martin LEE hopes the words mean. But I cannot say with any degree of certainty that a court will necessarily adopt his meaning. So in my view, the phrase fails the fundamental test of legislative drafting which is certainty. I think it follows from what I have said that if Mr. Martin LEE's proposed amendment to clause 10 would make the Bill consistent with article 19, and so does Mr. YEUNG Po-kwan's amendment. Sir, for these reasons, I would support Mr. YEUNG's motion.

MR. MARTIN LEE: Sir, may I speak in response to the learned Attorney General's submission.

Sir, those two safeguards were put in by me in order to appease the Attorney General, but if he thinks that the introduction of those two safeguards would