Judge raps obscenity watchdog
Peter Brieger, Martin Wong and Yvonne Tsui
Tribunal wrong to classify as 'indecent' sex articles in student newspaper
The obscenity watchdog failed to do its job when it ruled that a series of sex articles in a student newspaper was indecent, a Court of First Instance judge ruled yesterday.
Mr Justice Johnson Lam Man-hon quashed the Obscene Articles Tribunal's decision and chastised the regulator for its handling of the high-profile case. A heavy workload did not excuse the tribunal's 'lax approach', he said.
'The tribunal is asked to make decisions which have a bearing on the freedom of expression, a fundamental right cherished by our society,' the judge wrote in his 30-page decision. 'There is no room for arbitrariness or slackness.'
Tong Sai-ho, the articles' author and former chief editor of Chinese University's CU Student Press, launched a legal battle with the regulator after it classified his stories indecent in May last year.
Ming Pao Daily News also weighed into the dispute after reprinting Mr Tong's articles, a compilation of surveys and questionnaires about various sexual topics, including bestiality and incest. The material was accompanied by several illustrations, including foreign objects being inserted into bodily orifices.
Thomas Tsang, the student newspaper's former editor, argued that more should be done to revamp how the watchdog decided what material was indecent. The ruling 'has not challenged the core value of the Obscene Articles Tribunal that it lacks a reasonable transparency and convincing credibility', he said outside the High Court.
He called on the university to issue a public apology for sending warning letters to some students after the tribunal's ruling last year.
In a statement, the university said it had never disciplined any student over the incident, adding that letters sent to the students only reminded them not to publish articles beyond the acceptance of the public.
'CU Student Press has always enjoyed freedom of expression and publication. It also has room to explore different topics, but then students of the editorial team should pay attention to the bottom line of society on moral standards,' the university said.
Ming Pao chief editor Cheung Kin-bor said the tribunal should be more cautious with its decisions.
Undersecretary for commerce and economic development Greg So Kam-leung said the government would study the ruling before commenting on it. The court's decision would definitely be included in a forthcoming review of the tribunal, which would hear public comments about the watchdog, he said.
Lawyers for Mr Tong and Ming Pao argued that the watchdog's failure to give reasons for banning the material was an affront to free speech and breached regulations governing the tribunal.
Yesterday, Mr Justice Lam agreed that the regulator fell short of its mandate and should have elaborated on why the articles were banned.
The tribunal also erred by grouping separate articles together instead of looking at each one individually, the judge said. Some material that 'cannot remotely be regarded as indecent' was unfairly labelled as such.
He rejected arguments that tribunal members - a magistrate and two other adjudicators - must have decided in their own minds what was indecent about the articles, even if they chose not to put their reasoning on paper.
Last month, the tribunal, represented by the secretary for justice, told a judicial review it was not required to provide detailed reasons before the case went to a full hearing.
The watchdog must issue an interim decision quickly to give publishers time to decide if they wanted to pursue the matter, and may change its mind after a full hearing, the review was told.
But Mr Justice Lam rejected claims that the tribunal's interim decision was just an 'expression of opinion', since its classification could lead to criminal charges against the material's author, or anyone who reprinted it.