Last year, as secretary for commerce, industry and technology, I was embroiled in the row over the interim classification by the Obscene Articles Tribunal that a number of articles in the monthly periodicals published by students at Chinese University should be regarded as indecent. Some Chinese media sympathetic to the students' objection against the decision criticised me for double standards when I refused to submit the Bible, the Koran and a number of literary works that allegedly contained indecent material to the tribunal for classification. This was one of the incidents that led to the current public consultation on the review of the Control of Obscene and Indecent Articles Ordinance.
Shortly after the government issued the consultation paper, the High Court quashed the tribunal's decision and chastised it for adopting a 'lax approach' in arriving at the classification. 'There is no room for arbitrariness and slackness,' Mr Justice Johnson Lam Man-hon said in his judgment.
Nevertheless, the judgment noted that the tribunal 'functions as the protector of public interest in the preservation of public moral and prevention of dissemination of indecent materials to juveniles and the dissemination of obscene materials in general'.
Clearly, the tribunal needs more resources to be able to function more efficiently. The government should do this before the outcome of the consultation is known. It should also review the body's composition and operation, to restore public trust and confidence.
The tribunal is a judicial body, which comprises a presiding magistrate and two members of the public appointed by the chief justice to serve as adjudicators. Currently there is a pool of some 300 adjudicators. Upon receipt of an article, the presiding magistrate and two adjudicators conduct a private hearing and give an interim classification. If this is challenged, there is a full public hearing, conducted by the presiding magistrate in charge of the interim classification and four or more adjudicators who were not previously involved in the case. The arrangement is based on the premise that the adjudicators represent 'the standards of morality, decency and propriety that are generally accepted by reasonable members of the community'.
The major flaw is that the existing pool of adjudicators is mainly based on the recommendations of the Television and Entertainment Licensing Authority and the Home Affairs Bureau. It is difficult to convince the public that the 300-odd adjudicators represent the community at large. In the consultation paper, the government has made a sensible suggestion to draw adjudicators from the list of jurors (currently about 570,000) and to increase the number from two to four in the first hearing and from four to six at the full hearing.
However, the operation of the first hearing should also be reviewed in the light of the High Court decision. While Section 14 of the Control of Obscene and Indecent Articles Ordinance says the tribunal is not required to give any reasons for its interim classification, the High Court judgment said it was necessary. Thus, it may be appropriate to amend the ordinance.
