My latest letter to Obscene Articles Tribunal

跟淫審的案件處於膠著狀態，問審裁處拿初審的資料，影視處話同覆審聆訊無關；沒有初審，何來覆審？沒有初審的資料，我又如何組織覆審時的論據？影視處強調自己的運作公開透明，依家明顯係黑箱作業．只有繼續追問．希望中大與明報的司法覆核會展示出其問題所在．

Up Till now, OAT and I still haven’t agreed on a hearing date because TELA and OAT refused to hand in information on the ground that the information I required has no relation with the hearing. So I have to explain the relation by quoting from the Obscene Articles Ordinance:

Re: More inquiries for OAGO000147/2007

Dear Sir,

In response to your letter dated July 24 2007 concerning the relevance of my questions in relation to the full hearing, I would like to refer to the mission statement of Television and Entertainment Licensing Authority (TELA) that they follow the principle of “Transparency to the public”. I believe that the information that I asked for should be open to the public inquiries not to mention the fact that I am the applicant in this classification proceedings.

As I said in my previous letter, the information that I asked for “is necessary for my preparation of witness statement, expert opinions, submissions, etc. as they directly affect the classification of the article – which can lead to a serious criminal charge.”

However, to entertain TELA and OAT’s question, I would like to refer to CAP 390, section 7(2), which states: “Subject to subsection (3), in the event of any difference between the members of a Tribunal, the decision of that Tribunal shall be that of the majority of them or, in the event that they are equally divided, that of the presiding magistrate.”

Questions 1-4 from my letter dated July 17 are to seek further information on the above process described by the law. If such process had not taken place, I would seek judicial review for the interim classification.

Moreover, according to the CAP 390, section 8 (1c), section 28 and section 10:

8 (1) In relation to any article, or any matter publicly displayed, referred to it by a court or magistrate under Part V a Tribunal may determine for the purposes of this Ordinance whether- (Amended 31 of 2003 s. 22)
(c) the ground of defence under section 28 is proved in respect of the publication of an article or the public display of any matter.

28. It shall be a defence to a charge under this Part in respect of the publication of an article or the public display of matter if that publication or display, as the case may be, is found by a Tribunal to have been intended for the public good on the ground that such publication or display was in the interests of science, literature, art or learning, or any other object of general concern.

10. In determining whether an article is obscene or indecent or whether any matter publicly displayed is indecent, or in classifying an article, a Tribunal shall have regard to-
(b) the dominant effect of an article or of matter as a whole;
(c) in the case of an article, the persons or class of persons, or age groups of persons, to or amongst whom the article is, or is intended or is likely to be, published;
(d) in the case of matter publicly displayed, the location where the matter is or is to be publicly displayed and the persons or class of persons, or age groups of persons likely to view such matter; and
(e) whether the article or matter has an honest purpose or whether its content is merely camouflage designed to render acceptable any part of it.

Therefore, in Question 5, I would like to know whether TELA has provided any supplementary information to the adjudicators so that they have enough basic information to classify the article according to the requirements of CAP390.

Attached is my previous letter of inquiries, I am looking forward to hearing from you.

Regards, Oiwan Lam