TAN JWEE HUAT AND ANOTHER v. COMMISSIONER OF CUSTOMS AND EXCISE AND ANOTHER

TAN JWEE HUAT AND ANOTHER v. COMMISSIONER OF CUSTOMS AND EXCISE AND ANOTHER

A compact disc stamper is an "article" under s.2(1) of the Ordinance because it is a disc and a record of a picture intended to reproduce viewable images; its inverse or digital form and the need for conversion do not prevent it from being obscene; accordingly the Obscene Articles Tribunal had jurisdiction under ss.8 and 29 to examine and classify stampers and the application to quash the Tribunal's classification was dismissed.

Citation
TAN JWEE HUAT AND ANOTHER v. COMMISSIONER OF CUSTOMS AND EXCISE AND ANOTHER
Parties
1st Applicant: Tan Jwee Huat; 2nd Applicant: Chow Ping Wah; 1st Respondent: Commissioner of Customs and Excise; 2nd Respondent: Obscene Articles Tribunal
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 August 1999
Case Number
HCAL26/1999
Procedural Posture
Judicial Review (challenge to Obscene Articles Tribunal Classification) / Final Judgment on Application to Quash Tribunal Classification
Outcome
Application dismissed
Legal Topics
Definition of "article", Jurisdiction of Specialist Tribunal, Publication for Purpose of Obscenity Offences, Digital Media and Reproducing Devices, Legislative History and Purposive Construction
Source Language
EN
Constitutional and Administrative Law Criminal Law Statutory Interpretation Media/censorship Law Technology and Evidence Law Definition of "article" Jurisdiction of Specialist Tribunal Publication for Purpose of Obscenity Offences +2 more

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Parties

Tan Jwee Huat

1st Applicant

Chow Ping Wah

2nd Applicant

Commissioner of Customs and Excise

1st Respondent

Obscene Articles Tribunal

2nd Respondent

Procedural Posture

Judicial Review (challenge to Obscene Articles Tribunal Classification) / Final Judgment on Application to Quash Tribunal Classification

Legal Issues

  1. 1 Whether a compact disc stamper falls within the statutory definition of "article" in s.2(1) of the Control of Obscene and Indecent Articles Ordinance
  2. 2 Whether a stamper, being a negative/digital/reproduction vehicle, is capable of being classified as obscene under ss.8 and 29 of the Ordinance
  3. 3 Whether the Tribunal had jurisdiction to examine and classify stampers and their converted viewable content

Ratio Decidendi

A compact disc stamper is an "article" under s.2(1) of the Ordinance because it is a disc and a record of a picture intended to reproduce viewable images; its inverse or digital form and the need for conversion do not prevent it from being obscene; accordingly the Obscene Articles Tribunal had jurisdiction under ss.8 and 29 to examine and classify stampers and the application to quash the Tribunal's classification was dismissed.

Court Disposition

Application dismissed

Orders

  • Application to quash Tribunal classification dismissed
  • Costs order nisi: applicants to pay respondents' costs of the motion, to be taxed if not agreed