CONTROL OF OBSCENE AND INDECENT ARTICLES ORDINANCE

CONTROL OF OBSCENE AND INDECENT ARTICLES ORDINANCE

LAWS OF HONG KONG

CONTROL OF OBSCENE AND INDECENT

ARTICLES ORDINANCE

CHAPTER 390





CHAPTER 390

CONTROL OF OBSCENE AND INDECENT ARTICLES ORDINANCE

ARRANGEMENT OF SECTIONS

Section .................................. Page

PART I

PRELIMINARY

1. Short title.................. .......... ... ... ... ... ... ... ... 3

2. Interpretation ............................ ... ... ... 3

3. Ordinance not to apply incase of certain film . ... 5
4. Effective date of classification and conditions 5

PART II

OBSCENE ARTICLES
TRIBUNALS

5..............Panel of adjudicators ..... ... ... ... ... ... ... ... ... ... ... ... 5

6.........................Appointment of Obscene Articles Tribunals ... ... ... ... ... ... ... 6

7................Membership of Tribunal ..... ... ... ... ... ... ... ... ... ... ... 6

8..........Jurisdiction ................... ... ... ... ... ... ... ... ... ... ... 6
9..........Immunity ................ ..... ... ... ... ... ... ... ... ... ... 7

10..............Guidance to Tribunal ......... ... ... ... ... ... ... ... ... ... ... 7

11.......Powers ........................... ... ... ... ... ... ... ... ... ... 8

12..................Offences relating to a Tribunal ... ... ... ... ... ... ... ... ... ... 8

PART III

CLASSIFICATION OF ARTICLES BY A
TRIBUNAL

13....................Submission of article to Tribunal ... ... ... ... ... ... ... ... ... 9

14..............Interim classification .... ... ... ... ... ... ... ... ... ... ... ... 9

15....................Requirement for full hearing ... ... ... ... ... ... ... ... ... 9

16................Full hearing to be in public ... ... ... ... ... ... ... ... ... ... ... 10
17................Reconsideration of article ... ... . ... ... ... ... ... ... ... ... 10

18.........................Publisher etc. to give notice of classification ... ... ... ... ... ... ... 11

19................Registrar to give notice ... ... ... ... ... ... ... ... ... ... ... 11

20. Registrar to keep repository ... ... ... ... ... ... ... ... ... ... ... 11

PART IV

OFFENCES

21.........................Prohibition on publishing obscene articles ... ... ... ... ... ... ... 11

22. Prohibition on publishing an indecent article to a juvenile . ... ... ... 12

23. Prohibition on display of indecent matter 13

24. Restriction on publishing indecent article ... ... ... ... ... ... ... ... ... 13
25. Offences in relation to interim classification ... ... ... ... ... ... ... ... 13
26. Prohibition on publishing Class III article ... ... ... ... ... ... ... ... 14





Section...................................... Page

27. Restriction on publishing Class II article ... ... ... ... ... ... ... ... 14

28. Defence of public good ..................... ... ... ... .11 ... ... 14

PART V

DETERMINATION BY A
TRIBUNAL

29. Tribunal to have exclusive jurisdiction ... ... ... ... ... ... ... ... 14

PART VI

APPEALS

30.......Appeal ............................... ... ... ... ... ... ... ... 15

31..................Procedure on hearing appeal ... ... ... ... ... ... ... ... ... ... 15

PART VII

ENFORCEMENT

32....................Presumptions relating to publication ... ... ... ... ... ... ... ... ... 15

33................Proof of certain matters .... ... ... ... ... ... ... ... ... ... ... 15

34....................Search and seizure under warrant ... ... ... ... ... ... ... ... ... 16

35.........................Ancillary powers of officers under warrant ... ... ... ... ... ... ... 17

36...........................Seizure by member of Customs and Excise Service ... ... ... ... ... ... 17

37.........................Detained article to be taken before magistrate ... ... ... ... ... ... ... 17

38.........Obstruction ........................ ... ... ... ... ... ... ... ... ... 17

39..............Liability to forfeiture ....... ... ... ... ... ... ... ... ... ... ... ... is
40..............Order for forfeiture .......... ... ... ... ... ... ... ... ... ... ... 18

41....................Procedure in relation to forfeiture ... ... ... ... ... ... ... ... ... is

42..................Obliteration of indecent matter ... ... ... ... ... ... ... ... ... ... 19

43....................Procedure in relation to obliteration ... ... ... ... ... ... ... ... ... 20

PART VIII

RULES, REGULATIONS AND THE POWERS OF THE
REGISTRAR

44..................Chief Justice may make rules ... ... ... ... ... ... ... ... ... ... 20

45..............Powers of Registrar ........... ... ... ... ... ... ... ... ... 21
46. Regulations ......................................21

PART IX

MISCELLANEOUS

47. Repeal of Objectionable Publications Ordinance ... ... ... ... ... ... ... 21
48. Transitional ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 21





CHAPTER 390

CONTROL OF OBSCENE AND INDECENT ARTICLES

To control articles which consist of or contain material that is
obscene or indecent (including material that is violent, depraved
or repulsive), to establish tribunals to determine whether an
article is obscene or indecent, or whether matter publicly
displayed is indecent, and to classify articles as obscene or
indecent or neither obscene nor indecent, andfor matters
incidental thereto.

[1 September 1987.]

PART I

PRELIMINARY

1. This Ordinance may be cited as the Control of Obscene and
Indecent Articles Ordinance.

2. (1) In this Ordinance, unless the context otherwise requires
'adjudicator' means an adjudicator appointed to the panel of
adjudicators under section 5;

'application' means an application under section 13 and 'applicantion
shall be construed accordingly;

'article' means any thing consisting of or containing material to be
read or looked at or both read and looked at, any sound recording,
and any film, video-tape, disc or other record of a picture or
pictures;

'assisting officer' means any police officer or any member of the
Customs and Excise Service assisting an authorized officer under
section 34(2) in the execution of a warrant;

'authorized officer' means any person authorized by a warrant issued
under section 34;

'classification'' means a classification by a Tribunal under Part 111 and
includes an interim classification and 'classified' shall be
construed accordingly;

'full hearing' means a full hearing of a Tribunal under section 15;

'interim classification' means an interim classification made by a
Tribunal under section 14;

'juvenile' means a person under the age of 18 years;

'panel of adjudicators' means the panel of adjudicators established
under section 5;





'presiding magistrate' means a magistrate appointed to preside under
section 7;

'Registrar' means the Registrar of the Supreme Court;

'Tribunal' means an Obscene Articles Tribunal appointed under
section 6;

'warrant' means a warrant issued under section 34(1).

(2) For the purposes of this Ordinance-

(a)a thing is obscene if by reason of obscenity it is not suitable
to be published to any person; and

(b)a thing is indecent if by reason of indecency it is not suitable
to be published to a juvenile.

(3) For the purposes of subsection (2), 'obscenity' and
'indecency' include violence, depravity and repulsiveness.

(4) For the purposes of this Ordinance, a p person publishes an
article if he, whether or not for gain

(a)distributes, circulates, sells, hires, gives or lends the article to
the public or a section of the public;

(b) in the case of an article-

(i) consisting of or containing material to be looked at; or

(ii) that is a sound recording or a film, video-tape, disc or
other record of a picture or pictures,

shows, plays or projects that article to or for the public or a
section of the public.

(5) For the purposes of subsection (4)-

(a)'article' includes anything which is intended to be used,
either alone or as one of a set, for the purpose of
manufacturing or reproducing an article; and

(b)'person' and 'public' include, respectively, a person having
the control or management of anything which is or purports
to be a club, and the members of that club.

(6) For the purposes of this Ordinance, in determining whether any
matter publicly displayed is indecent

(a)there shall be disregarded any part of that matter which is not
exposed to view; and

(b)account may be taken of the effect of juxtaposing one thing
with another.

(7) Any matter which is displayed in or so as to be visible from

(a) any public street or pier, or public garden; and





(b) any place to which the public have or are permitted to have
access (whether on payment or otherwise) except a place to
which the public are permitted to have access only on
payment which is or includes payment for a display of
indecent matter,

shall for the purposes of this Ordinance be deemed to be matter
publicly displayed.

3. This Ordinance all not apply in relation to any-

(a) film approved by hte e Film Censorship Authority under the
Film Censorship Re ulations;

(b)film permitted to be roadcast under section 32 of the
Television Ordinance.

(c) poster, picture, fig~re or text of any advertisement approved
for publication y t c censor under regulation 8 of the Film
Censorship Regula i ns.

4. For the purposes of this Ordinance-

(a) the classification of any article or matter shall not be
regarded as taking effect until notice of that classification is
given by the Registrar in accordance with section 19(2); and

(b)conditions shall not be regarded as imposed under section
8(2)(c) until notice thereof is given by the Registrar in
accordance with section 19(2).

PART II

OBSCENE ARTICLES TRIBUNALS

5. (1) For the purposes of this Ordinance, there shall be established
a panel of adjudicators.

(2) The panel of adjudicators shall consist of such eligible persons
as are, from time to time, appointed to it by the Chief Justice by notice in
writing.

(3) For the purpose of subsection (2), a person shall be eligible to
be appointed to the panel of adjudicators if, in the opinion of the Chief
Justice, he is

(a)ordinarily resident in Hong Kong and has so resided for at
least 7 years; and

(b) proficient in written English or written Chinese.

(4) A person appointed under subsection (2) shall be a member of
the panel of adjudicators for such period, not exceeding 3 years, as may
be specified in his notice of appointment and shall be eligible for
reappointment.





(5) A member of the panel of adjudicators may resign by giving
notice in writing to the Chief Justice.

(6) The name of any adjudicator may be removed from the panel of
adjudicators by the Chief Justice by notice in writing if that adjudicator

(a) ceases to be ordinarily resident in Hong Kong;

(b) is convicted of any offence;

(e) is declared a bankrupt; or

(d)in the opinion of the Chief Justice, neglects or is unable to
perform his duty.

(7) The Chief Justice shall give notice in the Gazette of-

(a) any appointment by him under subsection (2); and

(b)any removal of the name of an adjudicator by him under
subsection (6).

6. (1) The Registrar may appoint such number of tribunals as may
from time to time be necessary for the purposes of this Ordinance.

(2) A tribunal appointed under this section shall be known as an
Obscene Articles Tribunal.

7. (1) A Tribunal shall consist of the following persons appointed
by the Registrar

(a) a magistrate who shall preside; and

(b)2 or more adjudicators selected from the panel of
adjudicators.

(2) 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.

(3) Any point of law arising during any proceedings before a
Tribunal shall be determined by the presiding magistrate who shall give
reasons therefor in writing.

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 whether--

(a) the article is obscene or indecent;

(b) the matter is indecent; or

(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.





(2) In relation to any article submitted to it under section 13 a
Tribunal may

(a) refuse an application to make a classification in respect of any
article if it considers that article cannot be adequately
described for the purpose of giving notice of classification
under section 19; or

(b) make a classification that the article is-

(i) a Class I article if it is of the opinion that the article is
neither obscene nor indecent;

(ii) a Class II article if it is of the opinion that the article is
indecent; or

(iii) a Class III article if it is of the opinion that the article is
obscene; and

(c)in respect of any classification that an article is a Class II
article and at the time of making that classification, impose
conditions relating to the publication of that article.

(3) For the purposes of subsection (1)(c) the opinion of an expert
as to the ground of defence in section 28 may be admitted either to
establish or negative that ground.

9. Any-

(a) member of a Tribunal; and

(b) witness, party to any proceedings, representative or other
person appearing before a Tribunal,

shall have the same privileges and immunities in any proceedings
before a Tribunal or in the exercise of a Tribunal's functions as he would
have before a court.

10. (1) 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

(a)standards o morality, decency and propriety that are generally
accepted ed by reasonable members of the community, and in
relation thereto may have regard to

(i) in the case an article, any decision of the Film
Censorship Authority under the Film Censorship Regulations
to approve or re se to approve a film; and

(ii) in the case of matter publicly displayed, any decision of the
censor under regulation 8 of the Film Censorship
Regulations to approve or refuse to approve any poster, picture,
figure or text of any advertisement for publication;

(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.

(2) The opinion of an expert as to any of the matters to which a
Tribunal must or may have regard under subsection (1) may be admitted
in any proceedings before a Tribunal either to establish or negative that
matter.

11. A Tribunal-

(a)when exercising its jurisdiction under Part V shall have the
powers of a magistrate under the Magistrates Ordinance and
for that purpose references in that Ordinance to a magistrate
shall be deemed to include references to a Tribunal.,

(b)when exercising its jurisdiction under Part III may, subject to
that Part and Part VIII, determine its own procedure and in
particular may

(i) receive and consider any material, whether by way of
oral evidence, written statements, documents or otherwise,
notwithstanding that such material would not be admissible in
evidence in civil or criminal proceedings;

(ii) by notice in writing signed by the presiding magistrate,
require any person to attend before it at any hearing and to
give evidence and produce documents;

(iii) administer oaths and affirmations;

(iv) examine on oath, affirmation or otherwise any person
attending before it at any hearing and require such person to
answer all questions put by or with the consent of that
Tribunal;

(v) determine the manner in which the material mentioned in
sub-paragraph (i) shall be received; and

(vi) determine the manner in which any article shall be
viewed, seen or examined by that Tribunal;

(c) may do all things-

(i) ancillary to the powers conferred by this section; or

(ii) reasonably necessary for the discharge of its functions
under this Ordinance.

12. Any person who-

(a)refuses or fails to comply with any lawful order, requirement
or direction of a Tribunal; or

(b)disturbs or otherwise interferes with the proceedings of a
Tribunal,





commits an offence and is liable to a fine of $10,000 and to
imprisonment for 6 months.

PART III

CLASSIFICATION OF ARTICLES BY A TRIBUNAL

13. (1) The author, printer, manufacturer, publisher, import-
er, distributor or owner of the copyright of any article or any person
who commissions the design, production or publication of any
article may, by application in the prescribed form, submit that
article to the Registrar for classification by a Tribunal.

(2) The Attorney General and any public officer authorized in
that regard by the Chief Secretary may, by application in the
prescribed form, submit any article to the Registrar for classification
by a Tribunal.

14. (1) Subject to section 17(2), where an article is submitted
under section 13 a Tribunal shall-

(a)consider it in private and without the attendance of the
applicant or any other person and, within 5 days of that
submission, make an interim classification in respect of
that article; or

(b)subject to subsection (2), if at the expiry of the period
mentioned in paragraph (a) it has not made an interim
assessment, consider that application as if it were a require-
ment for a full hearing under section 15.

(2) The presiding magistrate may, at any time during the
period mentioned in subsection (1)(a), extend that period by any
period not exceeding 5 days and shall give notice of that extension to
the applicant.

(3) Subject to section 7(3), a Tribunal shall not be required to
give any reasons for any interim classification but may give guidance
to the applicant in relation to the article submitted.

15. (1) Where a Tribunal makes an interim classification in
respect of an article any person who submitted, or would have been
entitled to submit, the article under section 13 may-

(a)within 5 days of that interim classification taking effect;
and

(b) by notice in writing in the prescribed form to the Registrar,
require a Tribunal to review that interim classification at a full
hearing.

(2) At a full hearing-

(a)any person who submitted the article the subject of that
full hearing and any person who would have been entitled





to submit it under section 13(1), the Attorney General, and
their representatives, may appear and be heard; and

(b)any magistrate and any adjudicator shall be competent to sit
as a member of the Tribunal at that full hearing
notwithstanding that he was a member of the Tribunal which
made the interim classification.

(3) The Registrar shall, at least 5 days prior to a full hearing, give
notice of that full hearing once each in an English language newspaper
and a Chinese language newspaper published daily and circulating
generally in Hong Kong but nothing in this subsection shall require the
Registrar to give notice of any adjourned hearing of that full hearing.

(4) If in accordance with subsection (3) notice is published in the
newspapers referred to in that subsection on different days, notice
shall be deemed to have been given on the last of those days.

(5) If under subsection (1) no person requires a review of an
interim classification at a full hearing, that interim classification shall be
deemed to be the classification of the Tribunal which made it.

16. (1) Subject to subsections (2) and (3), a full hearing shall be
conducted in public.

(2) Where a Tribunal is of the opinion that the interests of public
morality require that all or any persons should be excluded from a full
hearing the presiding magistrate may direct that those persons be
excluded accordingly; but the power conferred by this subsection shall
not be exercised for the purpose of excluding any person who submitted
the article, or any person who would have been entitled to submit it,
under section 13 or his representative, or any bona fide reporter for any
newspaper, magazine or radio or television station.

(3) A Tribunal may, whether or not it gives a direction under
subsection (2), make an order forbidding the broadcasting, whether by
radio or television, or other publication of any report or account of the
whole or any part of any evidence adduced before it.

17. (1) Subject to subsection (2), a Tribunal may of its own motion,
or at the request of any person who submitted an article or of any
person who would have been entitled to submit it under section 13,
reconsider the classification of the article and may alter or confirm that
classification.

(2) A Tribunal may refuse a request to reconsider the classification
of any article submitted under section 13 if that article was classified
within a period of 3 years prior to that submission.

(3) This Part shall apply to any motion or request to reconsider a
classification as if such motion or request were a requirement for a full
hearing under section 15.





18. (1) The printer, manufacturer, publisher, distributor and
importer of any article which is classified as a Class I or Class II article
shall give notice in the prescribed manner of that classification and of
any conditions imposed under section 8(2)(c) to any person to whom
after that classification has taken effect he publishes more than 2
copies.

(2) Any person who contravenes subsection (1) commits an
offence and is liable to a fine of $200,000 and to imprisonment for 12
months.

19. (1) The Registrar shall give notice in accordance with
subsection (2)

(a) of any interim classification;

(b) of any classification

(i) made at a full hearing;

(ii) deemed to be the classification of a Tribunal under
section 15(5); or

(iii) made following a reconsideration under section 17; and

(c) of any conditions imposed under section 8(2)(c).

(2) Notice under subsection (1) shall be given once each in an
English language newspaper and a Chinese language newspaper
published daily and circulating generally in Hong Kong.

(3) If notice in accordance with subsection (2) is published in the
newspapers referred to in that subsection on different days, notice shall
be deemed to have been given on the last of those days.

(4) The Registrar shall keep and maintain, in such form as he thinks
fit, a register of notices given under this section.

20. (1) The Registrar shall keep and maintain, in such manner as he
thinks fit, a repository for the keeping of articles submitted for
classification under section 13.

(2) Except with the consent of a Tribunal all articles submitted for
classification under section 13 shall be kept in the repository for a
period. of 5 years from the date on which it is classified and may
thereafter be disposed of in accordance with the directions of the
Registrar.

PART IV

OFFENCES

21. (1) Subject to subsection (2) any person who

(a) publishes;

(b) possesses for the purpose of publication; or





(c) imports for the purpose of publication,
any obscene article, whether or not he knows that it is an obscene
article, commits an offence and is liable to a fine of $1,000,000 and to
imprisonment for 3 years.

(2) It shall be a defence to a charge-
(a)under subsection (1) for a defendant to prove that, at the time
the offence is alleged to have been committed, the article the
subject of the charge was classified as a Class 111 article; but
he may be convicted of any other offence under this Part
established by the evidence as if he had been charged with
that other offence;

(b) under subsection (1) for a defendant to prove that the article
the subject of the charge is, or was at the time the offence is
alleged to have been committed, classified as a Class I or a
Class II article;

(c)under subsection (1)(b) or (c) for a defendant to prove that. at
the time the offence is alleged to have been committed, the
article the subject of the charge was possessed or imported
by him

(i) for the purpose of submitting it, a copy thereof or a print
therefrom to the Registrar under section 13; or

(ii) by a person licensed to broadcast under section 8 of the
Television Ordinance for the purpose of submitting it to the
panel of censors under section 32 of that Ordinance;

(d)under subsection (1)(b) for a defendant to prove that, at the
time that offence is alleged to have been committed, he

(i) had had no reasonable opportunity to inspect the article
the subject of the charge; and

(ii) had reasonable grounds for believing that article was
not obscene. and

(e)under subsection (1)(e) for a defendant to prove that, at the
time that offence is alleged to have been committed, he had
reasonable grounds for believing that the article the subject
of the charge was not obscene.

22. (1) Subject to subsection (2), any person who publishes any
indecent article to a person who is a juvenile, whether or not he knows
that it is an indecent art article or that such person is a juvenile,
commits an offence and is liable to a fine of $200,000 and to
imprisonment for 12 months.

(2) It shall be a defence to a charge under this section to prove that

(a)the article the subject of the charge is, or was at the time that
the offence is alleged to have been committed, classified as a
Class I article;





(b)at the time that the offence is alleged to have been committed,
the person so charged inspected an identity card or passport
purporting to be the identity card or passport of the juvenile
and believed on reasonable grounds that the juvenile was not
a juvenile; or

(c)the indecent article was published in compliance with
conditions relating to its publication imposed by a Tribunal
under section 8(2)(c).

23. (1) If any indecent matter is publicly displayed the person
making the display and any person causing or permitting the display to
be made, whether or not he knows that the matter is indecent, commits
an offence and is liable to a fine of $200,000 and to imprisonment for 12
months.

(2) Nothing in this section shall apply in relation to any matter

(a) included in a television broadcast by a company licensed to 1
broadcast under the Television Ordinance; or

(b)included in the display of an article in a bona fide art gallery
or museum and visible only from within that gallery or
museum.

24. (1) No person may publish an indecent article unless there is
clearly and conspicuously displayed on that article or on a wrapper
enclosing that article, a notice in the following form

'WARNING: THIS ARTICLE CONTAINS MATERIAL

WHICH MAY OFFEND AND MAY NOT
BE SOLD TO A PERSON UNDER THE
AGE OF 18 YEARS

(2) Subject to subsection (3), any person who contravenes
subsection (1), whether or not he knows that the article is an indecent
article, commits an offence and is liable to a fine of $200,000 and to
imprisonment for 12 months.

(3) It shall be a defence to a charge under this section to prove that
the article the subject of the charge is, or was at the time the offence is
alleged to have been committed, classified as a Class I article.

25. Where an article is classified as a Class III article by virtue
only of an interim classification, any person who publishes that article,
whether or not he knows it has been so classified, commits an offence
and is liable to a fine of $1,000,000 and to imprisonment for 3 years.





26. Any person who-

(a) publishes;

(b) possesses for the purpose of publication;

(c) imports for the purpose of publication,

any article classified by a Tribunal, other than by virtue only of an
interim classification, as a Class III article, whether or not he knows
it has been so classified, commits an offence and is liable to a fine of
$1,000,000 and to imprisonment for 3 years.

27. Where, in relation to any article classified as a Class II
article, a Tribunal has imposed conditions under section 8(2)(c), any
person who publishes that article otherwise than in accordance with
those conditions, whether or not he knows it has been so classified or
that those conditions have been imposed, commits an offence and is
liable to a fine of $200,000 and to imprisonment for 12 months.

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.

PART V

DETERMINATION BY A TRIBUNAL

29. (1) A Tribunal shall have exclusive jurisdiction to deter-
mine whether-

(a) any article is obscene or indecent;

(b) any matter that is publicly displayed is indecent; or

(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.

(2) Subject to subsection (3), where in any civil or criminal
proceedings before a court or magistrate a question arises as to any
of the matters mentioned in subsection (1), that court or magistrate
shall refer that question to a Tribunal; and the parties to those civil
or criminal proceedings and, in the case of proceedings to which a
public officer is not a party, the Attorney General or their represen-
tatives, may appear and be heard at any hearing of that Tribunal
relating to that reference.

(3) Where in any civil or criminal proceedings before a court
or magistrate a person admits that an article is obscene or indecent
or that any matter publicly displayed is indecent the court or
magistrate may accept that admission and so find against that
person, and subsections (1) and (2) shall not apply.





PART VI

APPEALS

30. (1) Any party to any proceedings before a Tribunal may appeal
to the High Court against a decision of that Tribunal on a point of law
by giving notice of appeal in writing setting out the grounds of that
appeal to-the Registrar within 14 days of that decision.

(2) Where notice of appeal is given under subsection (1) the
Registrar shall fix a date for the hearing of the appeal which shall not be
later than 28 days after the giving of that notice; but if, in the opinion of
the Registrar, it is not practicable for him to fix a date within that period
he may fix a date not later than 56 days after the giving of that notice.

31. In the case of any appeal under section 30-
(a)the High Court may confirm the decision of the Tribunal or
may order it to re-hear or re-open the proceedings to be
determined in accordance with the point of law decided by it;

(b)the powers and duties of a High Court shall be exercised and
performed by the Chief Justice or by such one of the judges
as the Chief Justice shall from time to time appoint; and

(c)the High Court may make such order as to costs as it may
think fit.

PART VII

ENFORCEMENT

32. For the purposes of this Ordinance, a person shall-

(a)be deemed to possess an article for publication if he
possesses it with the intention of manufacturing or
reproducing a copy of it for publication; and

(b)be presumed, until the contrary is proved, to possess an
article for publication if he possesses more than 2 copies of it.

33. (1) A document purporting to be under the hand of the
Registrar certifying that

(a)an article was at any time classified as a Class 1, a Class II or a
Class III article;

(b)notice in accordance with section 19(2) was given in the
manner and on the date specified in that document in respect
of that article,





shall be admissible on its production and without further proof in
any proceedings and such document shall be conclusive evidence of
the facts contained in it unless it is proved that the document was not
signed by the Registrar.

(2) A document purporting to be under the hand of a presid-
ing magistrate stating a decision or determination of a Tribunal shall
be admissible on its production and without further proof in any
proceedings and such document shall be conclusive evidence of the
facts contained in it unless it is proved that the document was not
signed by a presiding magistrate.

34. (1) A magistrate may, if he is satisfied by information on
oath that there is reasonable ground for suspecting that there is in or
on any premises, place, vessel, aircraft or vehicle-

(a)any article in respect of which an offence under section 21
or 26 has been or is being or is about to be committed; or

(b)anything which is, or contains, evidence of the commission
of any such offence,

issue a warrant authorizing any person being a police officer or
member of the Customs and Excise Service to enter such premises,
place, vessel, aircraft or vehicle, and search for, seize, remove and
detain any such article or thing.

(2) An authorized officer may-

(a)if he is a police officer, call on any member of the Customs
and Excise Service; or

(b)if he is a member of the Customs and Excise Service, call
on any police officer,

to assist him in the exercise of the powers conferred by this section.

(3) An authorized officer or an assisting officer may, at any
time of the day or night-

(a)enter and search any premises or place named in the
warrant; or

(b)stop, board and search any vessel, aircraft or vehicle
named in the warrant.

(4) An authorized officer or an assisting officer may seize,
remove and detain-

(a)any article in respect of which he reasonably suspects that
an offence under section 21 or 26 has been or is being or is
about to be committed; or (Amended, L.N. 245/87)

(b)anything whatever which he reasonably suspects to be, or
to contain, evidence of the commission of such an offence.

(5) In this section-

'aircraft' does not include a military aircraft;





'vessel' does not include a ship of war or a ship having the status of a
ship of war.

35. An authorized officer or an assisting officer may in relation to
his powers under a warrant

(a) use such force as is reasonably necessary to enter any
premises or place which he is empowered to enter and search;

(b) use such force as is reasonably necessary to stop, board, or
search any vessel, aircraft or vehicle which he is empowered
to stop, board and search;

(c)use such force as is reasonably necessary to remove any
person or thing obstructing him in the exercise of those
powers;

(d)detain any person found in or on any premises, place, vessel,
aircraft or vehicle which he is empowered to enter and search
until it has been searched; and

(e)prevent any person from approaching, boarding or leaving
any vessel, aircraft or vehicle which he is empowered to enter
and search until it has been searched.

36. In addition to any power he may have under section 34, any
member of the Customs and Excise Service may seize, remove and
detain

(a)any article in respect of which he reasonably suspects that an
offence under section 21(1)(e) or 26(c) has been or is being or
is about to be committed; and

(b)anything whatever which he reasonably suspects to be, or to
contain, evidence of the commission of such an offence.

37. Any article or thing which has been detained under section 34
or 36 and is liable to forfeiture under section 39 shall, as soon as
practicable after that detention, be taken before a magistrate to be dealt
with in accordance with this Part; but this section shall not apply in the
case of any article which is the subject of a charge under Part IV.

38. Any person who-

(a) obstructs an authorized officer or an assisting officer in the
exercise of any power conferred by this Ordinance; or

(b)fails to comply with any reasonable requirement, direction or
demand given or made by an authorized officer or an assisting
officer in the execution of the warrant,

commits an offence and is liable to a fine of $10,000 and to imprisonment
for 6 months.





39. (1) Any article which is-

(a) obscene; or

(b) classified, other than by virtue only of an interim classifica-
tion, as a Class 111 article,

shall be liable to forfeiture.

(2) Subject to subsection (3), any-

(a) machinery or apparatus used for projecting or showing; or

(b) machinery, plate, implement, utensil, photographic film or
material used for the purpose of printing copies of,

any article mentioned in subsection (1) shall be liable to forfeiture.

(3) Where an article submitted under section 13(1) is classified
as a Class III article, nothing mentioned in subsection (2)(b) shall be
liable to forfeiture under this section by reason only that it was used
to print, manufacture or reproduce that article or copies of that
article for the purpose of that submission.

40. (1) Subject to subsection (2) and section 41, where an
application is made to a magistrate for an order for forfeiture-

(a)he shall, in the case of an article that is before him and is
liable to forfeiture under section 39(1), order it to be
forfeited;

(b)he may, in the case of a thing that is before him and is liable
to forfeiture under section 39(2), order it to be forfeited.

(2) An order for forfeiture shall not be made under subsection
(1) if any ground of defence under section 21(2)(b), (c), (d) or (e), or
section 28 in respect of the publication of an article is proved,

(3) An order for forfeiture of an article or thing may be made
under subsection (1) notwithstanding that no person is convicted of
any offence in connexion with that article or thing.

(4) Any article or thing which is ordered to be forfeited under
subsection (1) shall be disposed of in such manner as the magistrate
shall direct.

41. (1) Subject to subsections (3) and (4), before making an
order for forfeiture of any article or thing under section 40 the
magistrate shall issue a summons to-

(a)the occupier of any premises or, in the case of a stall, the
owner of the stall, in or from which the article or thing was
seized;

(b)the owner of any vessel, aircraft or vehicle in or from which
the article or thing was seized;

(c) the owner of the article or thing seized,





to appear on a day specified in the summons to show cause why the
article or thing should not be forfeited.

(2) In addition to any person mentioned in subsection (1), any
other person being the author or manufacturer of any article seized
or a person into whose hands any such article may have passed
before seizure, or a person who has an interest in any article or thing
seized, may appear before the magistrate on the day specified in the
summons to show cause why the article or thing should not be
forfeited.

(3) If the magistrate is satisfied that any person specified in
subsection (1) cannot for any reason be found or ascertained, he
may dispense with the issue of a summons to that person.

(4) If any summons issued under subsection (1) has not for
any reason been served and the magistrate is satisfied that all
reasonable efforts were made to serve the summons on the person
named in the summons he may make an order of forfeiture under
section 40 notwithstanding that the summons was not served and
that the person named in the summons is not given an opportunity
to show cause why the article or thing should not be forfeited.

(5) An order for forfeiture of any article shall, unless the
magistrate considers that there are special reasons for directing
otherwise, apply to the whole of the article.

(6) In this section 'owner'

(a) in the case of a stall includes any occupier of that stall;

(b) in the case of a vessel includes any charterer and the master
of that vessel;

(c) in the case of an aircraft includes any operator of that
aircraft; and

(d) in the case of a vehicle includes the driver of that vehicle.

42. (1) Subject to subsection (2) and section 43, if, upon the
application of any public officer, a magistrate is satisfied that any
indecent matter is publicly displayed on any building or other
structure he may order the owner of the building or structure to
remove or efface that indecent matter.

(2) An order shall not be made under subsection (1) if the
ground of defence under section 28 is proved in respect of the public
display of any matter.

(3) If a person against whom an order is made under subsec-
tion (1) fails to comply with the order within the time specified in the
order, or if no time is specified, within a reasonable time, the
magistrate may by warrant empower any police officer, with such
assistance as may be necessary, to enter and if necessary to break
into or forcibly enter such premises or place and execute that order.





(4) A police officer in executing an order under subsection (3)
shall have all the powers of a police officer acting in the execution of
a warrant under section 34.

(5) The Commissioner of Police may apply to a magistrate for
an order that a person who has failed to comply with an order made
against him under subsection (1) shall pay any expenses reasonably
incurred by a police officer in the execution of the order under
subsection (3) and the magistrate may make an order for such
payment under section 69 of the Magistrates Ordinance notwith-
standing that it may exceed the amount mentioned in that section.

43. (1) Before making an order to remove or efface any
indecent matter under section 42 the magistrate shall, unless he is
satisfied that the owner of the building or other structure mentioned
in that section 42 cannot for any reason be found or ascertained,
issue a summons to him to appear on a day specified in the summons
to show cause why an order should not be made to remove or efface
that indecent matter.

(2) In addition to the person mentioned in subsection (1) any
other person being the owner or manufacturer of the indecent
matter mentioned in section 42 may appear before the magistrate on
the day specified in the summons to show cause why the order to
remove or efface that indecent matter should not be made.

(3) Subsections (4) and (6) of section 41 shall apply in relation
to an order to remove or efface indecent matter under section 42 as
they apply in relation to an order for forfeiture under section 40.

PART VIII

RULES, REGULATIONS AND THE POWERS OF THE REGISTRAR

44. The Chief Justice may make rules relating to the practice
and procedure to apply to proceedings before a Tribunal, or
magistrate, or in any court, under this Ordinance and to appeals
under this Ordinance and, in particular, may make rules to provide
for-

(a) the manner of making application under this Ordinance;

(b)the reference of questions from a court or magistrate to a
Tribunal;

(c)the method of recording a classification or determination
of a Tribunal;

(d) the service of documents;

(e)the form of any document for the purpose of any proceed-
ings in a Tribunal or for any appeal;

rights of audience before a Tribunal;

(g)the giving of notice relating to any proceedings before a
Tribunal or any appeal under section 30; and





(h) the award, taxation and recovery of costs relating to any
proceedings in a Tribunal.

45. The Registrar may-

(a) give directions as to the distribution and disposal of the
business of a Tribunal;

(b) determine any form of document to be made or issued by a
Tribunal; and

(c) permit such person or class of person as he thinks appro-
priate on payment of any prescribed fee to search-

(i) the register of notices kept by him under section
19(4); and
(ii) the repository of articles kept by him under section
20.

46. The Governor in Council may make regulations to provide
for-

(a) fees;

(b) the manner of giving of notice under section 18;

(c) the empowering of a Tribunal or the Registrar to waive
any prescribed fee; and

(d) the payment of fees and allowances to adjudicators.

PART IX

MISCELLANEOUS

47. The Objectionable Publications Ordinance is repealed.

48. Any proceedings under the Objectionable Publications
Ordinance commenced before the commencement of this Ordinance
may, notwithstanding the repeal of the Objectionable Publications
Ordinance by section 47, be continued as if that Ordinance had not
been repealed.
Originally 9 of 1987. L.N. 245/87. L.N. 278/87. Short title. Interpretation. [cf. 7 & 8 Eliz. 2c.66,s.1(2).] [cf. 1964,c. 74,s.2(1)] [cf. 1981,c. 42,s.1(5)] [cf. 1981,c. 42,s.1(2).] Ordinance not to apply in case of certain films and advertising material. (Cap. 172,sub.leg.) (Cap. 52.) Effective date of classification and conditions. Panel of adjudicators. Appointment of Obscene Articles Tribunals. Membership of Tribunal. Jurisdiction. Immunity. Guidance to Tribunal. [cf. NZ, 1963, No. 22,s.11.] (Cap. 172,sub.leg.) Powers. (Cap. 227.) Offences relating to a Tribunal. Submission of article to Tribunal. Interim classification. Requirement for full hearing. Full hearing to be in public. Reconsideration of article. Publisher etc. to give notice of classification. Registrar to give notice. Registrar to keep repository. Prohibition on publishing obscene articles. (Cap. 52.) Prohibition on publishing an indecent article to a juvenile. Prohibition on display of indecent matter. [cf. 1981,c. 42,s.1.] (Cap. 52.) Restriction on publishing indecent article. Offences in relation to interim classification. Prohibition on publishing Class III article. Restriction on publishing Class II article. Defence of public good. Tribunal to have exclusive jurisdiction. [cf. NZ, No. 22 of 1963,s.12.] Appeal. Procedure on hearing appeal. Presumptions relating to publication. Proof of certain matters. Search and seizure under warrant. Ancillary powers of officers under warrant. Seizure by member of Customs and Excise Service. Detained article to be taken before magistrate. Obstruction. Liability to forfeiture. Order for forfeiture. Procedure in relation to forfeiture. Obliteration of indecent matter. (Cap. 227.) Procedure in relation to obliteration. Chief Justice may make rules. Powers of Registrar. Regulations. Repeal of Objectionable Publications Ordinance. (Cap. 150, 1975 Ed.) Transitional. (Cap. 150, 1975 Ed.)

Originally 9 of 1987. L.N. 245/87. L.N. 278/87. Short title. Interpretation. [cf. 7 & 8 Eliz. 2c.66,s.1(2).] [cf. 1964,c. 74,s.2(1)] [cf. 1981,c. 42,s.1(5)] [cf. 1981,c. 42,s.1(2).] Ordinance not to apply in case of certain films and advertising material. (Cap. 172,sub.leg.) (Cap. 52.) Effective date of classification and conditions. Panel of adjudicators. Appointment of Obscene Articles Tribunals. Membership of Tribunal. Jurisdiction. Immunity. Guidance to Tribunal. [cf. NZ, 1963, No. 22,s.11.] (Cap. 172,sub.leg.) Powers. (Cap. 227.) Offences relating to a Tribunal. Submission of article to Tribunal. Interim classification. Requirement for full hearing. Full hearing to be in public. Reconsideration of article. Publisher etc. to give notice of classification. Registrar to give notice. Registrar to keep repository. Prohibition on publishing obscene articles. (Cap. 52.) Prohibition on publishing an indecent article to a juvenile. Prohibition on display of indecent matter. [cf. 1981,c. 42,s.1.] (Cap. 52.) Restriction on publishing indecent article. Offences in relation to interim classification. Prohibition on publishing Class III article. Restriction on publishing Class II article. Defence of public good. Tribunal to have exclusive jurisdiction. [cf. NZ, No. 22 of 1963,s.12.] Appeal. Procedure on hearing appeal. Presumptions relating to publication. Proof of certain matters. Search and seizure under warrant. Ancillary powers of officers under warrant. Seizure by member of Customs and Excise Service. Detained article to be taken before magistrate. Obstruction. Liability to forfeiture. Order for forfeiture. Procedure in relation to forfeiture. Obliteration of indecent matter. (Cap. 227.) Procedure in relation to obliteration. Chief Justice may make rules. Powers of Registrar. Regulations. Repeal of Objectionable Publications Ordinance. (Cap. 150, 1975 Ed.) Transitional. (Cap. 150, 1975 Ed.)

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