Legislative Council

LC Paper No. CB(1) 1945/98-99
(These minutes have been seen
by the Administration)

Ref: CB1/BC/8/98/2

Bills Committee on
Film Censorship (Amendment) Bill 1998

Minutes of meeting
held on Thursday, 14 January 1999, at 4:30 pm
in Conference Room B of the Legislative Council Building

Members present :

Hon Andrew CHENG Kar-foo (Chairman)
Hon MA Fung-kwok
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung

Members absent :

Hon Cyd HO Sau-lan
Hon SIN Chung-kai
Hon Timothy FOK Tsun-ting, JP

Public officers attending :

Miss Joanna CHOI,
Principal Assistant Secretary (B), Information Technology and Broadcasting Bureau

Mr Eddy CHAN,
Commissioner for Television and Entertainment Licensing

Mr Gary YEUNG,
Assistant Commissioner (Entertainment), Television and Entertainment Licensing Authority

Mr J D Scott,
Senior Assistant Law Draftsman, Department of Justice

Mr Lawrence PENG,
Senior Government Counsel, Department of Justice

Clerk in attendance :

Ms LEUNG Siu-kum,
Chief Assistant Secretary (1)2

Staff in attendance :

Miss Anita HO,
Assistant Legal Adviser 2

Miss Becky YU,
Senior Assistant Secretary (1)3

I Election of Chairman

Nominated by Mr Howard YOUNG and seconded by Mr YEUNG Yiu-chung, Mr MA Fung-kwok was elected as the presiding member for the meeting for election of Chairman.

2. Mr MA Fung-kwok invited nominations for Chairman. Mr Andrew CHENG was nominated by Mr YEUNG Yiu-chung and seconded by Mr Howard YOUNG. Mr Andrew CHENG accepted the nomination.

3. There being no other nominations, Mr Andrew CHENG was declared Chairman of the Bills Committee. Mr Andrew CHENG took over the chair.

II Meeting with the Administration
(Legislative Council Brief (Ref: ITBB(CR)8/6/1(98)Pt.3), LC Paper Nos. LS 68/98-99, CB(1) 741/98-99(02), (03) and (04))

4. At the invitation of the Chairman, the Commissioner for Television and Entertainment Licensing (C for T&EL) informed members that the objectives of the Bill were to improve the operation of the Film Censorship Ordinance (the Ordinance) and to make the regulatory regime more business and user-friendly. The proposed improvements included:

    - exemption of slides of non-commercial nature from censorship requirement;
    - simplification of the appeal mechanism;
    - empowering the Secretary for Information Technology and Broadcasting (SITB) to make regulations on the time frame for delivery of services to the public;
    - shortening the statutory time frame; and
    - empowering the Film Censorship Authority (the Authority) to determine and set forms.

5. On exemption of slides of non-commercial nature from censorship requirement, Mr YEUNG Yiu-chung enquired about the policy intent for the proposed exemption. C for T&EL advised that under the Ordinance, a film, including slides, had to be submitted to the Authority for classification before exhibition. Although the Ordinance provided for certain prescribed classes of films such as cultural, instructional and promotional films to be exempted from classification, they were still required to be submitted to the Authority for examination before exemption from classification could be granted. Such a censorship requirement for slides had drawn particular criticisms from arts, educational and professional bodies which frequently used slides as visual aids in public talks and lectures. They were of the view that the submission requirement had posed unnecessary administrative burdens on the organizers, particularly when the slides were brought along by overseas speakers and had to be used on the very next day. The organizers very often could not have adequate time to arrange for the slides to be submitted to the Authority. Given that the primary policy intent was to regulate the commercial applications of slides rather than the bona fide use of slides for cultural, educational, instructional, promotional or religious events, the Administration therefore proposed to lift the submission requirement for the latter.

6. Mr MA Fung-kwok however cautioned that some exhibitors might exploit the proposed exemption with a view to evading payment of censorship fee. Expressing similar concern, Mr YEUNG asked if exhibitors were liable to penalties for showing indecent slides under the disguise of slides of a non-commercial nature. The Senior Assistant Law Draftsman (SALD) explained that under the proposed section 8A, exemption from classification would only be granted to still films i.e. slides of a cultural, educational, instructional, promotional or religious nature that were exhibited or intended to be exhibited by a cultural, educational, religious or professional organization. Any person who took advantage of the proposed section to show slides for a commercial purpose would commit an offence under section 7 of the Ordinance which prohibited the exhibition of a film unless a certificate of exemption or a certificate of approval had been issued. The person concerned would be liable to a fine of $200,000 and imprisonment for one year on conviction. As regards the onus of proof in the event of institution of proceedings for an offence under section 7 of the Ordinance in relation to the exhibition of a still film, SALD advised that the onus would be on the person who exhibited the film. The Chairman however expressed reservation about the Administration's stance. He remarked that it was uncommon to rest the onus on the defendant.

    (Post-meeting note: In its reply circulated vide LC Paper No. CB(1) 781/98-99(03), the Administration explained the effect of Section 7 of the Ordinance.)

7. Despite the proposed exemption, members noted that the Authority could still require exhibitors to submit still films for censorship by virtue of the proposed sections 8A(3) and (4). The Chairman enquired about the policy intent for the proposed sections and the circumstances under which the Authority would invoke such provisions. C for T&EL advised that the inclusion of the proposed sections in the Bill was to prevent possible abuse of the proposed exemption. He nevertheless admitted that as the Authority did not have the knowledge of when and where still films were or would be exhibited, it could only act on complaints. Upon receipt of a complaint, the Authority would investigate the complaint and, if deemed necessary, invoke the proposed section 8A(3) to require the submission of the still film for classification. After examining the still film, the Authority might approve exhibition of the still film either as a still film exempted from classification or as a particular category of film. If a person was aggrieved by the classification of the slides on moral, religious, educational or other grounds, he might have recourse under the existing provision of section 19 of the Ordinance and seek a review of the Authority's decision by the Board of Review.

8. As regards the rationale for excluding a film in the nature of art from exemption under the proposed section 8A, the Assistant Commissioner (Entertainment) (AC(E)) advised that since an art film could be considered as a film of cultural nature, there was no need to create a separate exemption category.

9. On the time frame for the delivery of services to the public, the Chairman noted that the Law Society of Hong Kong (Law Society) had raised concern on the replacement of the specified time frames in sections 9(1), 10(5), 15(B)(4)(a) and 15K(5) by "prescribed period" in sections 9(3), 10(5), 10(B)(4)(b) and 15K(5). The Law Society considered that without the time limit specified in the Ordinance, the public would have to wait for a longer period for the delivery of services by the Authority. C for T&EL clarified that a new section 29(1)(p) had been added to empower SITB to provide for, by regulation, any period to be prescribed under the Ordinance. The relevant time frames had been set out in the proposed Schedule 5 of the Film Censorship (Amendment) Regulation 1998 which would be made on the same day of enactment of the Amendment Ordinance. C for T&EL explained that the purpose of the proposed amendment was to obviate the need for frequent legislative amendments to the Ordinance.

10. On shortening the statutory time frame, Mr Howard YOUNG noted that the time limit set for a censor to give a decision was shortened from 21 days to 14 days, and that the maximum time which could be allowed for a censor to give a decision on any particular case was reduced from the existing 35 days to 28 days. He enquired about the application of the two different time limits. AC(E) advised that the former was the statutory time for normal cases while the latter was for more complicated cases where a longer period of time was required by the censor to give a decision.

11. On the power of the Authority to determine and set forms, members noted that under the proposed section 29B, the Authority was given power to determine and set the forms that were required for the purposes of the Ordinance by administrative measures without going through legislative amendment. The Chairman expressed concern that the film industry might be confused if the forms were not stipulated in the Regulations. He therefore opined that consideration should be given to amend the existing forms instead of empowering the Authority to set new forms. Mr YEUNG also questioned the need for the proposed section given that the current legislation did not prohibit the Authority to amend the existing forms. AC(E) advised that the objective of the proposed arrangement was to facilitate the Authority to introduce new forms and amend the existing forms in response to changing circumstances at the earliest instance. He assured members that prior consultation with the trade would be carried out before introduction of any new forms. The Principal Assistant Secretary for ITB (B) added that the proposed section was consistent with the provisions under other Ordinances such as the Import and Export Ordinance under which the Director General of Trade was empowered to determine the form of any licence. Mr MA also supported the proposed arrangement since the film industry had not encountered any difficulties in fulfilling the requirements specified in the forms over the past years.

12. Members then proceeded to examine the Bill clause by clause.

Clause 1. Short title and commencement

Clause 2. Restriction on exhibiting films unless exempted or approved

13. No particular comments were made on these clauses.

Clause 3. Films to be submitted to Authority before exhibition

14. Members agreed that letters should be issued to various film industry organizations and organizations which regularly submitted still films for censorship to solicit their views on the proposed exemption for still films.

    (Post-meeting note: The letters were issued on 15 January 1999.)

Clause 4. Section added

15. Members noted the suggestion made by the Law Society on the proposed section 8A(3) in its submission circulated vide LC Paper No. CB(1) 741/98-99(03). The Assistant Legal Adviser 2 opined that a should be added before the phrase in the Chinese text. The Senior Assistant Law Draftsman undertook to consider the suggestion.

Clause 5. Exemptions of films by Authority

Clause 6. Action to be taken by Authority and censor in relation to film which is not exempted

Clause 7. Certificate of approval, notice of refusal to approve and notice concerning excision

16. No particular comments were made on these clauses.

Clause 8. Submission of and conditions on packaging

17. The Chairman opined that instead of deleting the phrase "within 4 working days of such submission" from section 15B(4)(a), the Administration should replace the phrase with "within the prescribed period" to avoid confusion. He also considered that there was a need for the Administration to refine the wordings of the Chinese text of the proposed section 15B(4)(b)(iii) to improve clarity. C for T&EL took note of the Chairman's views.

III Any other business

18. Members agreed that the next meeting would be held on Friday, 22 January 1999, at 4:30 pm.

19. There being no other business, the meeting ended at 6:30 pm.

Legislative Council Secretariat
22 September 1999