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LCQ8: Enforcement of Control of Obscene and Indecent Articles Ordinance
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    Following is a question by the Hon Choy So-yuk and a written reply by the Secretary for Commerce and Economic Development, Mr Frederick Ma, in the Legislative Council today (October 31):

     It has been reported that the Next Media Limited has been involved in 18 cases of publishing indecent articles since 2003. The reports have also indicated that, Oriental Daily News, The Sun, Apple Daily and NOW, a foreign magazine available in Hong Kong, published in December 2005 an identical set of photographs of an overseas female celebrity, but only the former two newspapers were classified as indecent articles, and NOW was not even submitted for classification. In addition, it has also been reported that the Next Media Limited has a record of over 100 convictions for publishing indecent articles so far. In this connection, will the Government inform this Council:

(a) whether the Television and Entertainment Licensing Authority (TELA) has instituted prosecution in respect of all the 18 cases; if it has not, of the reasons for that, and the number of cases in which no prosecution has been instituted yet;

(b) whether there is a time limit for instituting prosecution of offences of publishing and displaying indecent articles;

(c) whether it has assessed if TELA has adopted objective criteria for determining whether or not to submit the publications which have published the photographs of the above overseas female celebrity for classification; if an assessment has been made, of the results; and

(d) given that the Control of Obscene and Indecent Articles Ordinance (Cap 390) stipulates that any person who commits the above offences is liable to a fine of $800,000 and to imprisonment for 12 months on a second or subsequent conviction, whether the Government has examined the definition of "a second or subsequent conviction" referred to in the Ordinance; if it has, of the results of the examination, and whether it has examined if the above record of convictions of the Next Media Limited falls within the circumstances referred to in the definition; if an examination has been made, of the results?

Reply:

Madam President,

     Television and Entertainment Licensing Authority (TELA) conducts routine monitoring of newspapers and magazines on sale in Hong Kong. Upon spotting any article suspected to be in breach of the Control of Obscene and Indecent Articles Ordinance (Ordinance), follow-up actions will be taken by TELA. Given the large number and broad variety of local and foreign newspapers and magazines being sold in Hong Kong and the huge number of outlets all over Hong Kong, it is difficult in practice to include all newspapers and magazines sold in Hong Kong in inspection.  Therefore, routine monitoring by TELA focuses on those publications which are available at newsstands and convenient stores that might be easily accessed by the public.  If the content of a publication is suspected to be in contravention of the Ordinance, TELA will send officers to check up other newspapers and publications put on sale in newsstands and convenient stores to see if they carry the same or similar content.  If so, they will be submitted together with the publication concerned to the Obscene Articles Tribunal (OAT) for classification.  

     As for the case concerning the photographs of an overseas female celebrity, TELA spotted three newspapers during an inspection and submitted all the relevant coverage in the three newspapers to the OAT for classification.  During the inspection, the magazine "NOW" was not found in those newsstands and convenient stores. Thus, it was not submitted to the OAT.

     My reply to the other parts of the question in seriatim is as follows:

(a) There are now a total of 19 cases of publishing indecent articles involving the publications of the Next Media Limited.  TELA has instituted prosecution in respect of these 19 cases.  However, upon request by the defendant, the court has allowed the hearing to be adjourned.

(b) Pursuant to Section 26 of the Magistrates Ordinance, prosecutions of offences under the Ordinance shall be brought within six months from the time when the offence arose.

(c) Published articles are monitored by TELA having regard to the same factors taken into consideration by the OAT in classifying articles as set out in Section 10 of the Ordinance, as well as past cases of classification by the OAT.  In classifying an article, the OAT has to take into account the following factors:

(i) standards of morality, decency and propriety that are generally accepted by reasonable members of the community;

(ii) the dominant effect of an article as a whole;

(iii) the persons or class of persons, or age groups of persons to or amongst whom the article is intended to be published;

(iv) whether the article has an honest purpose or is designed to camouflage unacceptable contents.

(d) If a defendant with a record of conviction for publishing indecent articles is found guilty of publishing indecent articles again, it will be a case of "second or subsequent conviction". As to whether the past records of the concerned company are considered as cases under the aforesaid definition, judgment of such should be made by the Court.  It is not appropriate for us to comment at this stage.

Ends/Wednesday, October 31, 2007
Issued at HKT 12:21

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