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Following is a question by the Hon Sin Chung-kai and a reply by the Secretary for Commerce and Economic Development, Mr Frederick Ma, in the Legislative Council today (March 5):
Question:
It has been reported that concerning the recent incidents of photos on the Internet purported to be of artistes, the Commissioner of Police said last month that people in possession of obscene or indecent photos might commit an offence; an Assistant Commissioner of Police, however, said that the transmission of obscene photos among friends was not a contravention of the law, but these explanations of the law were challenged by the legal sector. On the other hand, any person who possesses for the purpose of publication an indecent article under the circumstances as referred to in section 27A of the Control of Obscene and Indecent Articles Ordinance commits an offence. In this connection, will the Government inform this Council:
(a) whether it has examined the accuracy of the above explanations of the law; if it has, of the outcome of the examination; and
(b) of the respective numbers of prosecutions and convictions under the above Ordinance in the past three years; and, among them, the respective numbers of those involving possession of obscene or indecent articles in a computer for publication on the Internet, as well as the prosecution policy and investigation method of the Police Force in those cases?
Reply:
Madam President,
(a) According to section 21(1)(b) of the existing Control of Obscene and Indecent Articles Ordinance (the Ordinance) (Cap 390), possessing for the purpose of publication any obscene article is an offence, irrespective of whether or not the person involved knows that it is an obscene article. According to section 27A of the Ordinance, possessing for the purpose of publication of any indecent article in contravention of the relevant restrictions or conditions under the Ordinance is an offence, irrespective of whether or not the person involved knows that it is an indecent article. Under section 2(4)(a) of the Ordinance, a person publishes an article if he distributes, circulates, sells, hires, gives or lends the article to the public or a section of the public.
Whether or not the possession of an obscene or indecent article is in breach of the Ordinance mainly depends on whether or not the possession of the article is for the purpose of publication to the public or a section of the public. Generally, whether or not the possession of an article is for the purpose of publication and whether or not "friends" can be excluded from the definition of "the public" or "a section of the public" depend on all the relevant facts of the individual case. The court makes a decision based on the law and the relevant facts.
In view of technological advancement, with particular regard to the characteristics and popularity of the Internet, as well as public concern about the operation of the Ordinance, we are conducting a comprehensive review of the provisions in the Ordinance. The Government plans to consult the public in the second half of this year on ways to amend the Ordinance, including the development of criteria for assessing the content of an article and the assessment system itself, in order to keep pace with the development of our society.
(b) Enforcement of the Ordinance rests with the Television and Entertainment Licensing Authority (TELA), Hong Kong Police Force (HKPF) and Customs and Excise Department according to their respective purviews. In the past three years, the enforcement departments instituted a total of 1,876 prosecutions, with 1,829 convictions secured. Among these, a total of 1,198 prosecutions and 1,178 convictions involve possession of obscene or indecent articles for publication.
Given the vast volume and transient nature of information transmitted over the Internet, TELA and HKPF adopt a complaint-driven approach in dealing with obscene and indecent Internet content. Enforcement departments will examine the Internet content upon receipt of complaints. Generally speaking, if the content is likely to be indecent, TELA will seek cooperation from Internet service providers so that the service providers or webmasters concerned can quickly add a warning or remove the websites or articles involved. If the case is serious (for example, the content is likely to be obscene), HKPF will take appropriate follow-up and enforcement action. In the past three years, the enforcement departments instituted 5 prosecutions against publication of obscene or indecent articles over the Internet and all were convicted.
For all cases involving breaches of the Ordinance, whether arising from the Internet or not, all enforcement agencies including HKPF will take enforcement action in a conscious and fair manner and in strict accordance with the law. Upon receipt of report or complaint, HKPF will first make a preliminary assessment and collect further information as necessary before deciding whether and how the case should be followed up. In the light of evidences obtained in the follow-up investigation and, if necessary, legal advice sought from the Department of Justice, it will then decide whether prosecution should be instituted. All prosecutions initiated by the Police will be based on sufficient evidence to support the charge. It will also be ensured that the prosecution is in compliance with the statutory requirements and procedures, and is administered in accordance with the principle of equality before the law.
Ends/Wednesday, March 5, 2008
Issued at HKT 14:46
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