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Following is a reply by the Secretary for Security, Mr Ambrose S K Lee, to a question by the Hon James To on Police's handling of a recent case in which a member of the public was charged under the Control of Obscene and Indecent Articles Ordinance in the Legislative Council today (March 5):
Question:
It has been reported that in the recent incidents of photos on the Internet purported to be of artistes, a member of the public was charged with the publishing of obscene articles. The magistrate, at the request of the prosecution, ordered that the member of the public be on remand for eight weeks. Subsequently, after the photos concerned had been classified by the Obscene Articles Tribunal ("OAT") as indecent but not obscene articles, the Police quashed the indictment against that member of the public, but said that in handling the case, the Police did not make any mistake or were not negligent. There have been comments that it is improper for the Police to institute prosecution before submitting the photos concerned to OAT for classification, and there have also been comments that in the above case, the prosecution action taken by the Police against publishing obscene articles on the Internet may arouse suspicion of selective law enforcement. In this connection, will the Government inform this Council:
(a) why the above case, in which a member of the public was wrongfully charged and detained, had happened when the Police did not make any mistake or were not negligent; and how it ensures that "prosecuting the innocent" will not happen again under similar circumstances in future;
(b) whether an apology and compensation will be made to the above member of the public who has been wrongfully charged and detained; and
(c) whether it will formulate anew the law enforcement policy in relation to publishing obscene articles on the Internet, in order to ensure that prosecutions are instituted justly?
Reply:
Madam President,
Regarding parts (a) and (b) of the question, the information paper submitted by the Department of Justice to the Legislative Council Panel on Administration of Justice and Legal Services on February 25 has already given a detailed explanation on the case mentioned in the question raised by the Member.
As explained in the paper, the Police had gathered sufficient evidence before making arrest and taking prosecution action. The way the matter had been handled was not in contravention of the enforcement requirements under the Control of Obscene and Indecent Articles Ordinance (COIAO) (Cap. 390). When the case was brought to the court, neither the magistrate nor the defence counsel, after seeing the photograph that was the subject of the charge, disputed the Police's assessment that the photo was obscene. The Department of Justice's subsequent withdrawal of the charge was a decision made entirely in response to a new development that arose in the case.
Whether a defendant should be granted bail or how long a defendant should be remanded in custody is not a matter for the law enforcement agency or the prosecutor to determine. This is an independent decision to be made by the court, taking into account information provided by the various parties concerned. In this case, it was only after hearing submissions from both the prosecution and the defence that the magistrate determined that the defendant should not be admitted to bail.
The fact that in a particular case a prosecution does not proceed to trial or result in a conviction does not necessarily point to the conclusion that there has been impropriety on the part of the law enforcement or prosecution officers in the handling of the case. Such a comment is not fair either. As a matter of fact, the Police have handled this case in accordance with the relevant legislation and the established procedures. There is no question of any deliberate bias, unfairness or negligence. We therefore do not agree that there has been dereliction of duty on the part of the Police and hence any liability for compensation.
Any complaint lodged by any affected person about the Police's handling of a case will be dealt with impartially and will be fully investigated in accordance with the established procedures. In future, the Police will continue to take law enforcement action in a careful manner, having regard to the criminal offences stipulated in, and the enforcement authority conferred by, existing legislation. Where necessary, advice will be sought from the Department of Justice to ensure that every law enforcement and prosecution action complies with the relevant legislative provisions and the principle of equality before the law.
Regarding the final part of the question, in taking enforcement action against obscene and indecent articles, the Police follow the same approach and treat everyone equally and fairly, regardless of the background or identity of the parties involved. On whether the Police should have sent the relevant photograph to the Obscene Articles Tribunal (OAT) for classification before laying the charge, as explained to the Panel on Security on February 29, the COIAO does not require a pre-charge classification by the OAT. On the contrary, section 29(2) of the COIAO makes it clear that in civil or criminal proceedings, articles should only be sent to the OAT for classification when the question of whether the article is indecent or obscene will be a live issue in those proceedings. In this case, the Police considered that it was not necessary to send the photograph to the OAT first for classification. This was a professional judgement of the relevant law enforcement unit, and in so doing, the Police acted within the authority conferred by the COIAO. This notwithstanding, the Police have undertaken that, in future, in case of doubt as to whether an article falls under the classification of obscene or indecent, they will take the initiative to consult the Television and Entertainment Licensing Authority or send the article to the OAT for classification in accordance with section 13(2) of the COIAO before laying charges relating to obscene and indecent articles.
In addition, as the Secretary for Commerce and Economic Development pointed out in his reply to Question No. 4 just now, the Administration is undertaking a comprehensive review of the COIAO. The Department of Justice has indicated that in the process of the review, it will stay vigilant and consider if any review of the related prosecution procedure is necessary.
Ends/Wednesday, March 5, 2008
Issued at HKT 16:53
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