Journal of International Commercial Law and Technology
Vol. 4, Issue 2 (2009 )
Policing Obscenity in Hong K ong
Rebecca Ong
School of Law, City University of Hongkong
lwong@c ityu.edu.hk
Abstract: The term 'obscenity' has no universal definition. It is often ill -defined, subjective
and highly dependent on the culture of the communities in question and between communities.
Nevertheless, the aim of the law on obscenity is to prevent publication and distribution of materials,
which are potentially harmful to its readers, viewers and audience. The purpose of this paper is three
fold. Firstly, it briefly considers the law on obscenity in the United Kingdom, and in the United
States. Secondly, the paper discusses and evaluates the law relating to obscenity in Hong Kong in
the light of the recent publication and distribution of materials which could be argued to fall within
the realm of obscenity. Finally, it considers whether the law on obscenity would ever be able to fit
into an “acceptable community standard”.
1.
Introduction
The law on obscenity is usually concerned with regulating the publication and distribution of materials which are
considered inappropriate for a certain segment of society with the aim of protecting readers or its audience from
potential harmful effects caused by the materials. The term ‘obscene’ comes from the Latin term ‘obscenus’
meaning ‘foul, repulsive, detestable’. However, the term normally poses various problems since it is often ill
defined, subjective and highly dependent on the culture of the communities in question and between communities.
In other words, there is no one acceptable definition
what constitutes ‘obscenity’. Most states have laws on
what is considered acceptable and appropriate and censorship is often used to control and regulate materials within
the definition provided. Thus the first part of this
briefly examines what constitutes obscenity in the United
Kingdom and the United States. It then discusses and evaluates the law relating to obscenity in Hong Kong with
reference to a number of recent events. The paper the concludes with whether ‘an acceptable community
standard’ can ever be achieved?
2.
Obscenity in the U.K and the U.S
The terms “obscene” and “indecent” are often viewed as synonymous although these terms bear different
meanings. Perhaps the use of these terms together is ntended to reflect the degree of gravity in relation to the
level of repugnance and distaste that is attributed to the material in question with obscenity being reserved for a
higher degree of repulsiveness. It is helpful to provide a reference point as to what constitutes obscenity. As
Hong Kong was under the British rule before the handover in 1997, it might be useful to briefly refer to what is
obscenity in the United Kingdom. The current effective Act in the U.K the Obscene Publication Act of 1959
and 1964 . The 1959 Act provided the legal test for obscenity as ‘a tendency to deprave and corrupt’. This is seen
in section 1 of the Act which states
that “an article is to be deemed obscene if its effect or (where the article comprises two or more
distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and
corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear
the matter contained or embodied in it”.
It is worth noting that the predecessor to the 1959 Act was the Obscene Publication Act 1857 which was
introduced by Lord Campbell, the Lord Chief Justice.
support of the Act, Lord Campbell stressed that the ‘the
act was intended to exclusively apply to works written for the single purpose of corrupting the morals of youth and
of a nature calculated to shock the common feelings of decency in an well regulated mind…’. In addition to the
test of obscenity, the 1959 Act introduced a defence against the charge of obscenity on the grounds of literary
merit. This defence of public good specifically exempts works in ‘the interests of science, literature, art or
learning, or of other objects of general concern’.
It is clear that the term “a tendency to deprave and corrupt” is wide and seems to provide the courts in the
United Kingdom with great discretion. The courts however, have been areful not to extend the meaning it was
intended beyo nd the test provided for in the Act. This can be seen for example, in the case of R v Anderson &
Others where the Court of Appeal did not agree with the trial judge’s direction to the jury in their suggestion that
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‘obscene’ included in its meaning the dictionary sense of repulsive filthy, loathsome or lewd. Notwithstanding
Anderson, R v Hicklin provided some light as to how the test might be applied. In Hicklin , pamphlets written by a
militant Protestant, entitled ‘The Confessional Unmasked: Shewing the Depravity of the Romanish Priesthood’,
the ‘Iniquity of the Confessional’, and the ‘Questions Put to Females in Confession’ were seized as being
‘obscene’. The pamphlets dealt mainly with the author's
views of the dangers of the confessional,
illustrated by the type of questions Roman Catholic priests allegedly asked young ladies.
R v Hicklin is important in that it laid down the test for determining obscenity. It held that the test should
reside in the material's “tendency to deprave and corrupt those whose minds are open to such immoral influences
and into whose hands a publication of this sort may fall”. The test applies whether or not the ‘obscene part’ of the
work was based on isolated passages taken out of context. The Act’s first test was that against Penguin Books for
the publication of D.H Lawrence’s book entitled Lady Chatterley’s Lover. The publishers’ not guilty verdict was
seen as a major milestone as far as publication of explicit materials is concerned. In that case, Byrne J said
“To ‘deprave’ means to make morally bad, to pervert, to debase or corrupt morally. To corrupt’
means to render morally unsound, rotten, to destroy the moral purity or chastity, to pervert or ruin a
good quality, to debase, to defile … ”
In the United States, the issues concerning obscenity, sexual and pornographic content have always required a
delicate balance to be maintained between the advocates of the First Amendment freedom of speech and the more
conservative segment of American society. It is appare that the First Amendment right to enjoy freedom of
speech is strongly supported even where the right stra
into potentially destructive areas of obscenity,
pornography, race and hate speech. The test of obscenity in the United States is provided by Miller v California
which established the three part test. The Supreme Court held that to be obscene, the judge and/or the jury must
determine:
a)
that the average person, applying contemporary community standards, would find that the work, taken as
a whole appeals to the prurient interest; and
b) that the work depicts or describes in a patently offensive way, as measured by contemporary community
standards, sexual conduct specifically defined by the applicable law; and
c) that a reasonable person would find that the work, taken as a whole, lack serious literary, artistic, political
and scientific value.
The Supreme Court in subsequent cases such as Jenkins v Georgia and Pope v Illinois provided much
needed guidelines with the aim of providing State and
al Courts with the tools to delineate the boundary
between protected expression which portrayed sexual conduct and unprotected obscene expression (Murray,
2007).
In comparison to the position in the United Kingdom, the United States seems to provide a clearer stance as
to what might constitute obscenity. It should be noted however, that although it is not uncommon for obscenity to
be linked to materials of explicit sexual nature such as pornography, it can
argued that obscenity is not
restricted to sexual materials or matters affecting se
immorality. On the contrary, in more recent times it has
been accepted in John Calder (Publications) Ltd v Po well that the term has been extended to include materials that
advocates drug taking by highlighting the favourable effects of drugs and so providing “a real danger that those
into whose hands the book came might be tempted at any rate to experiment with drugs”; and acts of extreme
violence such as acts of mutilation and beheading are not only regarded as repulsive but can have a very disturbing
effect on viewers.
However, it is apparent that the underlying objective
the law against obscenity is the protection of
contemporary community standards. Thus as with the American test of obscenity, it can be said that the English
test of obscenity- “the tendency to deprave and corrupt”- is also aimed at some form of deviation from
contemporary community moral standards. Consequently, individuals who are in the position to deliberate on
what is legally obscene, are in an unenviable position to evaluate the strength of the conjunctive terms "deprave
and corrupt" using the filter of what they consider ordinary decent people's standards. These individuals also have
to be able to distinguish between what might only mildly lead someone morally astray, on the one hand, and what
is sufficiently serious to be depraving and corrupting on the other. This raises questions such as is there an agreed
community standard? Who decides on the standard and which body enforces such a standard? We intend to
examine this issue from Hong Kong’s perspective.
3.
Obscenity in Hong Kong
In Hong Kong, the publication and display of obscene articles in the printed and electronic media is governed by
the Control of Obscene and Indecent Articles Ordinance (Cap. 390) (the COIAO). The exhibition and publication
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of films dealt with specifically by the Film Censorship Ordinance (Cap. 392) whereas the Broadcasting
Ordinance (Cap. 562) deals with television broadcasts. In fact, the Ordinance regulates not only the publication
and public display of materials regarded as obscene but also of an indecent nature. An article includes any 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 whilst publication includes the distribution, circulation, sale, hire or loan of the
article to the public or a section of the public whether or not for purposes of gain (sections 2(1) and (4) COIAO).
The long title of the Ordinance sets the tone of the ordinance’s objectives, which is, to control articles which
consist of or contain material that is obscene or indecent (including material that is violent, depraved or repulsive).
The COIAO does not expressly provide a definition of obscenity other than to provide in section 2 subsections (2)
and (3) the following:
(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" (淫褻) and "indecency" (不雅) include violence,
depravity and repulsiveness.
It is evident that the English statutory definition is partially incorporated under the Hong Kong law.
Consequently under the Ordinance, an obscene material ncludes material which has the tendency to deprave and
corrupt the public or a section of the public. The materials may be repulsive, of a sexual nature such as engaging
in bestiality or materials which induces violence. As
materials that advocate the benefits of drug taking such
that it may tempt people to experiment may be regarded as obscene. The Obscene Article Tribunal (OAT)
comprising of adjudicators who form the members of the tribunal, has the sole jurisdiction in determining what
articles are indecent or obscene (sections 6(1) and (2)). The adjudicators are lay individuals appointed from all
walks of life. The intention behind their appointment was to provide a reflection of society’s moral fibre and thus,
a balanced and acceptable community standard. The intention, though a noble one has not resolved differences in
opinions of the adjudicators. Section 29(1) provides
materials to be classified into three categories by the
Tribunal. These classes are Class I – article that is neither obscene nor indecent, Class II – indecent article and
Class III – obscene article. An article is obscene if it is not suitable to be published to any person but is indecent if
considered not suitable for juveniles (under 18 years of age) (section 2(2)).
In considering whether an article is obscene or indecent, guidance is provided to the tribunal in the form of
factors laid down in section 10(1). These factors include the standards of morality, decency and propriety that are
generally accepted by the community, the dominant effect of the article as a whole and the persons, and the
of persons or age groups of persons to whom the article is likely to be published - sections 10(1)(a), (b) and (c).
Other factors to be considered by the tribunal include where the material is publicly displayed the location of the
display and the persons, classes of persons or the age groups of those likely to view it, and whether the article has
an honest purpose or whether it instead seeks to disguise the unacceptable material – section 10(1) (d) and (e). It
should be noted that although some researchers such as Nowlin (2003) suggests that the ‘community standard of
decency or tolerance’ is regarded as ‘outmoded myths’ esulting in inaccurate measurement’, the community
standard test remains the test used in Hong Kong. Enforcement of the COIAO is carried out by the Television and
Entertainment Licensing Authority (TELA), the Hong Kong Police Force and the Customs and Excise
Department.
4.
Classification by the tribunal
It is not mandatory under the COIAO for interested parties including authors, printers, copyright owners of
articles, publishers to seek classification of their materials. This is because section 13 provides that interested
parties ‘ … may, by application in the prescribed form, submit that article to the Registrar for classification by a
Tribunal’. Interested parties in this respect would also include public officers. In most cases, these would be
enforcement officers from TELA, the Police and the Customs and Excise Department. Upon an application for
classification by the tribunal (the classification tribunal), an interim classification will be made in respect of that
article. In so classifying the article as Class I, II or III, section 14(3) states that no reasons need be given although
the tribunal is to provide an opinion as to whether an article is obscene or indecent by reference to the particular
part of the article which is classified obscene or indecent. A party aggrieved by the classification tribunal’s
interim classification may if he so wish, and within five days, have the classification reviewed before a full hearing
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comprising of a magistrate and a panel of four or more panel adjudicators, any adjudicator of the earlier tribunal is
automatically disqualified from sitting in the full hearing (sections 15(1) and 15 (2)(b)). This is to alleviate any
concerns of conflict of interest or prejudice. As with the classification tribunal, the review tribunal shall identify
the part of the article that causes the obscenity or indecency. However, in comparison to the classification
tribunal, the review hearing is to be, except in certain circumstances and in the interests of public morality be
conducted in public (section 16(1)). Upon final determination by the review tribunal, any dissatisfied party to the
proceedings may appeal under section 30 to the Court of First Instance on a point of law. However, it should be
noted that by reason of the decision in Oriental Daily Publisher Ltd v Commissioner for Television and
Entertainment Licensing Authority, the appeal must be restricted to points of law that ha been dealt with or
adjudicated upon by the presiding magistrate. The dissatisfied party has in addition to an appeal may institute
judicial review proceedings against the tribunal’s decision. A recent example of this occurring is illustrated in the
case of Three Weekly Limited v Obscene Articles Tribunal and Commissioner for Television and Entertainment
Licensing Authority. Part IV of the Ordinance provides for criminal sanctions including offences for publishing
obscene articles and publishing indecent articles to juveniles without the statutory safeguards such as covers,
sealed opaque wrappers and warning notices. For example, section 21(1) criminalises the publication, possession
and importation for the purposes of publication of an
article or an article classified as Class III article, by
imposing a fine of HK$1 million and a term of imprisonment of three years. In this respect, it is immaterial
whether the offender knows it is an obscene article or that it has been classified as such by the tribunal thus
making it except for section 27A a strict liability offence (R v Cheng Pui Kit). If the tribunal finds an article
obscene, TELA will prosecute the offender. A general defence of ‘public good’ is provided under section 28.
Further, the offender may raise the defence of having
reasonable grounds for believing the article is obscene,
not having a reasonable opportunity to inspect the article or having reasonable grounds for believing that the
article is not obscene (sections 21(2)(d), 27A(2)(c)and 21(2)(e)).
5.
The tribunal’s functions
It can thus be said that the OAT in exercising its monopolistic authority in determining obscenity and indecency,
performs two very separate and distinct functions. Firstly, it
an administrative tribunal when the tribunal
performs its functions of classifying articles submitted to it by interested parties. It may be worth noting that not
all articles submitted to the tribunal will be classified as Class I, II or III. There are circumstances where the
tribunal may refuse to make a classification. This can happen if in the opinion of the tribunal, the article may be
child pornography or where the tribunal considers that the article cannot be adequately described for the purpose
of giving notice of classification (see sections 8(2)
8(2)(a)). Second, the tribunal has a court referral function
in that section 29(2) provides that a court or magistrate in any civil or criminal proceedings shall refer the question
on inter alia whether an article is obscene or indecent to the tribunal. When determination is required by the court
or magistrate, the burden and standard of proof of the respective referring court is adhered to. For example, if the
determination is required in a civil case, counsel will need to prove that the article is obscene or indecent with
reference to the standard applicable in civil proceedings, that is, on the balance of probabilities. In so performing
its court referral function, the tribunal exercises its jurisdiction under Part V of the Ordinance having the same
powers of a magistrate under the Magistrates Ordinance (Cap. 227) (See Sham Kow Ling v Obscene Articles
Tribunal). Thus the determinations of obscenity and indecency made by the tribunal in its court referral function
will be treated as findings of fact by the referring court.
6.
The controversy
Recently, the government has been urged to review the COIAO after public discontentment over what articles
should be considered “indecent” and “obscene”. The debate on the review on obscenity and indecency can be
said to have been initiated when local magazine Easy Finder, which had fourteen previous convictions of
publishing indecent articles sought a judicial review of OAT’s decision. The tribunal had classified ‘peep
pictures’ taken of local Twin pop star, Gillian Chung
in its magazine, as “indecent”. The call thus was
for the imposition of higher penalties and stricter restrictions for the publication of such articles. However, the
‘peep pictures’ were merely the beginning. A number of incidents have led to mounting pressure on the
government to have the Ordinance reviewed. These incidents are discussed under the sub-headings of the
student’s journal, posting adult images on an online forum and sex photos scandal below.
6.1 The student’s journal
Before the dust can settle on the Easy Finder case, complaints were received about a students’ journal which had
conducted a survey on students’ fantasies that included questions on bestiality and incest. The classification
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tribunal ruled as Class II (indecent), the sex column
by the Student Press of the Chinese University of
Hong Kong in their February and March 2007 issues (Wang, 2007). This effectively means that the journal can
only be distributed wrapped in plastic and with a warning that they must not be read by anyone under 18. First
time offenders convicted under section 24(1E)(b) face year’s imprisonment and a fine of HK$400,000. The
OAT’s review on the classification of a Chinese University of Hong Kong journal however has been adjourned
indefinitely following the decision of the student paper to apply for a judicial review (Chong, 2007). Amidst the
raging debate over the Student Press, complaints were
ved that parts of the Bible were offensive to readers as
they referred to violence, cannibalism and rape. The classification tribunal then classified as "indecent" a Sunday's
edition of the local Chinese-language newspaper Ming Pao after it published an article which adopted the same
format as that of the controversial sex survey in a Chinese University of Hong Kong students' journal. Ming Pao is
also seeking a judicial review in the High Court on classification tribunal’s interim indecent classification on the
feature the newspaper ran on Chinese University student journal’s controversial sex column (Lee, 2007).
6.2 Posting adult images in an online forum
Following closely the Student Press case, was the prosecution and conviction of a man for
a hyperlink to
an overseas pornographic web site (Wong and Tsui, 2007) The defendant Woo Taiwai was fined HK$5,000 for
publishing eight obscene photos at a chatroom adult images
area in a local internet forum. The Deputy
Magistrate, Jason Wan SiuMing in sentencing Woo held that the defendant was fined lightly because of his clean
record and guilty plea.
6.3 Sex photos scandal
In early February 2008, a number of individuals were arrested for allegedly publishing obscene materials on the
Internet. The obscene materials in question were sexually explicit photos taken by a local artiste, Edison Chen of
local singers, actresses and models. The pictures were posted on the Web after an estimated 1,300 photo files were
stolen from a computer Chen sent to a repair shop. The photographs featuring Chen with different women in
various sexual positions have spread through blogs, e-mails and chat rooms in Hong Kong and were available on
an internet auction website, www.taobao.com in China before it was shut down (Pang. D 2008). Separate arrests
were also made in China over the distribution of the sexually explicit photos (Xinhuanet, 2008). Following the
scandal, Next Magazine had published a special feature in its Issue 936 entitled ‘A full documentary of Edison
Chen’s obscene pictures tempest’ whilst Oriental Sunda had on its Issue 531 cover three nude pictures of female
artistes. With the furore over the sex photos scandal unabated, TELA the enforcement arm of COIAO submitted
copies of Next Magazine and the Oriental Sunday to the classification tribunal for determining whether the photos
of the celebrities posted were obscene or indecent. TELA has since appealed for a public hearing of the tribunal’s
review of the interim classification when the tribunal classified the publication of sexually explicit photos of Hong
Kong celebrities in Next Magazine and Oriental Sunday
Class I articles, that is, neither obscene nor indecent.
In a related but separate case, the tribunal classified as “obscene”, 84 of 93 photographs of Chen engaging in
sexual acts with female celebrities. Kwok Chunwai had allegedly uploaded the photographs on an internet server
in Cyprus that had posted hyperlinks to the files in Hong Kong forums, was charged with publishing the celebrity
nude photographs taken by Chen. Kwok had earlier demanded classification of the photographs in an attempt to
have his charges dropped following HKSAR v Chung Yik tin (See Lau, 2008). Chung Yik tin, the first individual
who was arrested and charged with distributing obscene photos relating to the Chen sex photos scandal had his
charge dropped after the tribunal classified the photographs as “indecent” instead of “obscene”.
The underlying question thus in the events mentioned is what constitutes obscenity and indecency in Hong
Kong. What materials are considered violent, have a tendency to deprave correct moral standards and are seen as
repulsive?
7.
The guiding factors
In Three Weekly case, the tribunal had to consider an article which included on the cover of its East Week
magazine and in the inside pages, a photograph of a well known actress taken twelve years ago. The photograph
showed the face of a woman and her naked breasts. Her eyes and nipples were blurred. The heading of the cover
was entitled ‘Revelation of the Truth, Nude Photo of Actress in Distress’ (Three Weekly Ltd v Commissioner for
Television and Entertainment Licensing Authority). The tribunal in considering the dominant effect of the article
opined that the photograph’s effect with its accompanying words “(…) shows in its effect a woman being
photographed against her will whilst in the state of undress and abuse”. The tribunal concluded that “The article
was obscene in that it was one of violence and criminal conduct, readers who read the article would feel ‘depraved
and repelled’” (Three Weekly). In making its determination the tribunal had further enunciated that invasion of
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privacy and injury to dignity and the commercial exploitation of the article per se, are not relevant factors for the
tribunal’s consideration. Nonetheless the tribunal when considering ‘standards of morality, decency and propriety’
must take into account the article’s particular characteristics and all circumstances including, but not limited to the
fact that the article may involve the invasion of privacy and injury to dignity of the person photographed and the
likelihood of commercial exploitation of the article (Three Weekly).
It is apparent from the Three Weekly case that whether the materials are “violent, depraved or repulsive” is
to be determined in the light of the dominant effect an article has on its readers (See section 10(1)). The section
provides that “(T)he task of the OAT is to look at the intrinsic nature of the article in question from the view of
view of the readers (or potential readers) so as to ascertain if the reader or potential reader would be repelled or
whether there would arouse any revulsion”. In addition to considering the dominant effect of the article, standards
of morality, decency and propriety’ are also given weight. Parents are especially concerned of the impact Chen’s
sex photographs will have on youngsters since Chen and most of the celebrities involved in the scandal are
regarded as top local tween (youngsters aged between 8 to 14 years ) and teen idols. With fan culture especially
strong in these groups of youngsters, there are concerns the scandal may send the wrong message that casual sex
and easy relationship is acceptable.
8.
Differences in opinion
Despite the fact that the adjudicators are drawn from
ent levels of social strata and age group intended to be
representative of Hong Kong society, there exist differences of opinions as to what might be considered obscene or
indecent. In fact, according to Nowlin (2003), evidence shows that there is very little consensus amongst experts
on what amounts to artistic representation and obscenity. Certainly, it is not uncommon for some adjudicators to
be more conservative than others. Perhaps, this is a
reflection of the society itself. In a public opinion survey
conducted in 2006 on the operation of the COIAO, the survey revealed that the moral standards of the respondents
to the survey differed according to their gender and education level. The survey was commissioned by TELA in
September 2006. One of the objectives of the survey w to gauge and analyze the prevailing standards of
morality, decency and propriety that are generally accepted y reasonable members of the community for the
purpose of classification under the COIAO. The survey
conducted by interview amongst 1501 respondents of
ages between 18 and 65 years old. Female respondents for example, have a tendency to apply stricter standards
than male respondents. In terms of the level of education, respondents with a degree or a higher level of education
were found to be more liberal and thus more lenient when sorting out articles as Class III (obscene). In other
words, there are fewer tendencies with people of higher education to feel depraved and repulsive.
Nonetheless, it can be said that the current practice
classifying an article as Class II “indecent” includes
‘an exhibition of female sex organs without any show of sexual activity’. Thus as far as Chen’s sex photos are
concerned, photos showing Chen and an actress kissing classified indecent, as with other photos showing other
celebrities showing their nipples and vagina, spreading their legs and kissing a dildo. As long as no sexual
activity is involved, the photos are classified indecent and no more. This formulae of ‘no sexual activity, no
obscenity’ thus explains why Kwok Chunwai’s photos of Chen and several celebrities were found to be obscene
and the Chinese University student’s journal was classified indecent. In Kwok’s case, the photographs Kwok were
charged with publishing, obscenely showed Chen and the celebrities engaging in oral sex whilst in the Chinese
University student’s journal case, the issue at hand were survey questions on bestiality and incest.
It is important to note that in considering a classification, the tribunal’s task is to consider the article
independently on its merits or demerits without comparing the article in question with other similar articles or past
articles. This was affirmed in Three Weekly case when reference was made to the English case of Galletly v Laird .
The Court of Appeal in that case held that the character of the book complained of is to be ascertained by
examining the book itself which provides the best evid e of its own indecency or obscenity or of the absence of
such qualities. The court in Three Weekly and Commissioner for Television and Entertainment Authority v
Oriental Daily Publisher Ltd and The Sun News Publisher Ltd further held that evidence designed to show that
other books in public circulation are not materially different in character from the book under complaint is not
admissible.
9.
Enforcement measures
The Ordinance is enforced by TELA, the Hong Kong Police Force and the Customs and Excise Department. The
Police mainly deal with the sale of obscene articles at the wholesale and retail outlets such as video and computer
shops, while the Customs and Excise Department deals with articles
the entry points and in the course of
copyright enforcement work. TELA on the other hand, monitors newspapers, magazines and comic books
published in the market and inspect retail outlets (including bookshops, newspaper stalls, video shops and
computer shops) to check if any articles published are in breach of the Ordinance. TELA and the tribunal usually
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act on complaints made by members of the public. In its mission statement, TELA pledges to “follow closely
standards for taste and decency accepted by the community and reflects them in their decision” (TELA’s Vision
and Mission Statement). If the material submitted to
tribunal by TELA is found to be obscene, TELA will
prosecute the publisher in the courts. The courts will impose a penalty if the publisher is found guilty. Whilst the
Ordinance provides for fines up to HK$1 million and a
of imprisonment of three years depending on whether
the article published is classified as “obscene” or “indecent” (see sections 21, 22, 24(1E) and 26), the majority of
penalties imposed between January and February 2008 have been the imposition of fines ranging from HK$8,000
to HK$ 20,000 (Statistics on the Enforcement and Promotion of COIAO 2008). In view of the fact that the
sentences imposed have failed to have a deterrent effe we applaud TELA’s attempt to seek a review of the
penalties imposed on publishers of magazines for repeated breach of the ordinance. However, we also no te
TELA’s indiscriminate enthusiasm for referring materials for the tribunal’s determination. Although we accept
that matters are referred to the tribunal based on complaints from the public, we are of the opinion that TELA
should be more selective in their referrals and the tribunal should be less conservative in their classification. In
1995, TELA referred a picture of the completely naked
of David to OAT which had proceeded to rule the
picture as obscene. The obscenity ruling was subsequently overturned by the High Court. More recently, a local
blogger was charged with obscenity for linking to a Flickr photograph of an art nude on a citizen journalism site,
InMediaHongKong. The photo is of a woman with her breasts exposed is an image by photographer Jake
Applebaum and was obtained from Flickr (Kwok, 2007).
10.
Conclusion
Thus, what we see is a divergence of opinions in what constitutes “obscenity” and “indecency”. Nothing is further
from the truth in the idiom “one man’s meat is another man’s poison”; so what is art or liberal to some may still be
viewed as obscene to others. That a modern and cosmopolitan city like Hong Kong could have such a divergence
of opinions over what is "acceptable” or “art form" an
hat is "pornography" or “obscenity” is due to the fact that
the city is a place where Eastern and Western cultures meet. Liberal and conservative ideas about sex co -exist in
the same society. The fact that the classification of articles is based on the “standards of morality of the
community” adds to the controversy. The issue of morality is inherently subjective and controversial. It is
generally not easy to reach a consensus on the standar of morality in society, and this is all the more so in Hong
Kong. Perhaps a change to the final hearings of the tribunal along the lines proposed in the government’s
consultation paper in 2000 should be re-visited. A system along the lines of a jury system wh
individuals can
be drawn from the entire population of eligible citizens, thereby greatly increasing representation from the general
public might prove useful. Although, the proposed system will not resolve all issues relating to obscenity, it is
hoped that an adjudication process which involves repr
from a broader spectrum of society, might better
reflect contemporary community acceptance level on indecency and obscenity (Consultation paper on Protection
of Youth from Indecent and Obscene Materials,2000 ).
References
Cases
1.
2.
3.
4.
5.
6.
7.
8.
9.
R v Anderson & Others [1972] 1 QB 304, 56 Cr Ap p 115, CA
R v Hicklin 1868 LR 3 QB 360
R v Penguin Books Ltd [1961] Crim L.R 176
Miller v California 1973 413 US 15
Jenkins v Georgia 1974 418 US 153
Pope v Illinois 1987 481 US 497
John Calder (Publications) Ltd v Powell [1965] 1 QB 5 9
Galletly v Laird [1953] SC (J) 16
Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority [1998]
1HKCFAR 279
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13. HKSAR v Woo Tai wai
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15. HKSAR v Kwok Chun wai
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Publisher Ltd, OATD 30 & 31, 2006
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http://www.bbc.co.uk/dna/h2g2/A679016
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Enviroment’,2007, Routledge Cavendish, Taylor Francis Group
19. ‘The Ineluctable Decline of Obscene Libel: Exculpation and Abolition’, Crim. L.R, Sept 2007, pp. 667-676
20. Nowlin.C., ‘Judging Obscenity: A Critical History of Expert Evidence’, 2003, McGill University Press.
21. Wang. M., ‘Obscene Articles Tribunal rules 'Student Press' sex column indecent’, Asia Media, May 16 2007
22. Chong. W., ‘Student journal to launch challenge’, The
dard, July 7 2007
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http://www.mg.co.za/articlepage.aspx?area=/breaking_news/other_news/&articleid=308608
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27. Two arrested for spreading celebrity sex photos in East China, March 2 2008; available at
http://news.xinhuanet.com/english/2008-03/02/content_7702745.htm
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Indecent Materials in the Mass Media, CB(1)2102/03-04(03); available at http://www. legco.gov.hk/yr03 04/English/panels/itb/papers/itb0614cb1-2102 -3e.pdf
31. The Television Entertainment and Licensing Authority’s Vision, Mission and Values is available at
http://www.tela.gov.hk/english/about.htm
32. W.H.Kwok.., “HONG KONG: Blogger faces charges for posting, linking to 'indecent' image”, Jul 19 2007,
available at http://www.asiamedia.ucla.edu/article.asp?parentid=74217
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www.cedb.gov.hk/ctb/eng/paper/doc/citizens.doc
161