In Hong Kong, the publication of obscene or indecent articles is governed by the Control of Obscene and Indecent Articles Ordinance (Ordinance). Articles are submitted to the Obscene Articles Tribunal (Tribunal) for classification on whether they are obscene, indecent or neither.
Upon classification by the Tribunal that the article is obscene or indecent and if there is no review of the decision, a summons will be issued to the person responsible for the article, informing them of the contravention of the relevant sections of the Ordinance. These are criminal proceedings and are heard in a Magistrates’ Court.
Challenges to classifications are made by request to the Tribunal, which must then determine whether the article is obscene, indecent or neither. The following summarises a prosecution for obscene or indecent articles.
Control of Obscene and Indecent Articles Ordinance
The Ordinance prescribes the procedures for the handling of obscene or indecent articles, offences in relation to the publication of such and methods of enforcement, including search, seizure and obliteration.
An article is broadly defined under the Ordinance as “any thing consisting of or containing material to be read or looked at or both read and looked at.” Films are not covered and are instead governed under the Film Censorship Ordinance.
Under the Ordinance, the author, printer, manufacturer, publisher, importer, distributor or owner of the copyright of any article or any person who commissions the design, production or publication of any article, the Secretary of Justice and any authorized public officer, such as an officer from the Office for Film, Newspaper and Article Administration (OFNAA) may submit an article to the Tribunal for classification. Generally speaking, it is the OFNAA who submits articles to the Tribunal for classification, either of its own accord or having received complaints about them.
The Tribunal can classify or determine an article as follows:-
(a) Class I – neither obscene nor indecent and can be published without restriction;
(b) Class II – indecent and must not be published to persons below 18 years of age and publication must comply with requirements such as sealing the article in an opaque wrapper, displaying a warning notice on the front and back covers and displaying the name and contact details of the publisher on the opaque wrapper; or
(c) Class III – obscene and prohibited from publication.
Obscenity or indecency
What is obscene or indecent? In assessing whether an article is obscene or indecent, the Ordinance provides that the following should be considered:-
(1) Obscenity or indecency includes violence, depravity and repulsiveness but an article does not need to contain violence, depravity or repulsiveness in order for it to be obscene or indecent.
(2) Guidance factors such as the standards of morality, decency and propriety that are generally accepted by reasonable members of the community; the dominant effect of the article as a whole; the persons to whom the article is or is intended or is likely to be published; and whether the article has an honest purpose or whether its content is merely camouflage designed to render acceptable any part of it.
Thus the Ordinance does not provide certainty as to the definition of obscene or indecent. Instead the approach is to consider the context and circumstances, to form a view on whether the article is obscene or indecent.
Obscene Articles Tribunal
The Tribunal is responsible for two main tasks in relation to the question of obscenity and indecency, namely the classification of articles and the determination of them.
If a matter is submitted to the Tribunal for classification, an interim classification is made on whether the article is obscene or indecent. The Tribunal is not required to give any reason for the interim classification, but must identify the part of the article which is obscene or indecent. If no application is made to review the classification, the interim classification becomes the Tribunal’s classification. Upon being classified as an indecent (Class II) or obscene (Class III) article, a summons will be issued against the person responsible for it, informing them of the relevant sections of the Ordinance which have been contravened.
The summons is heard before a Magistrate and the Defendant may either plead guilty or not guilty. If the Defendant pleads not guilty, he may ask the Magistrate to refer the matter to the Tribunal, to ask the Tribunal to make a new decision on whether the article is obscene or indecent. This is called a “determination hearing”, the decision of which overrides and replaces the classification.
Subject to any appeal on a point of law or judicial review, the determination is the final say on whether the article is obscene or indecent or neither. It should be noted that a question of obscenity or indecency is more often than not a question of fact and difficult to appeal. The Tribunal’s determination is therefore critical.
If the determination is that the article is obscene or indecent and it is not appealed, the matter is remitted back to the Magistrates’ Court and the Defendant should assess whether he has any defence and plead either guilty or not guilty. Pleading guilty at this stage may still attract a 1/3 discount of any sentence that the Magistrate may impose.
If the Defendant pleads not guilty then he would have to consider whether he has any defence such as the defence of public good or that the article was classified as Class I at the time the offence was alleged to have been committed. The case would proceed to trial and if the Defendant is found guilty after trial there would not be any 1/3 discount of any sentence. The Defendant should also bear in mind the potential serious penalties for offences under the Ordinance, for example, up to HK$1 million and 3 years, imprisonment for publishing an obscene article.