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LCQ14: Alleged contraventions of Control of Obscene and Indecent Articles Ordinance and Undesirable Medical Advertisements Ordinance

Following is a question by the Hon Li Kwok-ying and a written reply by the Secretary for Commerce, Industry and Technology, Mr Joseph WP Wong, in the Legislative Council today (March 7):

Question:

Will the Government inform this Council:

(a) of the respective numbers, in each of the past five years, of prosecutions instituted against, convictions handed down against, acquittals won by and appeals against conviction lodged by each of the local newspapers and magazines over alleged contraventions of the Control of Obscene and Indecent Articles Ordinance (Cap. 390) and the Undesirable Medical Advertisements Ordinance (Cap. 231) respectively;

(b) of the grounds usually cited by the court for acquitting the newspapers and magazines concerned in the aforesaid cases; and

(c) how the authorities ensure that press freedom will not be undermined when deciding whether prosecution should be instituted?

Reply:

Madam President,

I reply to parts (a), (b) and (c) of the question respectively as follows:

Part (a):

Control of Obscene and Indecent Articles Ordinance

The Control of Obscene and Indecent Articles Ordinance (COIAO) (Cap. 390) is enforced by the Television and Entertainment Licensing Authority (TELA), the Hong Kong Police Force (the Police) and the Customs and Excise Department (C&ED).

Among them, TELA is mainly responsible for monitoring publications (including newspapers and magazines) and inspecting retail outlets such as bookshops and newspaper stalls. TELA submits published articles suspected of breaching the COIAO to the Obscene Articles Tribunals (the Tribunals) for classification and prosecutes persons publishing indecent and obscene articles in breach of the COIAO.

In the past five years, pursuant to the COIAO, TELA has made a total of 217 prosecutions against local newspapers and magazines, resulting in 192 convictions. The prosecution and trial of the remaining 25 cases are underway. Details are tabulated at Annex I.

As for the other two departments, namely the Police and C&ED, their enforcement activities normally do not involve local newspapers and magazines. They thus do not have the information about the prosecutions against local newspapers and magazines. The Police mainly deal with the sale activities at wholesale and retail outlets such as video and computer shops, while C&ED seizes suspicious articles at border checkpoints and inspects articles in the course of copyrights enforcement work, etc.

Undesirable Medical Advertisements Ordinance

The Undesirable Medical Advertisements Ordinance (UMAO) (Cap. 231) is enforced by the Department of Health and the Police. The information about prosecutions made under the UMAO against local newspapers and magazines is tabulated at Annex II.

Part (b):

Out of the above 246 prosecutions, there are 25 ongoing cases; 219 convictions; one acquittal due to dismissal of the case by the presiding magistrate on technical grounds; and another case being listed for review.

Part (c):

Hong Kong people enjoy freedom of speech, of the press and of publication, which is guaranteed by the Basic Law. The Government is committed to upholding such freedom.

Under the COIAO, the Tribunals responsible for classifying submitted articles are part of the Judiciary and not the Executive Authorities. In the above prosecutions against newspapers and magazines in breach of the COIAO, TELA instituted all these prosecutions only after the Tribunals classified the articles. In addition, section 28 of the COIAO stipulates that it shall be a defence to a charge for the public good on the ground that such publication or display is in the interests of science, literature, art or learning, or any other object of general concern. The mechanism above has struck a balance between protecting public morals and minors and upholding freedom of speech, of the press and of publication.

As regards the enforcement of the UMAO, the Department of Health monitors newspapers and publications on the market regularly and, where necessary, refers any advertisements suspected of breaching the UMAO to the Police for investigation and follow-up, including seeking legal advice from the Department of Justice and instituting prosecutions. In this enforcement process, the relevant Departments act in accordance with the law, which has nothing to do with press freedom.

Wednesday, March 7, 2007

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