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LCQ4: Operation of the Control of Obscene and Indecent Articles Ordinance

Following is a question by the Hon Lau Kong-wah and a reply by the Secretary for Commerce and Economic Development, Mr Frederick Ma, in the Legislative Council today (October 17):

Question:

In April this year, Wen Wei Po, Ta Kung Pao and Sing Pao Daily News were given an interim classification as indecent articles by the Obscene Articles Tribunal (OAT) for publishing the same nude photo of a female soldier. The Television and Entertainment Licensing Authority (TELA) subsequently instituted prosecution against the three newspapers for the relevant offence. The first two newspapers pleaded guilty and were fined, whereas Sing Pao Daily News denied the charges. Following a review, the photo was re-classified as a Class I article by OAT, and the charges against Sing Pao Daily News were therefore dismissed. In addition, Oriental Daily News, The Sun and Apple Daily published in 2005 an identical set of nude photographs of an overseas female celebrity, but only the former two newspapers were prosecuted. In this connection, will the Government inform this Council:

(a) of the criteria adopted by TELA for determining whether an article should be submitted to OAT for classification;

(b) whether it knows the reasons for OAT's different classifications, made before and afterwards, of the same photo; and

(c) whether it knows if the same standards are used by OAT for classifying the publications of various media organisations, and if OAT adopts more stringent assessment criteria for media organisations which are found repeatedly in breach of the legislation concerned?

Reply:

Madam President,

Before addressing the questions raised by the Honourable Mr Lau, I would first like to clarify some of the details of the two cases mentioned in the question.

Regarding the photo of a nude military policewoman as referred to by the Honourable Mr Lau, three newspapers published the same photo at that time. With the same handling procedures, the Television and Entertainment Licensing Authority (TELA) submitted all concerning articles of the three newspapers to the Obscene Articles Tribunal (OAT), which is a judicial body, for classification. The photos published by the three newspapers were all classified as Class II (indecent) articles by the OAT. Based on the classification, TELA instituted prosecution against the three newspapers concurrently. Two of the newspapers pleaded guilty, whereas one of the newspapers pleaded not guilty. The court referred the case to the OAT to for determination. At the determination, the OAT re-classified the photo published by that newspaper as Class I (neither obscene nor indecent), therefore the prosecution was dropped.

As for another case concerning the photos of a nude overseas female celebrity, the photos and texts published in two newspapers were different from those published in the other newspaper with regard to the size of photos, shooting angle and the extent of the texts. Likewise, TELA submitted the articles published by the three newspapers to the OAT for classification. Among the newspaper articles, two of them were classified as Class II (indecent) articles by the OAT and TELA instituted prosecution accordingly. The other newspaper article was classified as a Class I (neither obscene nor indecent) article by the OAT, and thus no prosecution was instituted by TELA.

My reply to the Honourable Mr Lau's questions in seriatim is as follows:

(a) Inspection and monitoring work by TELA has always been conducted in accordance with the guidelines for the OAT in classifying articles as required by the Control of Obscene and Indecent Articles Ordinance (COIAO) as well as the past cases of classification by the OAT. The COIAO requires that, in classifying an article, the OAT shall have regard to the following factors:

(i) standards of morality, decency and propriety that are generally accepted by reasonable members of the community;

(ii) the effect of an article as a whole;

(iii) the persons or class of persons, or age groups of persons to or amongst whom the article is intended to be published;

(iv) whether the article has an honest purpose or is designed to camouflage unacceptable contents.

Based on the above guidelines and by drawing references to the past cases of the OAT, TELA submits all articles suspected of breaching the COIAO to the OAT for classification.

(b) According to the Judiciary, the Court of Appeal of the High Court has decided in an earlier case that:

(i) when the OAT deals with the classification of an article according to Part III of the COIAO, the OAT is exercising an administrative function;

(ii) when the OAT exercises its functions under Part V of the COIAO upon request from other courts, the OAT is exercising a judicial function and the OAT's determination will form part of the decisions of the court requesting such determination.

The established practice of the OAT is that it should consist of different presiding magistrates and adjudicators when exercising its administrative function at (i) above and when exercising its judicial function at (ii) above. Also, when exercising the function at (ii) above, the OAT is not bound by the classification made in (i) above. As such, the determination made in (ii) above could be different from the classification made in (i) above.

(c) The OAT classifies the publications of different organisations by taking into consideration the factors stipulated by the COIAO. Under the COIAO, there is no difference in the factors that must be considered by the OAT in classifying the article of a first offender or a repeated offender. However, the COIAO stipulates a higher maximum penalty for subsequent conviction. The court may impose an appropriate level of penalty on the offender based on the circumstances of individual cases. Any person who publishes an indecent article without complying the law is liable to a maximum fine of $400,000 and to imprisonment for 12 months on his first conviction, and to a fine of $800,000 and to imprisonment for 12 months on subsequent conviction. Publishing an obscene article is liable to a maximum fine of $1 million and imprisonment of three years.

Madam President, I appreciate that members of the public may not fully understand the provisions of the COIAO and its operation, in particular the division of work between TELA and the OAT as well as their respective powers and responsibilities. One of the functions of TELA is to submit to the OAT articles suspected to be in contravention of the COIAO and to initiate prosecution in accordance with the classification of the articles made by the OAT. The OAT is solely responsible for classifying articles and no such powers are vested with TELA. We will step up promotional efforts to enhance public understanding of the operation of the COIAO. Besides, I understand that some people in the community may have doubts on the classification and determination regime adopted by the OAT. I am now considering a review of the provisions in the COIAO and the current mechanism and will then consider making necessary improvements as appropriate.

Wednesday, October 17, 2007