Obscenity Law in Hong Kong

Retired judges and legal professionals are to be recruited for the Obscene Articles Tribunal panel as authorities seek to inflict higher fines and jail terms on victims of state prosecution.

The second round of a three-month public consultation has been launched to review the Control of Obscene and Indecent Articles Ordinance.

Secretary for Commerce and Economic Development Gregory So Kam-leung said one of the proposals includes doubling the fine for obscene article violations to HK$2 million but keeping the maximum jail term unchanged at three years.

Those guilty of indecent article violations may also face stiffer fines of HK$800,000, up from HK$400,000, while a one-year term may await first offenders.

The maximum fine for subsequent convictions will be increased to HK$1.6 million, up from HK$800,000, and the jail term will be raised to two years.

To try and ease justified public fears that freedom of expression may be undermined, retired judges, or those with legal or professional backgrounds, along with adjudicators from different social backgrounds, would be appointed to the statutory classification board.

He said the Judiciary had earlier noted that the set-up of the current tribunal was unsatisfactory as it performed both an administrative function, in classifying articles, and a judicial function, in determining whether an article is obscene or not, in court.

To address the issue, a first option is proposed whereby the administrative and judicial functions performed by the tribunal will be segregated. A statutory classification and appeals board will be established to handle the administrative work of classifying articles while the tribunal itself will focus on its judicial function.

The government also proposed a second option - abolishing the tribunal's administrative function while it continues its judicial role.

The Hong Kong government is having its second round of consultation in the review of the Control of Obscene and Indecent Articles Ordinance and the deadline for opinion submission is July 15, 2012.

In a press conference representatives from 15 local NGOs pointed out that because of the vague definition of indecency (cannot be viewed by under 18) and obscenity (cannot be distributed) in the existing ordinance, the judgement of the committee members in the Obscene and Indecent Article Tribunal (OAT) has been highly inconsistent and subjective.

The current consultation is about splitting censorship off from the judiciary. Currently the same body acts both as censor and judge, so that any transgression of censorship rules leads to uncontestable prosecution.

Representatives from more than 15 organizations urged the government to loosen up the control of obscene and indecent articles in a press conference on 12 of July, 2012.

Joseph Cho from NutongXueshe (a LGBT group) pointed out the highly prejudicious judgement had put social and sexual minorities in a very vulnerable position. Cho said:

For example when the heterosexual committee members of OAT see two men kissing, they may find that disgusting and classify them as 'indecent', while the same article showing man and woman kissing can be viewed by all ages, .

He urged the government to loosen up the moral line for the sake of building a diverse, tolerate and open society in which people with different cultures can live together in peace.

Lam Oiwan, a writer at inmediahk.net whose article had been categorized at indecent back in 2007, pointed out that in order to prevent being prosecuted, both mainstream and online media have imposed very harsh self-censorship measures in the past few years. Lam explained:

Even though according to the ordinance there is exemption for articles that have artistic and scientific purpose, it is very difficult to implement as the judgement of OAT committee members is based on a single article (article-in-itself) without any additional and background information provided.

As a result, image such as Weiwei's artistic nude protest could easily be categorized as indecent if the committee members are ignorant of the artist and the political meaning of this artwork.

And as a final irony, the campaign poster by NuTongXueShe urging netizens to submit their opinions before the deadline was banned by Facebook citing the naked butt. Such images are usually categorize as Class I material in Hong Kong and can be viewed by all ages: