Prevention of Child Pornography Bill
Provide for the prohibition of the production, possession and proliferation of child pornography and for connected purposes.
Enacted by the Legislative Council.
1. Short title and commencement
(1) This Ordinance may be cited as the Prevention of Child Pornography Ordinance.
(2) This Ordinance shall come into operation on a day to be appointed by the Secretary for Security by notice in the Gazette.
2. Interpretation
(1) In this Ordinance, unless the context otherwise requires---
"authorized officer" (獲授權人員) means any person authorized by a warrant issued under section 5;
"child pornography" (兒童色情物品) means---
(a) a film, photograph, publication or computer-generated image or picture that indecently depicts a person who is, or looks like, a person under the age of 16 and includes data stored on a computer disc or by other electronic means which is capable of conversion into such a film, photograph, publication, image or picture; or
(b) any object that indecently depicts a person who is, or looks like, a person under the age of 16;
"film" (影片) means---
(a) a cinematograph film and includes any sound-track associated with such film;
(b) a videotape or laserdisc and includes any sound-track associated with such videotape or laserdisc;
(c) a still film and includes any sound-track associated with such film;
(d) any other record of visual moving images that is capable of being used for the subsequent screening of those images and includes any sound-track associated with such record;
(e) any combination of the films referred to in paragraphs (a), (b), (c) and (d); or
(f) an excerpt or a part of a film referred to in paragraph (a), (b), (c), (d) or (e);
"photograph" (照片) includes the negative as well as the positive version of a photograph;
"publication" (刊物) includes books, periodicals, magazines, posters, placards and billboards;
"still film" (定畫影片) means a slide, or a series of slides, including single frames of a film, of visual non-moving images that is or are capable of being used for the subsequent screening of those images.
(2) In this Ordinance references to indecently depicting a person shall be construed as references to depicting a person engaging in sexual activity or depicting a person in an indecent sexual manner or context.
3. Offences relating to child pornography
(1) Any person who prints, makes, produces, reproduces, copies, publishes or imports any child pornography commits an offence and is liable---
(a) on conviction upon indictment to a fine of $2,000,000 and to imprisonment for 8 years; or
(b) on summary conviction to a fine of $1,000,000 and to imprisonment for 3 years.
(2) Any person who---
(a) gives or lends any child pornography, whether or not for any form of reward; or
(b) distributes or shows any child pornography,
commits an offence and is liable---
(i) on conviction upon indictment to a fine of $2,000,000 and to imprisonment for 8 years; or
(ii) on summary conviction to a fine of $1,000,000 and to imprisonment for 3 years.
(3) Any person who has in his possession any child pornography (unless he is the only person indecently depicted in the child pornography) commits an offence and is liable---
(a) on conviction upon indictment to a fine of $1,000,000 and to imprisonment for 5 years; or
(b) on summary conviction to a fine of $500,000 and to imprisonment for 2 years.
(4) Any person who publishes or causes to be published any advertisement likely to be understood as conveying that any person distributes or shows any child pornography or intends to do so commits an offence and is liable---
(a) on conviction upon indictment to a fine of $2,000,000 and to imprisonment for 8 years; or
(b) on summary conviction to a fine of $1,000,000 and to imprisonment for 3 years.
(5) Any person who employs a person under the age of 16 for the purposes of making child pornography indecently depicting the second-mentioned person or procures the second-mentioned person to be indecently depicted commits an offence and is liable on conviction upon indictment to a fine of $3,000,000 and to imprisonment for 10 years.
4. Defence
(1) Where a person is charged with an offence under section 3(1), (2), (3) or (4), there shall be a defence for him if it is established by evidence that---
(a) he had a legitimate cause for doing the act mentioned in section 3(1), (2) or (4) or having the child pornography in his possession (as the case may be); or
(b) he had not himself seen the child pornography and did not know, nor did he have any cause to suspect, it to be child pornography.
(2) Without prejudice to subsection (1), where a person is charged with an offence under section 3(3), there shall be a defence for him if it is established by evidence that he had not asked for any child pornography and after it came into his possession he endeavoured to destroy it within a reasonable time.
(3) It is not a defence to a charge under section 3 that the defendant believed that a person depicted in a depiction that is alleged to constitute the child pornography was or was depicted as being 16 years of age or more unless---
(a) the person indecently depicted was 16 years of age or more;
(b) the defendant took all reasonable steps to ascertain the age of that person; and
(c) where the person was 16 years of age or more, the defendant took all reasonable steps to ensure that he was not depicted as being under the age of 16.
5. Search and seizure under warrant
(1) A magistrate may, if he is satisfied by information on oath by a police officer or member of the Customs and Excise Service that there is reasonable ground for suspecting that there is in or on any premises, place, vessel, aircraft or vehicle---
(a) any thing in respect of which an offence under section 3 has been or is being or is about to be committed; or
(b) any thing which is, or contains, evidence of the commission of any such offence,
issue a warrant authorizing any person being a police officer or member of the Customs and Excise Service to enter such premises, place, vessel, aircraft or vehicle, and search for, seize, remove and detain any such thing.
(2) An authorized officer may---
(a) if he is a police officer, call on any member of the Customs and Excise Service; or
(b) if he is a member of the Customs and Excise Service, call on any police officer,
to assist him in the exercise of the powers conferred by this section.
(3) An authorized officer or an assisting officer may, at any time of the day or night---
(a) enter and search any premises or place named in the warrant; or
(b) stop, board and search any vessel, aircraft or vehicle named in the warrant.
(4) An authorized officer or an assisting officer may seize, remove and detain---
(a) any thing in respect of which he reasonably suspects that an offence under section 3 has been or is being or is about to be committed; and
(b) any thing which he reasonably suspects to be, or to contain, evidence of the commission of such an offence.
(5) In this section---
"aircraft" (飛機) does not include a military aircraft;
"vessel" (船隻) does not include a ship of war or a ship having the status of a ship of war.
6. Ancillary powers of officers under warrant
An authorized officer or an assisting officer may in relation to his powers under a warrant---
(a) use such force as is reasonably necessary to enter any premises or place which he is empowered to enter and search;
(b) use such force as is reasonably necessary to stop, board, or search any vessel, aircraft or vehicle which he is empowered to stop, board and search;
(c) use such force as is reasonably necessary to remove any person or thing obstructing him in the exercise of those powers;
(d) detain any person found in or on any premises, place, vessel, aircraft or vehicle which he is empowered to enter and search until it has been searched; and
(e) prevent any person from approaching, boarding or leaving any vessel, aircraft or vehicle which he is empowered to enter and search until it has been searched.
7. Seizure by police officer or member of
the Customs and Excise Service
In addition to any power he may have under section 5, any police officer or member of the Customs and Excise Service may seize, remove and detain---
(a) any thing in a public place, in respect of which he reasonably suspects that an offence under section 3 has been committed or is being committed; and
(b) any thing in a public place, which he reasonably suspects to be, or to contain, evidence of the commission of such an offence.
8. Obstruction
(1) Any person who---
(a) obstructs an authorized officer or an assisting officer in the exercise of any power conferred by this Ordinance; or
(b) fails to comply with any reasonable requirement, direction or demand given or made by an authorized officer or an assisting officer in the execution of the warrant,
commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 6 months.
(2) Any person who obstructs any police officer or member of the Customs and Excise Service in exercising a power conferred by section 7 commits an offence and is liable on conviction to a fine at level 3 and to imprisonment for 6 months.
9. Liability to forfeiture
(1) Any child pornography that has come into the possession of the police or the Customs and Excise Service shall be liable to forfeiture.
(2) Any---
(a) machinery or apparatus used for projecting or showing any child pornography; or
(b) machinery, plate, implement, utensil, photographic film or material used for the purpose of an offence under section 3(1),
shall be liable to forfeiture.
(3) Any thing seized, removed or detained under section 5 or 7 shall be liable to forfeiture.
(4) Subsection (2) does not apply to anything that is used by a public officer in the due execution of his duties.
10. Order and direction for forfeiture
(1) Subject to subsection (2) and section 11, where an application is made to a magistrate for an order for forfeiture, he may, in the case of any thing that is before him and is liable to forfeiture under section 9, order it to be forfeited.
(2) An order for forfeiture shall not be made under subsection (1) if any ground of defence under section 4 is proved.
(3) An order for forfeiture of any thing may be made under subsection (1) notwithstanding that no person is convicted of any offence in connection with that thing.
(4) Any thing which is ordered to be forfeited under subsection (1) shall be disposed of in such manner as the magistrate directs.
11. Procedure in relation to forfeiture
(1) Subject to subsections (3) and (4), before making an order for forfeiture of any material or thing under section 10, the magistrate shall issue a summons to---
(a) the occupier of any premises or any place or, in the case of a stall, the owner or the occupier of the stall, in or from which the material or thing was seized;
(b) the owner of the material or thing seized,
to appear on a day specified in the summons to show cause why the material or thing should not be forfeited.
(2) In addition to any person mentioned in subsection (1), any other person being the producer or manufacturer of any material or thing seized or a person into whose hands any such material or thing may have passed before seizure, or a person who has an interest in any material or thing seized, may appear before the magistrate on the day specified in the summons to show cause why the material or thing should not be forfeited.
(3) If the magistrate is satisfied that any person specified in subsection (1) cannot for any reason be found or ascertained, he may dispense with the issue of a summons to that person.
(4) If any summons issued under subsection (1) has not for any reason been served and the magistrate is satisfied that all reasonable efforts were made to serve the summons on the person named in the summons he may make an order for forfeiture under section 10 notwithstanding that the summons was not served and that the person named in the summons has not been given an opportunity to show cause why the material or thing should not be forfeited.
(5) An order for forfeiture of any material or thing shall, unless the magistrate considers that there are special reasons for directing otherwise, apply to the whole of the material or thing.
12. Obliteration of child pornography
(1) If, upon the application of any public officer, a magistrate is satisfied that any child pornography is publicly displayed on any building or other structure, he may order the owner of the building or structure to remove or efface that child pornography.
(2) If a person against whom an order is made under subsection (1) fails to comply with the order within the time specified in the order, or if no time is specified, within a reasonable time, the magistrate may by warrant empower any police officer, with such assistance as may be necessary, to enter and if necessary to break into or forcibly enter such premises or place and execute that order.
(3) A police officer in executing an order under subsection (1) shall have all the powers of a police officer acting in the execution of a warrant under section 5, including the powers mentioned in section 6.
(4) The Commissioner of Police may apply to a magistrate for an order that a person who has failed to comply with an order made against him under subsection (1) shall pay any expenses reasonably incurred by a police officer in the execution of the order under this section and the magistrate may make an order for such payment.
13. Procedure in relation to obliteration
(1) Before making an order to remove or efface any child pornography under section 12 the magistrate shall, unless he is satisfied that the owner of the building or other structure mentioned in that section cannot for any reason be found or ascertained, issue a summons to him to appear on a day specified in the summons to show cause why an order should not be made to remove or efface that child pornography.
(2) In addition to the person mentioned in subsection (1) any other person being the owner, producer or manufacturer of the child pornography mentioned in section 12 may appear before the magistrate on the day specified in the summons to show cause why the order to remove or efface that child pornography should not be made.
(3) Subsections (4) and (5) of section 11 shall apply in relation to an order to remove or efface child pornography under section 12 as they apply in relation to an order for forfeiture under section 10.
Consequential Amendments
Customs and Excise Service Ordinance
14. Ordinances referred to in
sections 17 and 17A
Schedule 2 to the Customs and Excise Service Ordinance (Cap. 342) is amended by adding "Prevention of Child Pornography Ordinance ( of 1999)".
Explanatory Memorandum
The object of this Bill is to prohibit child pornography.
2. Clause 3 creates offences relating to child pornography. It will be an offence to make, pass on or distribute child pornography. Possession of child pornography and publication of an advertisement suggesting the availability of child pornography will also be prohibited. Employment of a child to make pornography will be liable to a fine of $3,000,000 and to imprisonment for 10 years.
3. Clause 4 provides defences for certain offences under clause 3.
4. Clauses 5, 6 and 7 provide for search and seizure of child pornography.
5. Clause 8 makes it an offence to obstruct a police officer or customs officer in certain circumstances.
6. Clauses 9, 10 and 11 make provision for the forfeiture of child pornography and things seized under the Bill.
7. Clauses 12 and 13 provide for the obliteration of child pornography.
8. Clause 14 is a consequential amendment which amends the Customs and Excise Service Ordinance (Cap. 342) to empower a customs officer who is off duty to enforce the Bill and to empower customs officers to have general power of arrest and search for the purpose of the Bill.
