Legislative Council

LC Paper No. LS221/98-99

Object of the Bill

To prohibit child pornography.

LegCo Brief Reference

2. SBCR 21/3231/71 Pt.9 issued by the Security Bureau on 23 June 1999.

Date of First Reading

3. 30 June 1999.

Comments

4. Clause 3 of the Bill would create the following offences in relation to child pornography -

Clause	Offences	Summary Conviction	Conviction on Indictment
3(1)	prints, makes, produces, reproduces, copies, publishes or imports any child pornography	a fine of $1,000,000 and imprisonment for 3 years	a fine of $2,000,000 and imprisonment for 8 years
3(2)	(a) gives or lends any child pornography, whether or not for any form of reward (b) distributes or shows any child pornography	ditto	ditto
3(3)	has in his possession any child pornography	a fine of $500,000 and imprisonment for 2 years	a fine of $1,000,000 and imprisonment for 5 years
3(4)	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	a fine of $1,000,000 and imprisonment for 3 years	a fine of $2,000,000 and imprisonment for 8 years
3(5)	employs a person under the age of 16 for the purpose of making child pornography indecently depicting the second-mentioned person or procures the second-mentioned person to be indecently depicted		a fine of $3,000,000 and imprisonment for 10 years

5. Child pornography is defined as -

1. 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
   
   
2. any object that indecently depicts a person who is, or looks like, a person under the age of 16. (Clause 2(1))

6. The definition of child pornography appears to concentrate more on tangible forms of child pornography. Live transmission on internet and virtual graphics and images may not have been covered.

7. Indecently depicting a person means depicting a person engaging in sexual activity or depicting a person in an indecent sexual manner or context. (Clause 2(2))

8. Statutory defences are stipulated in clause 4(1) and (2) as follows -

Related Offence under	Defence
Clause 3(1), (2), (3) or (4) (see paragraph 4 above)	(a) had a legitimate cause for doing the act mentioned in clause 3(1), (2) or (4) or having child pornography in his possession; or (b) had not seen the child pornography and did not know, nor did he have any cause to suspect, it to be child pornography.
Clause 3(3)	had not asked for any child pornography and after it came into possession he endeavoured to destroy it within a reasonable time.

9. The combination of clauses 3 and 4 may suggest that any person commits any act described in clause 3 would be chargeable with an offence and it is for him to satisfy the court that he has a defence under clause 4. 10. The police or the Custom and Excise Service may apply for an warrant to enter into any premises, place, vessel, aircraft or vehicle to search for, seize, remove and detain anything relates to an offence under clause 3 and use necessary force in the execution of the warrant.

11. Any child pornography, any machinery or apparatus for showing child pornography and any machine, plate, implement, utensil, photographic film or material used for the purpose of an offence under section 3(1) shall be liable to be forfeited. (Clause 9(1))

12. Any child pornography publicly displayed on any building or other structure may upon the order of a magistrate be removed or effaced. (Clause 12(1))

Public Consultation

13. According to the LegCo Brief, the Fight Crime Committee was consulted in September 1998 and two rounds of public consultation were conducted in November 1998 and February 1999. Over 80 selected organizations including social welfare agencies, youth organizations, concern groups and associations in the fields of informations technology, mass communication and law were consulted. All of them supported the proposals in principle.

Consultation with LegCo Panel

14. The members of the Panel on Security have been briefed of the legislative proposals against child pornography on 3 September 1998.

Recommendation

15. The Bill affects not only the freedom of artistic and literal production but also the individual citizen's freedom of access to information. Members may wish to set up a Bills Committee to scrutinize the Bill in detail. The Legal Service Division is seeking clarification on a few drafting points from the Administration. A further report would be issued if necessary.


Prepared by
KAU Kin-wah
Assistant Legal Adviser
Legislative Council Secretariat
28 June 1999