Annex E

For discussion
on 3 September 1998

LegCo Panel on Security

Proposed Legislation Against Child
Pornography and Child Sex Tourism

Purpose

This paper seeks Members' views on the Administration's proposed legislation against child pornography (paragraph 6) and child sex tourism (paragraph 14).

Background

2. At present, the distribution of pornographic material is dealt with by the Control of Obscene and Indecent Articles Ordinance (Cap. 390) (COIAO) which also covers child pornographic materials. It is an offence under section 21 of COIAO to publish or possess for the purpose of publication or import for the purpose of publication of obscene articles, including child pornography. Offenders are liable to a fine of $1,000,000 and imprisonment for 3 years. A recent court case in which a Japanese engineer was convicted of distributing pornographic materials through the Internet indicated that the ambit of COIAO also covers the transmission of pornography through the Internet from Hong Kong. Transmission originating outside Hong Kong , however, falls outside our jurisdiction.

3. There are provisions in the Crimes Ordinance (Cap 200) that protect children from sexual abuse. This in turn prevents the exploitation of children in the production of child pornography. For example, unlawful sexual intercourse with girls under the age of 13 is subject to a maximum penalty of life imprisonment under s.123 of Cap. 200 and indecent conduct towards child under the age of 16 is subject to a maximum penalty of 10 years under s.146 of Cap. 200.

4. Under the United Nations Convention on the Rights of the Child (UNCRC) which continues to apply to the Hong Kong Special Administrative Region after the reunification, children should be protected from all forms of sexual exploitation including the exploitative use of children in pornographic performances. A copy of Article 34 of the UNCRC is at Annex A. Formulating legislation in this regard will be a positive step forward in implementing our obligations under the Convention.

Extent of the problem : Child Pornography

5. The following Police statistics (1995-1997) indicate that the problem of child pornography does exist in Hong Kong-

No of cases involving production/ distribution of child pornography	:	6 (all leading to prosecution and 3 cases resulted from Internet)
No. of cases involving possession of child pornography	:	10 (no prosecution as it could not be established that these were for the purpose of publication)
No. of paedophile web sites, bulletin board systems, newsgroups and e-mail addresses based in Hong Kong known to the Police	:	97

Proposed legislation against child pornography

6. To better protect children, we propose to strengthen the current legal framework by formulating a new piece of legislation in tackling the problem of child pornography as follows -

1. defining child pornographic article as any means that shows a person who is or who looks like a child under the age of 16 and focuses on the child sexual behaviour or genitals. The definition of the term "articles" will be borrowed from COIAO and redefined as sufficiently wide to cover computer files or electronic data transmitted through the Internet. Pornographic material with an adult appearing to be a child and pseudo-photographs, e.g. computer graphics, will be covered. However, those produced for legitimate reasons, for example, news reporting, artistic, research, family use or law enforcement purposes, will not be regarded as child pornography;

2. creating offences for those who knowingly possess child pornographic articles. The maximum penalty is imprisonment for 5 years on conviction on indictment and to imprisonment for 2 years on summary conviction;

3. prohibiting the procurement or employment of children for child pornography. The maximum penalty is imprisonment for 10 years on conviction on indictment;

4. prohibiting the advertisement of child pornography. The maximum penalty is imprisonment for 8 years on conviction on indictment; and

5. increasing the maximum penalty for distribution of child pornography from 3 years to 8 years imprisonment on conviction on indictment.

7. The proposed penalty for knowingly possessing child pornographic articles is 5 years, the same as those in USA, Canada and Australia. The element of "knowingly possess" signifies that the prosecution must prove the defendant's knowledge of the fact that the material he possessed was child pornography.

8. For procurement or employment of children for child pornography, the proposed penalty is the same as "Indecent conduct towards a child under the age of 16" in the Crimes Ordinance (Cap. 200). For advertisement and distribution of child pornography, we have set the proposed penalty at 8 years, which reflects its relative seriousness as compared with the proposed offences of possession and procurement.

Internet

9. In introducing legislation against the possession of child pornography, we have carefully considered the issue of child pornography transmitted through the Internet. Internet Service Providers (ISPs) can be both content providers and service providers. In the former case, the content provided by an ISP can be fully controlled. It is therefore reasonable to hold the ISP concerned responsible for the legality or otherwise of the content. However, in the latter case, the ISP re-sells bulk access capacities and provides temporary storage space to customers in the form of home pages, e-mail accounts, news groups etc. The content is not within the control of the ISP concerned. It is therefore not possible nor reasonable to require the ISP concerned to patrol such temporary storage space or even transit traffic for illegal material. The proposed element of "knowledge of possession" should be able to address the above concerns. This would also ensure that those who inadvertently come across a Web site carrying child pornographic article will not be caught by the law.

Benefits of the proposals

10. We believe the above proposals could bring the following benefits -

1. it would be a step forward in implementing the UNCRC. Many developed countries have already had legislation against the possession of child pornography. Hong Kong will be seen as lagging behind if we do not have similar legislation;

2. more stringent legislation can help to protect children who are vulnerable and incapable of making independent decisions;

3. it will send a strong message to the community that such heinous acts will not be tolerated; and

4. making possession of child pornography an offence will tackle the problem at source by deterring demand for such articles.

Child sex tourism

11. Sexual exploitation of children could have international aspects, for example, sexual exploitation of children by tourists, trafficking of young persons for brothels in other countries. A number of countries, such as Australia, Belgium, Denmark and USA have enacted extra-territorial legislation to prohibit child sex tourism. We do not have such extra-territorial legislation criminalising child sex tourism.

12. The Police have been maintaining close liaison with other Interpol members on child sex tourism. As far as the Police are aware, there are 16 known paedophiles who travel regularly to other countries in Asia from Hong Kong. There is no evidence to suggest that Hong Kong is a significant source of child sex tourists.

13. Nevertheless, as a signatory of the UNCRC, it is important to demonstrate our determination to combat such crimes by way of legislation. The nature of such offence is that it usually requires joint international efforts to tackle such activities. Without such legislation, we would not be able to effect extradition or provide mutual legal assistance to overseas jurisdictions on such offences under the restriction of double criminality. With such legislation, children in Hong Kong and overseas will receive greater protection.

Proposed legislation against child sex tourism

14. We therefore propose to provide the current legislation against sexual abuse of children under the Crimes Ordinance (Cap 200) with extra-territorial effect. These include the list of offences at Annex B. Given the evils of child sex tourism, we further propose to create an offence for organising and placing advertisement of such tours. The proposed maximum penalty is 10 years of imprisonment on conviction on indictment.

Security Bureau
August 1998

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Annex A

Extract from the United Nations Convention on
the Rights of the Child

ARTICLE 34

States Parties undertake to protect the child from all forms of sexual exploitation ant sexual abuse For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

1. The inducement or coercion of a child to engage in any unlawful sexual activity;

2. The exploitative use of children in prostitution or other unlawful sexual practices;

3. The exploitative use of children in pornographic performance and materials.

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Annex B

Provisions of Crimes Ordinance which require extra-territorial effect

Section	Offence
S.118	Rape*
S.118A	Non-consensual buggery*
S.118B	Assault with intent to commit buggery*
S.118C	Homosexual buggery with or by man under 21*
S.118D	Buggery with girl under 21*
S.118F	Homosexual buggery committed otherwise than in private*
S.118G	Procuring others to commit t homosexual buggery*
S.118H	Gross indecency with or by man under 21*
S.118J	Gross indecency by man with man otherwise than in private*
S.118K	Procuring gross indecency by man with man*
S.119	Procurement by threats*
S.120	Procurement by false pretences*
S.121	Administering drugs to obtain or facilitate unlawful sexual act*
S.122	Indecent assault*
S.123	Intercourse with girl under 13
S.124	Intercourse with girl under 16
S.126	Abduction of unmarried girl under 16
S.130	Control over persons for purpose of unlawful sexual intercourse or prostitution*
S.132	Procurement of girl under 21*
S.134	Detention for intercourse or in vice establishment*
S.135	Causing or encouraging prostitution of, intercourse with, or indecent assault on, girl or boy under 16
S.140	Permitting girl or boy under 13 to resort to or be on premises or vessel for intercourse
S.141	Permitting young person to resort to or be on premises or vessel for intercourse, prostitution, bugger or homosexual act*
S.146	Indecent conduct towards child under 16

Remarks

* Only applies to victims under the age of 16

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