(in reverse chronological order)
2008Sat Mar 1 Two men from central Hunan province were detained for circulating explicit photographs of actor and singer Edison Chen . The two men were arrested after police found more than 10 graphic images in an online post which attracted more than 100,000 hits. The pair had 400 of the explicit images, out of a reported total of more than 1,300, and had invited friends to their home to see them. Previously, 11 people had been detained by police in relation to the photos which law in producing, copying or circulating pornographic products, even without a profit motive, is illegal in China.Police in both Hong Kong and Taiwan have also detained people on suspicion of possessing and distributing the photographs. VIA |
| Edison is now demanding that the authorities carry out a criminal probe to see who infringed on his copyrights.Chen reported to Hong Kong Customs on Friday through his lawyers that he suspected someone infringed his copyright on the pictures and demanded the authority carry out a criminal probe, Sina.com reported today. VIA China currently has no privacy laws, but that may change, if lawyer Yu Guofu from the Beijing-based Internet Society of China has his way. Hong Kong copyright law:- Hong Kong law prescribes that people can get up to four years in prison along with a fine of HK$50,000 (US$7,611.74) if they are found to have copied art work for sales or renting without the producer's consent, the report said. This is interpreted that if you've been sending the said pictures to your friends in a zip file via Web-Based Email(without monetary gain), you haven't run afoul of any law! The police coming after you for what you do on Web-Based Email would be an invasion of your privacy of course, but then again, the privacy law hasn't been enacted in China yet. |
Legalities in Hong Kong
Summary
1)Publishing nude photos and a video depicting sexual intercourse carries a 3 years in prison and HKD 1 million in fines sentence. (which is the maximum sentence allowed)
2)Chung Yik-tin charge was withdrawn following the according to the past ten years of practice as follows:-a)
Precedent established by Hong Kong Internet Service Providers Association that the principles stated that if the authorities found indecent content on the Internet and the website administrator did not post a warning message, the Television and Entertainment Licensing Authority will not immediately prosecute. Instead, they will give a "friendly advice" to ask for a warning message to be posted and/or remove the material. If the website administrator refuses to heed that advice repeatedly, the authorities will discontinue the service and/or prosecute the website administrator for distributing indecent materials.
b)
The authorities had obtained various opinions and learned that when a photo showing only the female sexual organs (without sexual action) is usually classified as indecent. Therefore it is invalid under the classification in the Obscene Articles.
As a result, the government withdrew the charge & the magistrate awarded Chung with HKD 18,000 in legal expenses.
3)The police cannot charge Beef Tenderloin Number Three with possession of indecent/obscene material,(because that photo cannot conceivably be classified as such) because this is not criminalized under any law. Previously, Hong Kong Commissioner of Police Tang King-shing had suggested that possession of large numbers of obscene material implies intent to distribute. This interpretation would cause Tang to become the center of much ridicule. If the friend is brought in and reveals the reporter, then this becomes a freedom of press issue. Can the reporter be compelled his/her source, especially if there is no proof that the source has distributed any photos to the public?
4)A gossip columnist knows about a incident involving the man nicknamed King Kong and the woman named Big Eyes, secretly involved in 2003. King Kong is known as a skirt-chaser while Big Eyes has her entourage of admirers. Pressures from their companies restrict them to declare their love in public. They were meeting secretly at their apartments late night. A hacker has broken into the computer and copied out the Category IV photos of fellatio. This hacker knew that this could mean a lot of money and therefore contacted King Kong. Faced with the potential ruin of his reputation, King Kong ultimately did not pay up. Instead, he contacted the police who treated as a top secret investigation. Did Edison Chen contacted the police as King Kong does and is immune from police prosecution?
5) The police in Canada will not take action unless they receive a complain about violation of intellectual property rights in the sales of laser discs of the Edison Chen photos in the shops of Toronto (Canada).
6)According to Article 170 of the Criminal Law Code of the People's Republic of China, the production and distribution of pornographic material for profit is subject to a maximum penalty of three years in jail plus fines.(This is not enforced in the example of Next Magazine and Oriental Sunday in Hong Kong, a mainland Chinese entertainment magazine )
7)Now one can go to any Hong Kong newsstand or convenience store and pick up the legal Class II: Indecent magazines with titles such as Ten Shaved Pussies or Young Girls Urinating that are wrapped in plastic and stamped with warning labels.
8) Class III is classified as obscene because they involved a sexual act between a man and a woman. Possession is not illegal.
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A 29-year-old man had published the nude photos and a video depicting sexual intercourse between himself and his girlfriend on the Internet. In addition, he also published the name and work location of the girlfriend at the same time. As a result, the man was sentenced to 240 hours of community service.
The Department of Justice argues that the penalty should be heavier. But the defendant's lawyer pointed out that the defendant had already been remanded for 14 days and he has completed at least 2/3 of the community service.
The relevance of this case is that the penalty for publishing the photos of an ordinary citizen was 240 hours of community service. But what happens to someone who published the photos of celebrities? 3 years in prison and HKD 1 million in fines (which is the maximum sentence allowed)?
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(Ming Pao)
After Ming Pao asked the Obscene Articles Tribunal to classify the photo posted by Chung Yik-tin and obtained a Class II Indecent rating, the Hong Kong police met with the Department of Justice to consider their options.
The first option is to change the charge against Chung Yik-tin from distributing Class III Obscene material to Class II Indecent material. But they did not do that. Why? Over the past ten years, the government has followed the proclaimed by the Hong Kong Internet Service Providers Association in 2007. The principles stated that if the authorities found indecent content on the Internet and the website administrator did not post a warning message, the Television and Entertainment Licensing Authority will not immediately prosecute. Instead, they will give a "friendly advice" to ask for a warning message to be posted and/or remove the material. If the website administrator refuses to heed that advice repeatedly, the authorities will discontinue the service and/or prosecute the website administrator for distributing indecent materials.
In the case of Chung Yik-tin, if the authorities did not follow the according to the past ten years of practice, they will be questioned about that departure. Besides, the photo posted of Chung Yik-tin is long gone by now, so how does one add a warning message at this time?
The police and the Department of Justice recognized that they would lose face if they changed the charge. So they decided to take the painful option to withdraw the charge. That sounds nice, but Assistant Commissioner of Police Wong Fook-chuen continued to insist that the police had sufficient evidence to prosecute Chung Yik-tin at last week's press conference. He said that the police did not make any legal errors and they could not understand why that photograph was classified only as "indecent." This created the impression that the police were "dead-enders" and contradicted the original government intent to show that it was ready to serve the course of justice at the price of losing face.
The second option was to inform the magistrate that they disagreed with the classification made by the Obscene Articles Tribunal and they want to ask for a review. Although Wong Fook-chuen had stated that the police could not understand why the photo was not obscene, the authorities had obtained various opinions and learned that when a photo showing only the female sexual organs (without sexual action) is usually classified as indecent. Therefore the likelihood of a successful review was very low. As a result, the government withdrew the charge.
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Police have not sent any of the celebrity sex photos at the centre of the three-week-old scandal to the Obscene Articles Tribunal for classification, although nine people have been arrested and three of them charged, it emerged yesterday. The revelation came two days after one of the three men charged - Chung Yik-tin, who faced a count of publishing an obscene article - was released after spending two weeks in jail after the charge was withdrawn after the tribunal ruled the image in his case, provided to it by a newspaper, was indecent, not obscene.
Adjudicator Mervyn Cheung Man-ping said the tribunal had not received any photos from police. "As far as I know, we received only five photos from a newspaper and two magazines from the Television and Entertainment Licensing Authority." Assistant Commissioner of Police Vincent Wong Fook-chuen said the force had consulted people, including adjudicators, who "don't understand why [the photograph] is indecent and not obscene". Democrat lawmaker James To Kun-sun said: "Police should learn a lesson and send all the problematic images to the tribunal after Chung Yik-tin's case."
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(Apple Daily)
At 3:08am on February 14, the netizen "Beef Tenderloin Number 3" posted at the Hong Kong Golden Forum. The post consisted of a photograph of a woman's head and a notebook computer in the background. He asked, "Does anyone know the brand of the notebook computer?" However, people quickly recognized the female as Rachel Ngan and the room as the one in the previously released collection of ten photographs of Edison Chen and Rachel Ngan. The important thing to note is that this photograph was not among the ten. When asked, Beef Tenderloin Number 3 said that this photograph had been forwarded by a friend along with other pornographic photos. So is Beef Tenderloin Number Three the infamous "Kira"?
At a more practical level, is Beef Tenderloin Number Three in legal trouble?
The police cannot charge Beef Tenderloin Number Three with the distribution of indecent/obscene material, because that photo cannot conceivably be classified as such. Here is the partial screen capture of his post.
The police cannot charge Beef Tenderloin Number Three with possession of indecent/obscene material, because this is not criminalized under any law. Previously, Hong Kong Commissioner of Police Tang King-shing had suggested that possession of large numbers of obscene material implies intent to distribute. This interpretation would cause Tang to become the center of much ridicule.
The police can summon Beef Tenderloin Number Three to assist in an investigation by asking him to reveal the source who could conceivably be "Kira" or otherwise connected. But here was Beef Tenderloin Number Three's explanation: "I have several exclusive photographs that my friend said was sent by a reporter." Is there any probable cause to think that this friend is "Kira"? If the friend is brought in and reveals the reporter, then this becomes a freedom of press issue. Can the reporter be compelled his/her source, especially if there is no proof that the source has distributed any photos to the public?
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(Apple Daily)
On July 4, 2007 (more than six months ago), 3Weekly magazine published the following report about an incident three years ago (in 2004).
This gossip columnist knows about a incident involving the man nicknamed King Kong and the woman named Big Eyes. They were secretly involved in 2003. King Kong is known as a skirt-chaser while Big Eyes has her entourage of admirers. Therefore they are acknowledged to be a natural pair. However, they could not go public due to pressures from their companies. Today, they have gone their separately ways as King Kong has an official girlfriend while Big Eyes is supposed to have a new love.
This incident occurred during their secret involvement. They were meeting secretly at their apartments late night. They were in love, and Big Eyes would oblige all the demands of King Kong.
On one occasion, King Kong and Big Eyes were having another tryst. King Kong took off Big Eyes' clothes slowly and then he began to kiss her all the way down below the waist. Just as King Kong's lips got near the most mysterious part between the legs, he took out a mobile cameraphone and recorded the entire act of cunnilingus. Some of the action were made while looking at the camera. Big Eyes did not object.
Three years have passed. Although King Kong and Big Eyes have gone their separate ways, these sexy photos remained in King Kong's computer. He would take them out some times to look at them. But a hacker has broken into the computer and copied out the Category IV photos of fellatio. This hacker knew that this could mean a lot of money and therefore contacted King Kong. Faced with the potential ruin of his reputation, King Kong ultimately did not pay up. Instead, he contacted the police who treated as a top secret investigation.
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(Ming Pao) In the shops of Toronto (Canada), laser discs of the Edison Chen photos are on sale for about HKD 40. The cost of the laser disc is probably one tenth of the sales price. According to a local lawyer, it is not against the law to sell these laser discs. The police will not take action unless they receive a complain about violation of intellectual property rights.
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(The Sun) Following the example of Next Magazine and Oriental Sunday in Hong Kong, a mainland Chinese entertainment magazine has published a special issue that contains about 30 of the Edison Chen photos. The magazine was promptly sold out after the first day. This magazine is published by a Jiangxi media unit and is distributed mainly in the Pearl River Delta region. According to Article 170 of the Criminal Law Code of the People's Republic of China, the production and distribution of pornographic material for profit is subject to a maximum penalty of three years in jail plus fines.
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(Apple Daily)
Assistant Comissioner of Police Wong Fook-chuen had previously announced that the police had seized the source of the 1,300 photos whereupon hundreds more photos appeared on the Internet. Yesterday at the media conference, Wong said when the police arrested Chung Yik-tin on January 30, Chung had admitted to publishing one of the photos and agreed that the photo was "obscene." Wong said that when the photos first appeared on January 27, some of them were stored at a server in Thailand. Tracing the path of those photos, the police reached Chung and found five photos on Chung's computer, including one that had not been published before.
Wong repeatedly denied that the police had been negligent or errant in the case. He said that the charge was withdrawn due to the appearance of new evidence. Furthermore, the police followed regular procedures in this case.
As to why the police did not submit the photo to the Obscene Articles Tribunal (leaving it to the newspaper Ming Pao to do so instead), Wong said that the police is not required to have the classification by the Obscene Articles Tribunal first before taking action. If any party have doubts about, they can file an objection and the presiding judge can send the photo to the Obscene Articles Tribunal for classification.
When the reporter asked whether the police knew how to distinguish between "indecent" and "obscene" articles, Wong angrily replied: "Sorry, I disagree with this assertion! I said it before. The law is based upon the words 'violence, corrupt and disgusting.' We took action based upon the professional judgment of our colleagues. These are colleagues who have experience in processing obscene articles. All of those photos were obscene. If you have the chance, you should ask our Police Public Relations Bureau Senior Superintendent Auyeung Chiu-kong. He has consulted with an Obscene Articles Tribunal adjudicator, who does not understand why the photo was only indecent and not obscene." When asked, Auyeung Chiu-kong declined to comment and only recommended an adjudicator to say some nice things about the police.
The key points from Wong Fook-chuen at the media conference:
- Chung Yik-tin admitted that the photo was obscene on the day of his arrest
- None of the veteran police officers who had processed obscene/indecent materials before had doubted that the photo was not obscene
- Chung Yik-tin is suspected of defrauding banks of HKD 570,000
- The magistrate had seen the photo and accepted the charges made by the prosecutor
The responses from Legislative Councilors/Lawyers James To and Ronny Tong:
- The admission by Chung Yik-tin was a statement not presented in court as yet, and it was wrong for the police to disclose it in a media conference
- The judgment of the police is suspect and they should have sent the photo to the Obscene Articles Tribunal for classification
- The police is grasping for straw to excuse themselves. During the process, they are unethically ruining the reputation of the suspect and making things even worse.
- The Obscene Articles Tribunal is the sole entity that can make the classification. The police position is challenging the rule of law.
[Additional notes:
- Why is the judgment of the police suspect? The photo was that of a female naked and spread-legged on a bed. Now one can go to any Hong Kong newsstand or convenience store and pick up the legal Class II: Indecent magazines with titles such as Ten Shaved Pussies or Young Girls Urinating that are wrapped in plastic and stamped with warning labels. The photo in the case is similar to those that appear in the magazines, and it therefore Class II: Indecent under the prevailing standards. Among the five photos in Chung's possession, two of them were classified Class III: Obscene because they involved a sexual act between a man and a woman. Those magazines do not contain sexual acts either. However, Chung is not charged with distributing the two obscene photos and possession is not illegal.
- The magistrate also stated that the defendant Chung Yik-tin does not have the right to decide what is obscene, indecent or neither. Besides, Chung's lawyer argued that his client only acknowledged that the photos were pornographic and not as the more technical Class III: Obscene. Therefore the prosecution cannot base the determination solely upon the admission of the defendant. As a result, the magistrate awarded Chung with HKD 18,000 in legal expenses.]
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(South China Morning Post)
The first man arrested over the celebrity sex-photos scandal was freed yesterday when the charge against him was abruptly withdrawn after he had spent two weeks behind bars. Amid a storm of criticism over police handling of the case, Chung Yik-tin, 29, walked out of Tuen Mun Court disguised in a surgical mask and hat after the Department of Justice withdrew a charge against him of publishing an obscene article. On Thursday the Obscene Articles Tribunal, in response to an application by a newspaper, ruled that photographs circulating on the internet of a woman, allegedly Canto-pop star Gillian Chung Yan-tung, naked and spread-legged on a bed with singer-actor Edison Chen Koon-hei, were indecent but not obscene. Its ruling is an interim one. "After a thorough review we found the possibility is low that the tribunal will make a [final] classification of the photo as obscene. For justice to be seen to be done, we've decided to withdraw the charge," senior government counsel Hayson Tse Ka-sze told the court.
Assistant Commissioner of Police Vincent Wong Fook-chuen said the force had handled the case in accordance with the law and normal practice. The police had consulted people, including some Obscene Articles Tribunal adjudicators, who "don't understand why [the photograph] is indecent, not obscene", he said. Mr Wong also pointed out that Chung had admitted the picture was obscene before the charge was laid.
The Chinese-language newspapers in Hong Kong were much less kind towards the Assistant Commissioner of Police. The headlines said that Wong was uttering rubbish in defending the police action.
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(Ming Pao) Today, the Department of Justice applied to the court to withdraw the charge of distribution of obscene material against Chung Yik-tin and requested his unconditional release. The reason was that the Obscene Articles Tribunal had ruled that the article was indecent, not obscene. Hence, there cannot be a charge of distribution of obscene material anymore. The petition was approved by the magistrate, and Chung was released immediately. Chung had been held in custody for more than two weeks. According to information, Chung was fine with staying in prison (except for the anal inspection during admission).
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(Ming Pao) When Chung Yik-tin, the Hong Kong police charged with distribution of an obscene article. But was that photograph 'obscene'? It would be the Obscene Articles Tribunal to make that judgment, not the Hong Kong police. But throughout Chung's detention, the police never asked the Obscene Articles Tribunal to classify that photograph.
On January 5, Ming Pao submitted five photographs from the Edison Chen collection to the Obscene Articles Tribune and asked for them to be classified. (Note: Ming Pao has to pay money for this service) On the day before yesterday, the Obscene Articles Tribunal completed its work. Two of the photographs involving fellatio were classified as Class III Obscene Articles. The other three photographs that revealed female breasts and vagina were classified as Class II Indecent Articles.
Yesterday Legislative Council member James To, who is also a lawyer, went to visit Chung Yik-tin and showed him the five photographs. Chung indicated that the photograph that he uploaded was the very first one in which a female who resembles Gillian Chung was sitting in her bed with legs wide open and showing her vagina. That photo was classified by the Obscene Articles Tribunal as Class II Indecent, and not Class III Obscene as the police claimed. James To then contacted Secretary for Justice Wong Yan-lung and informed him that the police charge against Chung Yik-tin is not longer valid since the article was indecent, not obscene.
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(Ming Pao) Chung Yik-Tin is the Hong Kong user who was the first to be charged with uploading one obscene photograph in the Edison Chen collection onto the Internet. At the court hearing, the magistrate took a look at the photograph, heard the police described the financial situation of Chung who had HKD 500,000 in debts and ordered him held in custody for the next eight weeks until the next court hearing. By comparison, the other suspects who uploaded far more photographs were granted bail. Therefore, the case of Chung Yik-tin became the center of public attention for the arbitrary standards of justice. The government was apparently more anxious to get Chung out of detention than Chung himself. In principle, Chung was entitled to ask the magistrate to review the case every eight days. He could also apply directly to the high court for a review. But Chung did nothing. What can the government do about this guest who wouldn't leave while public opinion pressure continued to grow?
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(Apple Daily)
On February 9, 221 obscene photographs were released.
The photographs were apparently circulated by email, since all the Hong Kong discussion forums are now under self-censorship upon warning by the police. Eventually, the two photographs were posted on overseas file-sharing websites. They can also be obtained through peer-to-peer services.
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