Understanding the Control of Obscene and Indecent Articles Ordinance (COIAO)

Definition

According to the COIAO, “obscenity” and “indecency” include “violence, depravity and repulsiveness”.

Classification System

Under the COIAO, an article may be classified as:

Class I (Neither Obscene nor Indecent)
Class I articles may be published without restriction.

Class II (Indecent)
Class II articles must not be published or sold to persons under the age of 18. Publications of Class II articles must comply with the statutory requirements, including sealing such articles in wrappers and the display of a warning notice.

Class III (Obscene)
Class III articles are prohibited from publication.

Adjudication System

The Obscene Articles Tribunal has exclusive jurisdiction to determine whether an article is obscene, indecent or neither for the purpose of the COIAO. Apart from enforcement agencies, prospective publishers may submit articles to the Obscene Articles Tribunal on a voluntary basis to obtain classification rulings, so as to avoid breaching the law.

The Obscene Articles Tribunal is a judicial body, which comprises a presiding magistrate and two members of the public appointed by the Chief Justice to serve as adjudicators. Currently there is a pool of some 500 adjudicators serving the Obscene Articles Tribunal. Section 10 of the COIAO provides a list of factors which the Obscene Articles Tribunal shall have regard to have regard to in determining whether an article is obscene or indecent:
a. standards of morality generally accepted by reasonable members of the community;
b. the dominant effect of the article as a whole;
c. the class or age of the likely recipients;
d. the location at which the article is displayed; and
e. whether the article has an honest purpose.

Enforcement

At present, three Government departments, namely, Office for Film, Newspaper and Article Administration, Police and Customs and Excise Department are responsible for the enforcement of the provisions under the COIAO. The division of labour is as follows:

Office for Film, Newspaper and Article Administration focuses on the sale of indecent articles in the market by inspecting retail outlets and monitoring publications on sale in the market;

Police focuses on the sale of obscene articles in the market and transmitted on the internet and conducts joint operations with Office for Film, Newspaper and Article Administration from time to time;

and Customs and Excise Department tackles obscene and indecent articles at customs entry points.

Penalty

Publication of obscene articles is subject to a maximum penalty of $1 million fine and three years' imprisonment upon conviction. The first conviction for publishing indecent articles not in compliance with the statutory restrictions may attract a maximum fine of $400,000 and imprisonment for one year, and each subsequent conviction would attract a penalty of $800,000 and imprisonment for a maximum of one year.