Lack of clear definitions of obscenity and indecency
The situation in Hong Kong is not much better than that of mainland China, with ‘obscenity’ and ‘indecency’ defined in a rather unsatisfactory manner. The COIAO states that ‘a thing is obscene if by reason of obscenity it is not suitable to be published to any person’; and ‘a thing is indecent if by reason of indecency it is not suitable to be published to a juvenile’ (COIAO, section 2(2)). Juvenile refers to a person under the age of 18. Publication has a wide meaning, including distribution, circulation, sale, hiring, or lending of the article to the public ora section of the public (COIAO, section 2(4)). The COIAO also states that obscenity and indecency for the purpose of the legislation includes ‘violence, depravity and repulsiveness’, but again does not define those terms (COIAO, section 2(3)). In addition, the term ‘article’ is broadly defined in the COIAO to mean ‘anything consisting of or containing material to be read or looked at or both read or looked at, any sound recording, and any film, videotape, disc or other record of a picture or pictures’ (COIAO, section 2(1)).
The COIAO provides guidance in deciding whether an article is obscene or indecent, and attention has to be paid to: standards of morality, decency and propriety that are generally accepted by reasonable members of the community; the dominant effect of an article as a whole; the class or age of the potential audience; and whether the article has an honest purpose or whether its content is merely camouflage designed to render acceptable any part of it (COIAO, section 10). The presence of such guidance, albeit vague, is a better arrangement than that in mainland China where the relevant legislation does not specify which factors police or judges are required to consider in deciding whether an article is obscene. The COIAO also provides the defence of public good: if the publication of an article is in the interests of science, literature, art, learning, or any other object of general concern (COIAO, section 28). The latter is similar to the exceptions to obscene articles provided in the CL in mainland China (CL, Articles 367(2) and (3)).