LC Paper No. CB(2) 172/98-99(01)
1. Document the extent of the child pornography problem in Hong Kong.
Hong Kong Needs Child Protection Legislation
Summary of Recommendations
[e.g. prevalence of child pornographic materials produced in Hong Kong; imports from abroad; information about producers, importers and purchasers]
2. Document prevalence of Hong Kong-based child sex tourism.
3. Legislate specifically against production, sale/distribution, import/export, publication and possession - whether or not meant for publication - of child pornography.
4. Legislate to enable extraterritorial jurisdiction in prosecution of international sex tourists for documented acts committed abroad.
HK Needs Child Protection Legislation
Inadequate Legal Protection
Hong Kong has no laws treating child pornography as a specific offense. The 11 March decision of a stiff sentence for posting child pornography on the internet should serve as a wake-up call that Hong Kong has a moral obligation - and an obligation under the Convention on the Rights of the Child1
- to prevent the commercial sexual exploitation of children. Hong Kong needs specific child protection legislation against both child pornography and Hong Kong-based child sex tourism.
The Government does not keep statistics on seizures of pornographic materials or prosecutions for distributing pornography specific to children. However informal Police Department figures reveal that child pornography is a problem in Hong Kong (see attached statistics). The significant amount of internet-based materials indicates a local market in cyber-porn that poses a threat in and outside of Hong Kong. There is no legislative basis on which to prosecute those caught using these materials, and no specific basis on which to prosecute those involved in pornography relating to children.
At present the Control of Obscene and Indecent Articles Ordinance (cap. 390) covers both adult and child pornography. Publishing, and possessing or importing for the purpose of publishing obscene or indecent articles, whether or not for profit, is an offence punishable by fine and imprisonment. The proliferation of locally-produced pornographic materials is overseen by the Television and Entertainment Licensing Authority.
Child pornography is a serious offence, and should be treated as a crime under the Crimes Ordinance. The current legislation does not adequately address the extensive connection between child pornographic materials and exploitative, underage sexual activities.
Dangerous Nature of Child Pornography
For a variety of reasons, child pornography is more serious than adult pornography. Children are less able to make independent decisions, and thus their involvement in pornography is extremely harmful exploitation. Child pornography is often used to break down children's barriers and encourage them to participate in other more heinous acts. There is much less of a profit to be made from child pornography than from its adult counterpart, and those who engage in it do so primarily for their own satisfaction. Child pornography has a much more specific and disturbed clientele, many of whom congregate within the Asia-Pacific region.
Hong Kong Has Responsibility
1 The United Kingdom and the People's Republic of China ratified the United Nations Convention on the Rights of the Child in 1991. The Convention was extended to Hong Kong in 1994. Article 34 of the Convention commits signatories to: "undertake to protect the child from all forms of sexual exploitation and sexual abuse." Signatories pledge to take all appropriate actions to prevent: "a) The inducement or coercion of a child to engage in any unlawful sexual activity; b) The exploitative use of children in prostitution or other unlawful sexual practices; and c) The exploitative use of children in pornographic performances and materials." Many parties have interpreted this article as an obligation to enact child protection legislation against sex tourism and child pornography. See ECPAT documents for the World Congress Against Commercial Sexual Exploitation of Children, Stockholm 1996: "The International legal framework and current national legislative and enforcement responses", Muireann O'Briain (http://www.ch ildhub.ch/webpub/csechome/2156.htm); "Child pornography: an international perspective", Margaret Healy, (http://www.childhub.ch/webpub/csechome/215e.htm).
As a leader in the region, Hong Kong has the responsibility also to take action against the international problem of child sex tourism. According to End Child Prostitution in Asian Tourism (ECPAT), an international NGO, tourism is a major contributing factor in the growth of the sexual exploitation of children. Many areas in Southeast Asia, such as the Philippines, Thailand, Indonesia and Vietnam, have a well-established industry of underage prostitution, and have become the regular haunts for international pedophiles. Given the frequency of Hong Kong-based travel throughout the region2
, there is little doubt that Hong Kong is home to pedophiles; the Police Force's Child Protection Policy Unit has details of known expatriate pedophiles using Hong Kong as their base for regional activities.3
For all of these reasons, many jurisdictions within the region - including Taiwan, the Philippines, Sri Lanka, and Australia - and the United States and most European countries have enacted specific legislation against the production, sale and distribution, and in most cases the possession of child pornography.4
Tokyo launched similar legislation this month. A number of these states have also enacted laws specifically against child sex tourism; the laws in part provide for extraterritorial jurisdiction, so that their nationals can be prosecuted at home for acts committed abroad.5
Hong Kong has no system to monitor or regulate against locally based regional sex tourism, and thus we cannot measure the scale of activities. Yet given Hong Kong's position as a center of the Asia-Pacific region, in which underage prostitution and international sex tourism is a serious problem, Hong Kong has a regional obligation to act against regional
2 According to the Immigration Department, in 1996 37,139,568 Hong Kong citizens departed Hong Kong, and 41,605,128 left in 1997. Of these, 445,162 in 1996 and 521,186 in 1997 went to Thailand; 298,294 in 1996 and 317,812 in 1997 to the Philippines, and 106,029 in 1996 and 94,796 in 1997 to Indonesia.
3 Sunny San Tze-kin, Detective Inspector, Child Protection Policy Unit, Hong Kong Police Force, personal communication 18 March 1998.
4 One of the most stringent legislative against child pornography and prostitution is in effect in the USA. It includes the Sexual Exploitation of Children Act (1997) that prohibits using a minor (under age 18) in the making of pornography, taking a pornographic picture of a minor, and the production and circulation of materials advertising child pornography; transportation, importation, shipment and receipt of child pornography by any interstate means, including by mail and computer, is also prohibited. The Child Sexual Abuse and Pornography Act (1986) bans the production and use of advertisements for child pornography, and includes a provision for civil remedies of personal injuries suffered by a minor who is a victim. Its provisions raised the minimum sentences for repeat offenders from imprisonment of not less than two years to imprisonment of not less than five years. The Child Protection and Obscenity Enforcement Act (1988) makes it unlawful to use a computer to transmit advertisements for or visual depictions of child pornography; it also prohibits the buying, selling or otherwise obtaining temporary custody or control of children for the purpose of producing child pornography. It is also a federal crime for anyone using the mail, interstate or foreign commerce, to persuade, induce or entice any individual younger than the age of 18 to engage in any sexual act. The Violent Crime Control and Law Enforcement Act (1994) criminalizes domestic or international travel with the intent to engage in sexual acts with a juvenile (New Zealand and Australia have similar provisions). Finally, in a specific attack against child pornography on the internet, the Child Pornography Prevention Act (1996) amends the definition of child pornography to include that which actually depicts the sexual conduct of real minor children and that which appears to be a depiction of a minor engaging in sexual conduct (i.e. "morphed" or digitally altered images). From the Exploited Child Unit of the National Center for Missing and Exploited Children, (http://www.missingkids.com/html/ncmec_default_ec_childporn_laws.html). The relevant legislation in the United Kingdom is the Protection of Children Act 1978 (as amended by the Criminal Justice and Public Order Act 1994)
5 The following countries have legislation making child sex tourism illegal: Australia, Belgium, Canada, Denmark, Finland, France, Germany, New Zealand, Norway, Spain, Sweden, Switzerland, UK, USA. the laws of the following countries include extraterritorial jurisdiction: Australia (1994), Belgium (1995), France (1994), Germany (1993) and New Zealand (1995). The one known case of prosecution was in respect to an Australian man convicted in 1996 for acts committed in the Philippines child sex tourism. While the gravity of the problem may be difficult to document, the very heinousness of the trade and the fact that it is on the rise in the region should be sufficient to warrant specific legislation, monitoring and enforcement.
- In relation to child pornography, acts are connected to materials;
- Both acts and materials circulate on a regional basis; and
- The regional and Hong Kong-based industries of child sex tourism and child pornography are growing,
Citizens Party calls for a concerted effort to document the extent of the problem of child pornography in Hong Kong - including the prevalence of child pornographic materials produced in Hong Kong and those imported from abroad, and information about those responsible for it.
Citizens Party calls for specific legislation against the production, sale and distribution, import/export, publication and possession - whether or not it is meant for publication - of child pornography.6
There is also a specific need for more information on the prevalence of Hong Kong-based child sex tourism, and for legislation including extraterritorial jurisdiction in prosecuting Hong Kong-based international sex tourists for documented acts committed abroad.7
While prosecutions of international child sex tourists in Asia are growing, they pale in comparison to the scale of the problem. Even when offenders are caught, all but a very few escape prosecution. Hong Kong can fulfill a regional obligation by enacting and enforcing legislation to make these acts a crime under Hong Kong law.
Hong Kong must take action to ensure that this is not a safe place for pedophiles to live and work.
6 The legal definition of "Child Pornography" should include pornographic materials in print and on the internet, visual, virtual written and audio presentations, and pseudo-photographs that depict children under the age of 16.
7 See Peter Wesley-Smith, Constitutional and Administrative Law in Hong Kong: "The Hong Kong (Legislative Powers) Order 1986, made under the Hong Kong Act, empowers the Hong Kong legislature to make laws having extraterritorial operation relating to civil aviation, merchant shipping, and admiralty jurisdiction. The Hong Kong (Legislative Powers) Order 1989, also made under the Hong Kong Act, empowers the Hong Kong legislature to make laws having extraterritorial operation, to the extent required in order to give effect to an international agreement which applies to Hong Kong, and for connected purposes" (pp.205-6). Also section 37J of the Immigration Ordinance provides: "where a person is in Hong Kong, he may be charged and convicted in respect of anything which was done or which occurred wholly or partly outside Hong Kong that would have been an offence under this Part if it had been done or had occurred within Hong Kong"
HK Needs Child Protection Legislation
Statistics on Child Pornography as at 16 March 19988
- Amount of child pornographic materials seized by the Police during the past 3 years:
- 2 Gigabytes
- 405 floppy disks
- 500 magazines
- 138 photos
- 53 video tapes
- 4 CD-Roms
- 62 VCDs
- Number of people involved in the production of child pornographic materials on the internet in Hong Kong during the past 3 years:
- known to the Police:6
- arrested by the Police:3
- Number people caught by the Police distributing or involved in the production of child pornographic materials during the past 3 years:
- cases: 6
- prosecutions: 6
- Number of people caught by the Police possessing child pornographic materials during the past 3 years:
- cases: 10
- prosecutions: nil
- Number of Hong Kong-based pedophile materials on the internet known to the Police during the past 3 years:
- websites: 30
- bulletin board systems (BBS):31 (one of which had 1295 active users)
- email addresses: 8
- newsgroups: 28
8 Provided by Sunny San Tze-kin, Detective Inspector, Child Protection Policy Unit, Hong Kong Police Force, personal communication 18 March 1998.