Tim Hamlett's Hong Kong

PUBLISHED : Wednesday, 06 February, 2008, 12:00am
UPDATED : Wednesday, 06 February, 2008, 12:00am

A veteran journalist and Baptist University academic, Tim looks at the issues facing the city. E-mail him at hamlett@hkbu.edu.hk

Why is Chung Yik-tin in jail? Chung is the man who appeared in court on Friday charged with publishing an obscene article, namely a revealing picture of a film star. Chung was described as thin, wearing glasses and with a moustache, so we have something in common. The report was not very forthcoming. There are legal restrictions on the reporting of this kind of preliminary hearing.

We were told the charge, that Chung was not required to enter a plea and that the prosecution asked for an adjournment for eight weeks pending police investigation and legal advice. We were also told that when the charge was read to Chung he answered 'understand', from which we may deduce, I think, that he was not legally represented.

Reading on we discovered that Principal Magistrate Kwok Wai-kin granted the adjournment, which will keep the proceedings on ice until March 28. And then refused bail. So Chung is in prison.

This is a rather sketchy account on which to base an opinion, but the freedom of the individual from arbitrary punishment is a serious matter and it is difficult to avoid the suspicion that Chung has been sacrificed to appease an orgy of puritanical posturing over the question of filthy pictures on the internet.

Under our system, Chung is entitled - not allowed, entitled - to be regarded as innocent until proven guilty. So what is he doing in prison? Generally there are only two reasons for refusing bail. One is that the defendant may interfere with the witnesses, which hardly seems to arise here. The other is that the defendant is likely to leave the jurisdiction before trial. Well-heeled defendants with proper lawyers generally head this one off by surrendering their passports and reporting daily to the police.

The charge in this case has a maximum penalty of three years' jail. This might be worth emigrating to get away from but that is, after all, the maximum. When it comes to sentencing, Mr Kwok will need to consider the need to keep some punitive power in reserve for cases in which the miscreant actually produces the obscene article and sells it at a profit.

He will also, one might hope, consider that it is generally considered excessive in all but the more serious cases to resort to a custodial sentence for a first offender. But he will be a bit late for that. Chung has a custodial sentence already. He is separated from his family, his job, his normal life. And yet he is presumed innocent.

Eight weeks will not be the end of it. At that point, Mr Kwok will have to adjourn the case again and refer it to the Obscene Articles Tribunal for a finding on whether the item complained of is obscene. At this point we enter an interesting legal thicket of the tribunal's own devising.

In the old days when Hong Kong courts followed the common law tradition, the test of obscenity was the effect on the beholder. If a picture was likely to 'deprave and corrupt' those who saw it, then it was obscene. And if not, not. Now it is difficult to be sure exactly what the tribunal is up to - its published conclusions are confused and illiterate - but it has certainly abandoned that arrangement. It now considers the feelings of the pictured person and the ethical standards applicable to the photographer's behaviour, so that the obscenity of a photograph may depend on whether it was taken through a keyhole.

There is a problem here: these matters involve judgments of fact, but the tribunal is not equipped to consider matters of fact. It does not call evidence and it does not hear witnesses. Chung's case concerns a set of pictures on the internet, which may or may not be wholly or partially of particular actresses.

All we have to go on in this case are the images concerned. Like millions of Hongkongers, I was interested to see what all the fuss was about and I can now testify that the lady concerned, if indeed it is her, is as beautiful in the flesh as she is in her movies.

But personally I do not think any of it is her. The lighting is low and the quality poor. They appear to be stills from a video. You can't see the face very well anyway. Under these circumstances a lot of people probably have a double in the porn industry.

How is the tribunal going to decide, if it comes up, whether the picture is of the person stated in the caption, whether the lady depicted, or that part of her below the neck, consented, or whether the couple knew they were being photographed?

The tribunal can duck this by going back to simple contemplation of the pictures. But in that case the poses are not very revealing and probably ought to be considered merely indecent. In which case Chung will be acquitted. And Mr Kwok embarrassed, perhaps. Meanwhile, is there a public-spirited lawyer out there willing to attempt a rescue?