Hong Kong: The Big Brother is Watching You!

The darkest day

It is cold and dark, not only because of the weather but because of the crazy crack down of internet and massive arrest of netizens.

Hong Kong Police has gained the permit for moral patrolling in the Internet via a scandal which involved 4 prominent popular stars private photos on love making.

The photos were posted in an overseas forum and then linked to popular forums in Hong Kong, China and Taiwan. The story had made into the front page of local newspapers in Jan 29 and stirred the hottest debate in town about whether or not the photos are fake? Who else will appear? And how to control the Internet from further distribution?

The next day, the police said they had tracked down 30 ip addresses and took action in arresting a 29 years old unemployed netizen. Yesterday, the netizen was put on trial for violating “the Control of Indecent and Obscene Article Ordinance”. The police found in his computer 12 photos and had evidence that he had uploaded one of the photos to a local forum. The magistrate claimed that the suspect is under a serious charge and rejected the request for bail. He had to be in jail for 8 weeks before the next hearing on March 28.

Today 4 more netizens were arrested just because they had possessed the photos. The police claimed that “they have reasons to believe that they would circulate the photos”.

According to the “Control Ordinance” the mere possession of class III obscene article would be considered as a criminal case, which means, any self-shot or downloaded love making photos that show sexual organs and intercourse and meant for distribution could have violated the ordinance. The maximum penalty for possession and distribution of class III obscene article is HKD one million fine and three years imprisonment. However, at present, the photos haven’t been classified by the Obscene Article Tribunal yet.

Yesterday, a net friend had sent me a set of the photos and asked me to make a judgement. The most “extreme” ones are showing oral sex. The fact that mere possession of the photos, according to the police, constitutes to the arrest, I am now a target. Of course, the mainstream newspapers which had published the censored versions 4 whole days are also in possession of the photos. But the crack down is obviously on individual netizens.

Abusive Police Power

It is very clear that the police has abused their power by making use of the public outrage.

1. The photos haven’t been classified yet and the police had made the judgement without going through the “Obscene Article Tribunal”.

2. The photos might have violated the privacy of the popstars involved, however, because the popstars refused to admit that the photos are genuine and did not apply for court order to ban the circulation of the photos, the police chose to use “the Control of Indecent and Obscene Article Ordinance”.

3. However, according to existing law on the “Control of Indecent and Obscene Article Ordinance”, class II indecent article can be circulated with proper warning message. Most of the local forum has proper warning; it is totally out of mind to arrest netizens for possession of the items under the charge of “distribution of indecent and obscene article”. If the photos are treated as class III obscene articles, all the mainstream media companies, thousands of netizen, and the popstars themselves would have to be arrested. The possessors' intention for distribution becomes an arbitrary police power. In the arrest of the 29 years old netizen, the poor financial situation constitutes to his intention of distributing the may-be Class III obscene photos.

4. The police had failed to identify and take action against the source of the photos while selectively prosecuted vulnerable individuals to threaten other citizens / netizens.

5. The police had acted on behalf of the legislative and judicial body by claiming that the transmitting of indecent photos via personal communication, such as mobile phone will violate “the Control of Indecent and Obscene Article Ordinance” whereas earlier court case defined internet “distribution” as “uploading” for public downloading. In fact the "Control Ordinance" is not for banning any kind of distribution but distribution of indecent material to children under 18.

The 8 weeks detainment of the 29 years old suspect is totally out of track. Although the charge was the distribution of “one indecent / obscene photo”, the prosecutor has layouted irrelevant “evidences” such as the possession of many credit cards without proper financial backup to discredit the suspect, as well as the 11 other photos which hadn’t been distributed by the suspect but were in his computer. The police claimed that he is in suspect of distributing the photos for financial reasons.

A few months ago, in another local court case concerning the distribution of several obscene photos via img src hyperlink in a local forum, the fine was HKD$5,000, while, this time the suspect's mother is willing to pay a HKD$10,000 to bail out but the court rejected and kept the suspect held in prison for two months.

Which is a more serious offence?

A blogger Tang King has quoted two other court cases one is a suspect case on 3 under-aged sexual intercourse and one on a car accident which killed a pedestrian due to over speed.

In the first case [KCCC765/08], a car seller was in suspect of paying three under-aged girls for having sex and taping the sex scene in an apartment. The suspect was charged for 16 criminal offences. However, he managed to bail out with HKD$40,000. Where as in the second case, the extremely wealthy driver paid an overseas expert to challenge the accuracy of the police speed measuring device and got over the case with just HKD$20,000 fine and suspension of his driver license.

Tang King asked: which is more serious? The charge on the distribution of one photo of consent sex between two adults, or the commercial sex with three under-aged girls?

It is immoral to distribute the photo and bring harm to the people involved. However, it is more immoral and outraging for the police to prosecute individual netizens without going through proper legal procedure and without clarifying the nature of the case (whether it is a libel case or privacy or distribution of indecent / obscene article). The result is white terror in Internet public sphere and among netizens, who have been a key player for bringing down the first chief executive Tung Chi-hwa in 2003 and 2004 July 1st rally.

Obscure Law: Guilty for Possession

Moreover, the case shows the obscure nature “the Control of Indecent and Obscene Article Ordinance” and how easily it invites the police’s invasion into our private life. The fact that ordinary love making scene can be taken as class III and becomes a criminal act for mere possession of photos, image data, etc, turns literally everyone into an obscene subject. As the intention for distribution is difficult to be proved. It has invaded into people’s private life and path way for the police to extend its power into monitoring our private life and possession, such as P2P communication and personal computers data.

The civil society has demanded the government to amend the ordinance to protect freedom of expression and the city’s creativities. However, the government and conservative political parties kept stressing the need to strengthen control in order to protect youth and children. Now they have given the permit for police to patrol our private life and criminalize “immoral” behavior from social deviants and political dissents.

(Photo: Jan 30 Apple daily via ESWN)