Sexual Offences
Videos of Love and Hate
Case in Brief:
Ming had taken some video clips and photographs of his sexual activities with his girlfriend, Susan, at his home. He saved the video clips and photos for his private collection. However, their relationship later turned sour. Ming tried to fix the broken relationship by using the collection of video clips and photos in an improper way…
Offences discussed
Q & A
Is it a criminal offence to possess videos or photographs depicting sexual activities?
Generally, the possession of sexual images is not an offence. However it will be an offence if the images contain child pornography.
Is it a criminal offence to upload videos or photographs depicting sexual activities onto the Internet?
It is an offence contrary to Section 21(3) of the Control of Obscene and Indecent Articles Ordinance (Chapter 390) to publish any obscene article.
The maximum penalty for the offence is a fine of $1,000,000 and 3 years imprisonment.
An article is obscene if it is not suitable to be published to any person. Whether or not an article is obscene is determined by the Obscene Articles Tribunal (“OAT”) under powers given to it by the Obscene Articles Tribunal Ordinance (Part II of Chapter 390). In reaching its determination, the OAT takes account of the standards of morality, decency and propriety that are generally accepted by reasonable members of the community. Applying that test explicit videos of sexual intercourse would be classified as obscene.
If the OAT classifies the videos and photographs as obscene, the role of the court is to determine whether the uploading to the Internet amounts to publication. As the essence of publication is making material available to the public, uploading to the Internet is publishing. The articles are available to those members of the public who choose to view them.
Did Ming commit a crime by asking Susan to have sex with him or to pay him $100,000, otherwise he would upload the videos of their sexual activity to the Internet?
Ming has committed blackmail contrary to Section 23 of the Theft Ordinance (Chapter 210).
The maximum penalty for the offence is 14 years’ imprisonment.
Blackmail is making an unwarranted demand with menaces, with a view to gain for the person making the demand or causing loss to another. A demand is unwarranted where the person demanding is not entitled to the thing demanded or the use of menaces is improper way of reinforcing the demand.
Susan is not obligated to have sexual intercourse with Ming or to pay him $100,000 unless she chooses to do so out of her own free will. Ming has used the menace of uploading photographs of their sexual activity to the Internet to reinforce his demand for something to which he has no right. The menaces are such that a person of reasonable fortitude would give in to them to avoid the distress attaching to their publication.