Consultation Paper on Proposed Legislation for the Prevention of Child Pornography

5. Procurement of persons under 18 years old for making pornography or for pornographic performances

16. To comply with the ILC 182, it is proposed to add provisions under the Crimes Ordinance (to form part of the Prevention of Child Pornography Bill) to prohibit the use, procuring or offering of a person under the age of 18 to be pornographically depicted for making pornography or to participate in a live performance. In this connection, children under the age of 16 are considered more vulnerable. They may not be able to make independent decisions and give informed consent. We therefore consider that the level of protection for children under 16 should be higher than those of the age of 16 or above but under 18 (referred to as "between 16 and 18" hereafter), and propose a two-tier definition for pornographic depiction involving children.

17. On the one hand, procuring a person under the age of 16 is prohibited if the subject pornography or pornographic performance is a pornographic depiction within the proposed definition in paragraph 11 above. On the other hand, procuring a person between 16 and 18 is prohibited if the subject pornography or pornographic performance visually depicts the person -

(a) as being or appearing to be engaged in explicit sexual conduct; or

(b) for sexual purposes where the dominant feature of the depiction is the genitals or anal region of the person or, in the case of a female person, her breast.

18. This two-tier definition makes a distinction between the level of prohibition against procurement of children under 16 and those between 16 and 18. While category (a) of the two definitions is the same, the level of protection of children under 16 is higher in respect of category (b). For instance, visual depiction in a sexual manner or context of the sexual parts of a person under 16 may constitute an offence for procurement even without showing the sexual parts as dominant feature. Taking into account the need to offer stronger protection to children under 16, we believe that this distinction is proportionate and necessary. However, it should be noted that no defence clause will be proposed for these procurement offences because in procuring a child, actual contacts are made with the child concerned. The exploitation is similar and in many circumstances no less serious than that incurred in other sexual offences involving a child. Furthermore, a procurer is in a position to ascertain the age of the child being procured and is the one who directly exploits the child. Given the tight definition of pornographic depiction and the heinous nature of procurement offences, it would not be appropriate to provide a statutory defence clause.

19. Nevertheless, this procurement offence is only applicable to acts conducted in Hong Kong. In other words, procurement acts that occur outside Hong Kong will not be governed by the proposed legislation. Likewise, local distributors of foreign films will not be required to ascertain the age of the actors and actresses in the films. However, after the Bill is passed, local film-makers or scouting agents should refrain from procuring or employing persons under 18 to be pornographically depicted in pictures or movies with reference to the two-tier definition of pornographic depiction under the Bill.