不談假惺惺的道德,只講赤裸裸的法律

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香港這個社會當真病態得很,在虐殺貓狗,甚至向少女及智障人仕拳打腳踢導致重傷後,又出現《壹本便利》刊登藝人寬衣照的劣行,不禁叫人想想香港究竟需要普選多些還是道德教育多些,一個有民主選舉但無良知的社會也叫人遺憾。英國的小報從前也會刊登已故戴安娜皇妃的偷情照,但決不敢偷拍她的寬衣照,因為他們的良心懂得什麼是底線。

天主教徒之恥!

本地的傳媒良莠不齊,以下流手法揭露私隱以圖利早已屢見不鮮,但萬料不到該雜誌社居然是一名受陳樞機愛護有加的天主教徒所有。一點也沒錯,黎智英是天主教徒,這好像親眼看到一名身披袈裟的高僧去嫖妓一般讓我感到驚訝。因為任何一位受聖言感化的天主教徒亦不會縱容下屬幹此令人髮指的事,更不消說此人是陳樞機身邊的「紅人」了。想到這個賤肉橫生的肥佬前陣子才隨陳樞機到梵帝岡謁見教皇,真歎沒有比此更褻瀆His Holiness了。黎智英的所為根本是「天主教徒之耻」,諸位主內的兄弟姊妹應鄙與為伍,因為以其品格而論,他甚至不配稱為「人」!

陳樞機,你要小心

即使受到社會輿論猛烈抨擊,黎智英那邊廂竟授意或默示雜誌去加印該「大便」雜誌,而這邊廂當陳日君被記者問及為何不就此事件發表評論時,他竟說每日都有咁多雜誌報道,邊到評論得咁多。這簡直就與他老人家平日一貫作風相違背,他不是凡事都愛指指點點嗎?猶記得當日世貿會議在香港舉行,他老人家竟指警察為「香港之耻」,現在黎智英的雜誌刊登女藝人的更衣照來謀利時,他居然充耳不聞,更袒護說「佢對下屬管理好鬆」,這真是荒天下之大謬,難道在沒有黎生的授意下,《壹本便利》會在全城怒吼中還去加印嗎?本人奉勸陳樞機一句,「就算你護短都唔好咁出面」。

法律能維護公義嗎?

最教人惱怒的是,除了《壹本便利》會因干犯不雅物品條例而被判罰款外,就沒有別的更具阻嚇性的刑罰去懲處《壹本便利》及其老闆黎智英了。縱使在沒有對方同意而拍攝別人全裸或半裸照片已屬「非禮」,但在這種沒有任何身體接觸的情況下,受害人必須要知曉有人向她拍攝,方能構成「非禮」,最重要是事發現場並不在本港的司法管轄權內,而此事又不抵觸個人資料私隱條例(因被刊登的照片按法理不屬個人資料)或性別歧視條例內有關性騷擾的指控。這充份說明現行法制的不完備,也容易為不法商人所乘。

在現有法律下,阿嬌能怎辦?

以下我將從法律角度討論阿嬌的處境,而讀者也可藉此想想,在這個似乎很現代和進步的社會,假如自己或親友被人偷拍,你將會是何等無助。

In the present case, any reasonable person would ask whether our criminal law could sanction Easy Finder Magazine and Jimmy Lai who always poses as a warrior of freedom of speech but is in fact a good-for-nothing pig talking nonsense all the time. In case of criminal law, we have to first consider the problem of jurisdiction and to divide the incident into two stages: the photo-taking in Malaysia and the publication of this picture in Hong Kong. Publication of this photo in HK is only against the Control of Obscene and Indecent Articles Ordinance Cap 390 which only results in the penalty of fine if found guilty, it is not even a criminal sanction. Regrettably there is no relevant criminal law prohibiting this act.

Concerning the photo-taking that happened in Malaysia, unless it could be proved that it was the agent of Jimmy Lai or the Easy Finder paparazzi who took the picture of Gillian Chung in the changing cubicle, the HK court has no criminal jurisdiction in this case. But even if the blackguard who took the picture concerned was Jimmy Lai’s agent, with reference to the Territorial Principle (the place where the offence takes place), Nationality Principle (the nationality of the offender) and Universality Principle (the custody of the offender), only the Malaysian court has the jurisdiction since the crime took place in their country, at most they may try to arrest the head of the Easy Finder Branch in Malaysia, if any. Otherwise, Jimmy Lai would easily get off the hook.

偷拍不一定算非禮

Now if this happened in HK, what course to be taken depends on whether Gillian Chung was aware of being photographed. If she was aware throughout that she had been pictured, it may be the case of Indecent Assault(section 122 of Crimes Ordinance). Of course it is the settled law in Hong Kong that taking nude photos of the victim amounts to indecent assault. And the four essential elements for indecent assault are namely actus reas(assault), absence of the victim’s consent, indecency and mens rea of the offender, which is his recklessness to the victim’s absence of consent. Knowledge is important since when it concerns assault (actus reas of the crime), the victim must have apprehension of imminent physical contact or violence. Apprehension is very abstract according to an English case R v Ireland, R v Burstow[1997] 4 All ER 225, even phoning the victim and making strange sounds (of course there must be sufficient indecency) or remaining silent that causes psychiatric illness on the victim may amount to assault because court ruled a thing said is a thing done. However, it could not be assault, not to mention indecent assault, if the victim doesn’t know her half nude body was being photographed by a camera. It would be otherwise if there is real body contact. If there is body contact with the victim, Gillian in our case, it would still amount to indecent assault even if she is asleep.

偷拍更不等於遊蕩

That’s why in HK, people who are caught with using pin-hole camera with the intent of taking indecent pictures in public place like shopping mall will only be prosecuted with breach of peace which is only a common law sanction, instead of indecent assault. Because how would a girl be aware of someone using a pin-hole camera to shoot pictures at her buttocks or puberty, however grossly indecent they are. Some guy may suggest the charge of loitering. Because of the enactment of the Bill of Rights Ordinance in 1991, loitering alone is not an offence, unless someone loiters in public place with intent to commit an arrestable offence, there is no offence of loitering. If a man is found loitering inside a female toilet, then he may be charged of loitering.

你的私處,不一定算是你的私隱 (personal data)

Since Gillian can have no recourse to our criminal law, some people may suggest she may take civil action against the magazine and the unscrupulous Jimmy Lai may be held responsible by means of vicarious liability. The first thing crossing the mind of everyone would be whether there is an infringement of personal data privacy. The first question to ask is whether Gillian’s picture is a personal data. According to Hong Kong Court of Appeal in the case of Eastern News Group v Commissioner of Personal Data Privacy HKCA (2000), only information or material that enable a third party to recognize the data owner would be regarded as personal data. In this case, a lady was photographed by the Eastern Magazine and under her picture, the reporter commented her hairstyle in a very mean manner, calling it a “Japanese Mushroom head”. The Court of Appeal said only by the picture itself, nobody is able to recognize this lady except her closest friends and family. The majority public would not know who she is even by looking at the picture itself and the harsh remarks on her hairstyle, so that could not be personal data and not protectable. The situation is akin to pictures on the newspaper or news report on TV, many pedestrians are photographed or shot by the reporters. But they could not argue their personal data privacy have been violated since nobody would recognize who they are. And if the above examples are seen as breach to the ordinance, then the freedom of press as well as the circulation of news would be greatly hindered. And The Court further explained that in the case of a public figure, it would be more difficult to establish their personal data in the form of photograph as they are already celebrities. The case would have been otherwise if Gillian’s body figures like the size of her bra, her waist etc are disclosed, and through which people could identify her. In our present case, the picture of her body is not personal data.

告他性騷擾,行嗎?

When the Personal Data Privacy Ordinance (PDPO) Cap 486 could not enable the victim to bring any cause of action, neither could she sue Jimmy Lai and the Easy Finder Magazine for sexual harassment by virtue of the Sex Discrimination Ordinance (SDO) Cap 480. It is because it is only in 3 prescribed circumstances that there is cause of action on sexual harassment. Either it happens in an ordinary course of employment relationship (boss sexually harasses his employee or vice versa), education sphere or in the course of providing goods and services (like a 70 years old man sexually harasses a young waitress in a Chinese restaurant by saying “I dreamt of having sex with you last night sweetie”, the waitress would then have cause of action against the old man), other than these three prescribed circumstances, no action on sexual harassment could be brought under this ordinance. It is therefore so patent that Gillian is not going to succeed on any claim by reliance on the PDPO or SDO.

告誹謗?係咪未讀過Law?

Earlier it has been suggested by a practicing solicitor whose name I would not mention, saying that Gillian may bring an action on defamation. I really can’t help laughing out because I rather doubt this solicitor’s professional qualification. For an action of defamation, the plaintiff, Gillian in this case, must prove that there has been a defamatory statement referred to her and that this defamatory statement has been published. While a cartoon drawn may be defamatory by means of innuendo (statement alone is not defamatory but in light of the facts and circumstances known to the parties for whom the statement is published, it becomes defamatory), a photograph itself is hardly a defamatory statement. First of all, it is a photograph instead of a statement that has been published. Secondly, this photograph would not result in Gillian being shunned and avoided (being the classical definition in Clark & Lindsel on Tort) by the public, in fact she has earned more sympathy from the public than ever throughout her career as a singer. Thirdly, the photograph itself does not undermine her reputation as a pop singer. So there is no case on defamation and I strongly recommend the solicitor who makes such an absurd suggestion should go back to Law School and study his LLB again.

心靈受傷,不易索償

It has recently been reported that Gillian has suffered nervous shock as a result of this report and perhaps she may want to claim damages against Jimmy Lai as the principal of the Easy Finder on the ground of nervous shock. As far as I know, nervous shock is a category in the Law of Negligence which is an eminent part of the Tort Law. When we talk about negligence, it means the defendant does not intend to do the act in question but owing to his negligence or omission, a wrong is done as a result and having a proximity with the plaintiff, like a medical surgeon and his patient, a lawyer and his client, a surveyor and his client or even a bus-driver and his passengers etc, he could foresee as a reasonable man (reasonable man on the omnibus as described by Lord Akin in Donoghue v Stevenson {1932}AC 562) that the plaintiff would be in jeopardy. But in the present case, the photograph was taken intentionally, so I could not see how the Law of Negligence steps in. Besides nervous shock as explained in the English case law, provides that mere emotional grief or upset is not nervous shock. Unless the emotional grief is accompanied by personal injury, no action on nervous shock could be brought. The English House of Lords found in Page v Smith [1995] 1 AC 155 that “shock by itself is not a subject of compensation … it is only shock is followed by recognizable psychiatric illness that there can be a claim on nervous shock.” So in my opinion, any claim for damages on the ground of nervous shock is as hopeless as the claim on defamation.

6 留言:

匿名 說...

I didn't have any LLB traning and I am just curious ...

The very first paragraph of PDPO says :

An Ordinance to protect the privacy of individuals in relation to personal data, and to provide for matters incidental thereto or connected therewith.

It then proceeds in the Interpretation section to define :

"personal data" means any data —
(a) relating directly or indirectly to a living individual;
(b) from which it is practicable for the identity of the individual to be directly or indirectly ascertained; and
(c) in a form in which access to or processing of the data is
practicable

From the above, I think I can argue that the nature of Gillian's picture is very much different from the “Japanese Mushroom head” picture you cited in your post ... well, unlike the subject who has the “Japanese Mushroom head”, most people in HK can ascertain the picture is of Gillian ...

So, I'd say Gillian's case should still fall within the scope of PDPO, that the picture indeed amounts to Gillian's personal data ... correct ???

You did say that "The Court further explained that in the case of a public figure, it would be more difficult to establish their personal data in the form of photograph as they are already celebrities." ... not having read the actual verdict, I don't think I can comment on this but it does seem to me that if the Court is of such opinion, it is a prejudice against, or at least it is being unfair towards, celebrities ... as a matter of fact, I'd say the spirit of the PDPO is to protect the right to privacy of living individuals and living celebrities are certainly living individuals ...

Cliff

匿名 說...

one more note ...

i did check the section on Offences of PDPO but it is so difficult to interpret that section ... (don't understand why it mentions Commissioner so many times in the section -- seems to me that the PDPO is more about Commissioner than ordinary citizens :) ...)

on the other hand, i was wondering if i can resort to schedule 1 -- data protection principles to demonstrate that the collection, and the subsequent use of the picture, contravene PDPO ...

care to comment on this :) ???

thanks ...

Cliff

davidbarlaw 說...

Response to Cliff's query.

In response to Cliff's question, I think my supplementary notes have answered part of your question. At the initial stage when I wrote the first commetn, I did not have the benefit of revising myself with the judgment that I had read more than 5 years ago when I was at school.

The position as clarified in my supplementary note is the court is only interested in protecting personal data's if they are collected in an unfair manner. By doing so it would contravene with the law, as it is in the present case of Gillian Chung. But if is collected fairly, not by illegal method, it could hardly be argue that the law is broken since the Personal Data (Provacy) Ordinanace is only interested in protecting person data but not personal privacy, freedom from being intervened by reporters etc. Because the law should not be used to inhibit freedom of press.

Concerning the question of Commissioner, I don't quite get what you think, but perhasp I shall clarify in this way. Whenever any person is angry about his personal Data is being misuesed or collected illegally, he shall report his case to the Commissioner for Personal Data. And if he is satisfied there is a breach to the ordinanace, he shall lodge a complaint as well as civil action against the wrongdoing party. As in this case of Gillian Chung, it seems she did not make an complaint to the Commissioner or it is in fact that the present problem is outside the jurisdiction of the PDPO, that explains why she instructed the silk (Senior Counsel) Jason Pao to bring action. Same theory applies to cases of sexual discrimination. If a person is being discriminated owing to his gender, he shall report to the Commissioner for Equal Opportunitiies, and if the problem could not be resolved by dispute resolution, then the Commissioner will bring an action for the displeased party.

The main reason behind I guess is, ordinary people could hardly afford the legal expense for instructing solicitors and barristers, so it would be for the government to play the role of plaintiff. As all these local legislation are promogated after the HK government being the signatory of certain International Covenants like the ICCPR (International Convenant of Civil and Political Rights), she is obliged as well as dutibound to defend local people against discrimination, disclosure of data etc.

Hope my very limited knowledge on this area could answer your query.

匿名 說...

David,

Thanks so much for taking the extra time to answer my query ...

As I said before, I didn't have any LLB training, so when you first introduced me to PDPO, I was surprised by its name -- it concerns about personal DATA privacy, but not personal privacy ... then, when I read on -- I must admit that I only gave it a very quick read -- I was surprised again to see why the word Commissioner is mentioned so often in the ordinance, like it only concerns about him, but not the general public ...

Now after your elaboration on the legal concepts / principles beind this ordinance, I have better understanding on this law ... thanks ...

In the end, I'd still think that Easy Finder's taking of Gillian's pictures and their subsequent publication of them are in violation of the Schedule 1 - Data Protection Principles of the ordinance ... I don't quite understand why she didn't bring her case against Easy Finder along this line but (hehe) I am not as interested in her action as I am in the legal principles of this case ... (I know I am bad in this regard but I am living miles away from HK in Canada and I don't quite understand how the entertainment industry works in HK ...)

Last but not least, let me say one more time : THANK YOU, to you David, and to 倉海君 for creating this blog ... one suggestion though : can the blog also display the date of the comment ??? ... right now it only shows the time stamp but I think it is better to show the date too ...

Cliff

匿名 說...

David,

Bravo! You have written a very good blog explaining from a legal view point what the actress can do.
In fact nearly all blogs and comments are made from an ethical viewpoint, very few explain in detail what the the legal remedies are available to her.

Recently I came across a piece of news that relates to an old lady ( over 70) who was prosecuted for soliciting for an immoral purpose. The old lady was arrested in a guesthouse in Shamshuipo and inside her purse the police found a bottle of lubricant. Police suspected that she was a prostitute and she was arrested and charged with the crime of soliciting for an immoral purpose.(forget about exact details)

Grateful if you can explain:
1. Prostitution is not illegal in Hong Kong, but why did police arrest her?
2. How can police prove that she is soliciting for an immoral purpose without the man giving evidence against this poor old lady?
2. Police uses undercover police woman to dress as prostitute and loiter in the streets and then arrest any man that come forward and ask the undercover police woman "what is the price"
or " do you go" etc. Is this kind of "trap " a propoer legal procedure for the police?
Does simply asking the price constitutes soliciting for an immoral purpose?

Many thanks.

Zeke 說...

此絕密照片是從 A 小姐得來的 ......

Alison Jackson 小姐。