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General Overview
Obscene is generally a word that is used to explain morally offensive things that are sexual. Films that are indecent and offensive to morality are generally termed obscene films. One aggravated form of such obscene films is pornographic recordings or videos. Although streaming or watching pornographic films online is not illegal in Singapore, keeping, possessing, and downloading such films are. Distribution and advertisement of such films are also illegal in Singapore and are punishable under the Films Act, 1981.
Obscene Films under Singapore Law
The definition of the word “obscene” concerning films is provided under section 2 of the Films Act 1981. The definition states that obscene films are such films that cause any person, who watches or hears the films, to become corrupt or immoral. The definition also includes films comprising two or more distinct parts or items. The effect of any such parts or items, taken as a whole, must tend to corrupt or make the person immoral after watching or hearing it.
Section 2 also defines the word “film”. Under the Films Act 1981, a film includes:
a) Video recording
b) Video game
c) Cinematograph film
d) Any other recording from which a moving visual image can be produced and viewed. This includes computer-generated images as well.
Offenses Involving Dealings in Obscene Films
Section 29 of the Films Act 1981 deals with offenses involving dealings in obscene films. The section is divided into four parts, classifying four distinct offenses involving dealings in obscene films. It includes the reproduction of such films, importation of such films, distribution of such films, and exhibition of such films. The penalties for the offenses are also mentioned in this section and are different from one another. The offenses are explained below.
Making or Reproducing any Obscene Film
Section 29(1) provides for the offense of making or reproducing an obscene film. It states that a person is said to have committed the offense under section 29(1) of the Films Act 1981, if such person makes or reproduces any obscene film, having known or having reasonable cause to believe that such film was obscene. The purpose of the offender is insignificant under this section. Thus, for example, even if the offender did not have a purpose for the distribution of such film, he will be held liable under this section if the two main elements are satisfied. The elements are:
1) Makes or reproduces any obscene film.
2) Knew or had reasonable cause to believe that such film was obscene.
Importation of any Obscene Film
The offense of importation of any obscene film is mentioned under section 29(2) of the Films Act 1981. Similar to subsection (1), the purpose for importation is irrelevant to constitute an offense under this section. Section 29(2) states that a person is said to have committed the offense of importation of any obscene film if such person imports any obscene film, having known or having reasonable cause to believe that such film was obscene. Thus, the two elements of this offense are:
1) Imports any obscene film.
2) Knew or had reasonable cause to believe that such film was obscene.
Distribution of Obscene Films
Distribution of any obscene film is categorized as an offense under section 29(3) of the Films Act 1981. It states that a person is said to have committed the offense under section 29(3) of the Films Act if such person distributes any obscene film to another, having known or having reasonable cause to believe that such film was obscene or such person has such obscene film in his or her possession to distribute to another having knowledge or reasonable cause to believe such film to be obscene. Thus, a person can be held liable under this section even without committing the act of distribution. The purpose of possession is taken into account under this section. The elements of this offense consist of:
1) Distributes or possesses any obscene film for distribution to another.
2) Knew or had reasonable cause to believe that such film was obscene.
Exhibition of Obscene Films
Exhibiting an obscene film is also categorized as an offense under section 29 of the Films Act 1981. It is specifically mentioned under section 29(4) of the Films Act and states that a person is said to have committed the offense under this section if such person exhibits any obscene film or has in their possession an obscene film for exhibition, having known or having reasonable cause to believe that such film was obscene. Thus, similar to the offense of distribution of obscene films, the commission of the act of exhibition is not required for the offender to be held liable under this section. The elements of this offense are:
1) Exhibits or possesses any obscene film for exhibition to another.
2) Knew or had reasonable cause to believe that such film was obscene.
Punishments for Offenses Involving Dealings in Obscene Films
a) Making or Reproducing any Obscene Film
Section 29(1)(a) provides for the punishment for making or reproducing obscene films. The punishment for this offense is imprisonment for a period of up to 2 years, fine of up to $40,000, or either. This is for first-time offenders.
Section 29(1)(b) provides for the punishment for second-time or repeat offenders. The punishment is imprisonment for a period of up to 2 years, a fine of up to $100,000, or either.
b) Importation of any Obscene Film
The punishment for the importation of any obscene film is mentioned under section 29(2)(a) for first-time offenders. Its states that the punishment for the offense would be imprisonment for a period of up to 12 months, a fine of up to $40,000, or either.
Section 29(2)(b) provides for the punishment for second-time or repeat offenders of importation of obscene films. It states that the punishment is imprisonment for a period of up to 2 years, a fine of up to $100,000, or either.
c) Distribution of Obscene Films
Section 29(3)(a) and section 29(3)(b) provide for the punishment for distribution of obscene films for first-time offenders and repeat offenders respectively. The punishment for first-time offenders is imprisonment for a period of up to 2 years, a fine of up to $80,000, or either.
For second-time or repeat offenders, the punishment for distribution of obscene films is imprisonment for a period of up to 2 years, a fine of up to $100,000, or either.
d) Exhibition of Obscene Films
The punishment for the exhibition of obscene films is provided for in section 29(4)(a) of the Films Act 1981. It states that the punishment for exhibiting obscene film to another is imprisonment for a period of up to 2 years or a fine of up to $40,000. This is for first-time offenders.
For second-time or repeat offenders, the punishment is provided in section 29(4)(b). The punishment is imprisonment for a period of up 2 years, a fine of up to $100,000, or either.
Glossary
1) Morally Offensive: Something that is offensive upsets or embarrasses people because it is rude or insulting.
2) Obscene Films: Obscene films are such films that cause a person, who watches or hears the films, to become corrupt or immoral.
3) Immorality: Immorality means conduct that is inconsistent with the standards of public conscience and good morals. It is conduct that brings the individual concerned or the education profession into public disgrace or disrespect and impairs the individual’s service in the community.
4) Reasonable Cause to Believe: Reasonable cause to believe means, in light of all the surrounding facts and circumstances which are known, a reasonable person would believe, under those facts and circumstances, that an act, transaction, event, situation or condition exists, is occurring or has occurred.
5) Exhibition: Exhibition means broadcast, transmission, distribution, communication to the public.
6) Element of an Offence: An element of an offence is a set of facts that must all be proven to convict a defendant of a crime.
Cases Concerning Offenses Involving Dealings in Obscene Films
1) Public Prosecutor v Colin Teo Han Jern [2017] SGMC 74
In toilet cubicles, the accused secretly recorded and photographed other males urinating, defecating, masturbating, and engaging in anal intercourse. In total, 33 guys were recorded in 32 incidences. For the movies he made, he pled guilty to charges of creating and having obscene films under the Films Act, as well as public nuisance offenses under the Penal Code for the images he took. The prosecution requested a total sentence of 24 weeks in jail, based on what the accused would have received if he had offended a woman’s modesty under section 509 of the Penal Code. The Judge rejected to make this comparison because Parliament had not deemed it appropriate to make insulting a man’s modesty an offense. He ordered a 10-week global jail sentence based on the relevant sentencing precedents and circumstances. This decision was challenged in court by the prosecution. After going through the circumstances of the case, the court concluded that the 10-week sentence was fair and appropriate.
2) Public Prosecutor v Ch’ng Kean Seng [2012] SGDC 224
In this case, the accused was charged with several charges for distributing films without valid certificates and for possessing obscene films for distribution under section 29(3)(a) of the Films Act. The accused pled guilty to nine offenses overall. He acknowledged 11 additional comparable crimes under the Films Act and agreed to have them taken into account (“TIC”) for sentencing purposes. The prosecution requested that the court impose a global term of 7 years in jail and a $240,000 fine since this was one of the most serious crimes under the Films Act and Copyright Act. The defendants, on the other hand, pleaded for a maximum sentence of 24 months in jail. The defendant further informed the court that he would be unable to pay any fines that were issued. The court concluded that as the culpability of the accused was much greater, the sentences imposed on the accused must accordingly reflect the significant differences in culpabilities. The court ordered the imprisonment sentences for three distinct offenses to run consecutively. The total sentence imposed was thus 5 years and 12 months’ imprisonment.
3) Public Prosecutor v Er Sok Tin [2009] SGDC 22
On January 16, 2009, the accused filed an appeal against his sentence. One of the allegations was that he had seven hundred and fourteen pornographic videos in his possession for the intention of distribution. This was a crime punishable by a fine of not less than $2,000 for each such picture distributed (but not more than $80,000 in total) or imprisonment for not more than two years, or both, under Section 29(3) of the Films Act read with Section 109 of the Penal Code. The court set bail for the accused at $20,000 with one surety, allowing her to begin serving her 12-month sentence on February 2, 2009. Her defense attorney filed a notice of appeal against the sentence on January 16, 2009. As the accused had been sentenced as a first-time offender based on the respective normal sentencing tariffs under section 29(3) of the Films Act and section 292(a) of the Penal Code, the total of 12 months’ imprisonment imposed on the accused was not manifestly excessive or disproportionate, as according to the court, in the light of her role as an abettor and the scale and mode of operation of the illegal DVD/VCD business.
4) Public Prosecutor v Yang-May Fang alias Tiana alias Liana [2006] SGDC 251
During a patrol in the area of Pitt Street, the arresting officer came across the accused. She was caught selling VCDs containing pornographic inlays for $5 apiece. When the arresting officer’s partner pretended to be a client and inquired about the pricing of the VCD, the accused replied in Mandarin that it cost $5 per VCD. The accused was then taken into custody. A total of 174 VCDs containing 174 inlays were also recovered from the accused’s possession. The Board of Film Censors examined the seized films and discovered 174 obscene films with 174 obscene inlays. Because the inlays featured indecent imagery, the accused had reasonable grounds to suspect the films were obscene. She acknowledged that she had the videos in her hands to distribute them. The accused was charged with 4 offenses including one under section 29(3)(a) of the Films Act. She was given 23 months of imprisonment in total for all the 4 charges against her.
