Possession and Advertisement of Obscene Films in Singapore

Possession and Advertisement of Obscene Films in Singapore

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 common example of such obscene films is pornographic films 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.

The Offense of Possessing Obscene Films

The Films Act makes it unlawful in Singapore to maintain, possess, or download pornographic films. This is true whether or not the pornographic film is physical or digital, and even if the material was intended for personal consumption. Under Section 30(1) of the Films Act, anybody discovered in possession of pornographic films can be fined up to $20,000 and/or imprisoned for up to 6 months. If they are found to have known or had reasonable grounds to suspect, that the film in their possession was obscene, the penalties are increased.

If it is discovered that someone knew or had reasonable grounds to suspect that the video in their possession was obscene, the maximum penalties are doubled for first-time offenders and even quadrupled for repeat offenders.

This is mentioned under section 30(2) of the Films Act.

First-time offenders may be fined up to $40,000 and/or imprisoned for up to 12 months, while repeat offenders may be fined up to $80,000 and/or imprisoned for up to 2 years. In general, if someone is caught in possession of obscene videos for personal use rather than public distribution, the courts may opt to punish them with a fine rather than imprison them.

Explanation of Advertisement

Section 2 of the Films Act also explains what constitutes an advertisement for a film. It states that:

a) Any written words or words in an audible message, or
b) Any visual image or representation including still picture, sign, symbol, or
c) Any combination of two or more things mentioned above,

If used to publicize the film or promote the distribution or public exhibition of the film, directly or indirectly, will constitute an advertisement for the film.

Section 2(1)(b) provides for what does not constitute an advertisement.

1) Any price list or catalog about films.
2) A trailer of a film.
3) An advertisement in a book, newspaper, periodical, or magazine about any film.
4) A website advertisement for any film.
5) An advertisement that is broadcasted about a film.
6) An advertisement on apparel or item of clothing about a film.
7) Any person’s opinion communicated by an individual to the public or a section of the public about any film for no commercial gain.

The Offense of Advertising Obscene Films

The offense of advertising obscene films is mentioned under section 31 of the Films Act 1981. There are two distinct offenses mentioned in this section.

1) If for or with the intent to distribute or exhibit any obscene film to another, a person advertises such film by any means, he will be liable under the offense mentioned under subsection (1) of section 31.
2) If for or with the intent to distribute or exhibit any obscene film to another, a person, who has the knowledge or has reasonable cause to believe that such a film is obscene, advertises such film by any means, he will be liable under the offense mentioned under subsection (2) of section 31.

Thus, the difference between the two subsections is having the knowledge or reasonable cause to believe that such films, which they intend to distribute or exhibit, are obscene films.

Advertisement Concerning Obscene Films

Section 31(3) specifically mentions what is included in advertisements concerning such films.

a) Publicly displaying, exhibiting, or supplying any advertising poster concerning the film.
b) Announcing orally or by any means other than by broadcasting any offer to supply or sell the film. This includes electronic transmission, fax transmission, electronic mail, or other means of communication of similar nature.
c) Circulating or distributing any advertisement relating to the film.

Unlike the general explanation of advertisement under section 2, this section specifically mentions that advertising poster, circular, price list, or catalog falls under the means of advertisement.

It also defines what an advertising poster includes. Such poster can include any poster, video slick, placard, photograph, or other pictorial matter intended for use in advertisement or exhibition of a film to the public. A miniature representation or enlarged representation of the whole or part of any such poster is also included.

Public display of the advertisement is when such advertisement is displayed or visible from

a) Any public road
b) Any place that the public has or is permitted to have access to. Such access can be on payment or otherwise.

Punishments for Advertising Obscene Films

1) Punishment without the knowledge or reasonable cause to believe

Under subsection (1) of section 31, if a person advertises obscene films by any means to exhibit or distribute such films, they would be punished with imprisonment for a period of up to 6 months, a fine of up to $5,000, or either.

2) Punishment with the knowledge or reasonable cause to believe

Under subsection (2) of section 31, if a person advertises obscene films by any means to exhibit or distribute such films, having the knowledge or reasonable cause to believe that the film is obscene, they would be punished with imprisonment for a period of up to 12 months, a fine of up to $50,000 or either. For a repeated offense, the person would be punished with imprisonment for a period of up to 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 causes 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) Personal Consumption: The use of food, clothing and footwear, cultural and domestic goods, household items, housing, and other consumer goods in material form and in the form of personal services, to satisfy one’s needs.
6) Exhibition: Exhibition means broadcast, transmission, distribution, communication to the public.
7) 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 Possessing and Advertising Obscene Films

1) Public Prosecutor v Chong Hou En [2015] 3 SLR 222; [2015] SGHC 69

The respondent, a 29-year-old man, went to Jurong East Street’s IMM shopping mall to record “Up Skirt” footage. His PC and hard disc had thousands of videos. Further examination of his computer equipment showed recordings of ladies bathing in the house of his girlfriend’s parents. After pleading guilty to five charges of insulting a woman’s modesty by infringing upon her privacy under section 509 of the Penal Code concerning the victim at IMM shopping mall and the four victims at his girlfriend’s parents’ house, the respondent was prosecuted and convicted. He was additionally charged with and found guilty of one count of possessing 10,574 obscene films under the Films Act’s section 30(1). The district court gave the medical testimony that the accused was suffering from voyeurism a lot of weight, and sentenced the respondent to 30 months of split probation with specified conditions. The prosecution filed an appeal against the Judge’s sentence, claiming that it was insufficient. The court approved the prosecution’s appeal against the sentence after evaluating the evidence. The district judge’s probation sentence was found to be insufficient by the court. The court replaced the probationary period with a 16-week sentence of imprisonment.

2) Public Prosecutor v Michael Frank Hartung [2020] SGDC 163

Michael Frank Hartung, a 49-year-old man, pled guilty to two counts of violating section 30(1) of the Films Act. The Accused accepted the inclusion of two additional offenses under section 21(1)(a) of the Films Act in the sentencing process. The Accused was given a total term of 12 weeks in jail by the court. This 12-week sentence was ordered to begin after the Accused’s 66-month sentence for two offenses under section 376D(1)(c) of the Penal Code, which he was serving at the time. The Accused filed an appeal against the sentence because he was displeased with it. The extra 12 weeks of imprisonment imposed on the Accused was a fraction of the 66 months ordered for the section 376D(1)(c) Penal Code offenses, according to the court, and was essential to represent the seriousness of the current set of offenses as well as the Accused’s cumulative criminality. As a result, to fulfill the goals of justice, the judge ruled that the 12 weeks of imprisonment begin when the Accused’s existing sentence expires. This would prevent the Accused from successfully evading punishment for his violations under the Films Act if the court ordered that the sentence begin concurrently with the imprisonment term he was presently serving.

3) Public Prosecutor v Chan Chun Hong [2015] SGDC 125

The offender pled guilty to 12 offenses, including possession of obscene films under Section 30(1) of the Films Act. There were additional email exchanges between the male Singaporean and other users that showed the Accused person had engaged in Child Sex Tourism in countries such as Indonesia, Cambodia, and the Philippines to sexually exploit young children, according to the information. The Accused was given a total term of 56 months in jail and an $8000 fine. In opposition to his punishment, he filed a notice of appeal. The court agreed with the prosecution’s arguments that the offenses were unique, had distinct elements, and were entire crimes in and of themselves. It went on to say that, even if these crimes were considered to be part of a single transaction, an order for consecutive sentences would still be justified, considering the nature of the crimes and the need for deterrence in preventing similar behavior. Therefore, in conclusion, the 36-month and 20-month prison sentences were ordered to run consecutively.

4) Public Prosecutor v Goh Da Wei and Another and Another Case [2003] SGMC 21

In this case, two individuals for arrested for multiple charges under the Films Act for possessing, reproducing, advertising, and distributing obscene films. Goh and Chin were convicted based on their respective offenses after they grasped the nature and consequences of their plea and acknowledged without qualification to their respective statements of facts. According to the allegations against Goh, he had 25 obscene videos in his possession for distribution and had reproduced 70 indecent films. He had reason to suspect that all of these movies were indecent. He claimed to be in charge of copying films from VCDs at his home using his CD reader and writer drives, whilst Chin would advertise and seek consumers in IRC and receive orders. Goh and Chin also acknowledged six offenses between them and agreed to have them considered in sentencing. One accusation against Chin was for advertising obscene films for the sake of distribution while having reasonable cause to suspect the films were obscene, a violation punishable under Section 31(2)(a) of the Films Act. The court sentenced them to 6 months imprisonment.