As is often the case in these speed driven times technology and its concomitant propensity to nurture novel criminal activity are a long way ahead of the law and a law specific catchup is necessary with particular reference to the now full worldwide population addiction to social media transmission and the possession of the mobile phone with camera functions.
The Law Reform Commission reviewed substantive non-consensual sexually related offences in Hong Kong and on the 30th April 2019 published the "Report on Voyeurism and Non-Consensual Upskirt-Photography" ("the 30/4/2019 Report") which defined "Voyeurism" as "an act of non-consensual observation or visual recording (for example of a photograph, video tape, or digital image) of another person for a sexual purpose" and recommended taking action to create as criminal offences both Voyeurism and non-consensual upskirt-photography taking also into account the commission of a separate offence per se irrespective of the purpose of the conduct and that such offences be established in any place where the offence took place.
These actions are not currently classifiable or legislated as specific offences in Hong Kong and so prosecution resort was customarily made to somewhat tenuous offences of "loitering in a public place or outraging public decency. In a further ingenious if somewhat stretched application under Section 161 of the Crimes Ordinance prosecution was launched against these actions by establishing the crime of "access to a computer with criminal or dishonest intent". Many of the prosecutions under this head of criminal behaviour related principally to upskirt photography (including still and video recordings) using mobile phones in both public and private places which had become increasingly popular activity alongside escalators and in crowded public transport trains and buses and were also extended to the uploading of intimate images without consent.
So far so good, and although far from adequately enabling prosecution in all such circumstances the courts handed down convictions under this charge between 2015 and 2018 until in April 2019 the Court of Final Appeal laid down in a judgment that the Crimes Ordinance offence of "obtaining access to a computer with a view to dishonest gain for himself or another" does not contemplate or extend to the use by the offender's own computer or device and not involving access to the computer of another person such that the Crimes Ordinance offence does not apply to the use only by a person of his own computer nor in consistent interpretation to comprehend the extended application to "intent to commit an offence", to "with a dishonest intent to deceive" and to "with a dishonest intent to cause loss to another" all of which in consequence of the Court of Final Appeal judgment were placed beyond the reach of the criminal law.
This Court of Final Appeal judgment rendered inappropriate the charges by prosecution against upskirt photography and the distribution of intimate images without consent if the act involved only the use of the perpetrating suspect's own computer or device.
In the case of mobile phones in particular this entire upskirt photography activity became free of criminal conviction potential and instances of this activity became commonplace.
Obviously this huge lacuna required to be filled effectively and in a Consultation Paper published by the Hong Kong Government on the 8th July 2020 and based on the 30/4/2019 Report a proposal was included to introduce new criminal offences of :-
- voyeurism (observing or recording of intimate acts exposing intimate parts for the purpose of obtaining sexual gratification);
- of non-consensual video or still photography of intimate parts wherever committed and whether or not for the purpose of obtaining sexual gratification;
- in relation to voyeurism a specific crime of intimate prying i.e. observing or recording of intimate acts irrespective of the purpose as a statutory alternative to the offence of voyeurism per se;
- the distribution of photos or videos originated from acts of voyeurism or from non-consensual intimate part photography; and
- the coverage also of non-consensual distribution of intimate photos or videos in circumstances where consent to them was previously given but had been since withdrawn - what became labelled as "revenge porn".
The Government in drawing up a legislative proposal bore a number of basic principles in mind but with particular reference to adherence to the human rights laws and practices guaranteed under the Basic Law for Hong Kong.
On 8th January 2021 the Government published its report ("the 8/1/2021 Report") on the results of the Consultation Paper and proposed the introduction of the new criminal offences set out above.
The 8/1/2021 Report stated the total of 201 written submissions received by the Security Bureau whether by mail, facsimile or email from private citizens and also from a number of bodies such as the Law Society, the Bar Association, the Equal Opportunities Commission and the Privacy Commissioner for Personal Data all of which can be summarized as confirming the need for action and confirming maximum penalty proposed in the 30/4/2019 Report for the offences of voyeurism and intimate prying as imprisonment for 5 years and 3 years respectively.
The Government will finalise these legislation proposals and plans to submit a Crimes Ordinance Amendment Bill in the 2020-2021 Legislative Session.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.