SEXUAL OFFENCES

I. Non-consensual sexual offences

These offences are intended to protect a person’s sexual autonomy. A person should have the right to choose freely whether to participate in any sexual conduct or activity.

A. Indecent assault

Indecent assault is an offence contrary to section 122 of the Crimes Ordinance (Cap. 200). The maximum punishment is 10 years’ imprisonment.

An indecent assault is an assault coupled with circumstances of indecency. Some conducts are clearly inherently indecent e.g. the touching of genitals without other’s consent. However, it may not always be a clear-cut case for other conducts such as the touching of buttocks or kissing. In such cases, the relationship between the defendant and the victim and the background and the circumstances leading to the conduct may need to be considered as a whole. The prosecution must prove that the: (1) defendant intentionally assaulted the victim; (2) assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; and (3) defendant intended to commit an assault as is referred to in (2) above.

A defendant in an indecent assault case may use the other party’s “consent” as a defence, but a person under the age of 16 cannot legally consent to an act that constitutes an indecent assault. “Consent” has to be obtained in good faith and with the victim’s knowledge; if consent is obtained by fraud or deception, it is not obtained in good faith and with the victim’s knowledge. Whether or not the victim has genuinely consented involves a judgment of fact and depends on the circumstances of each case.

1. On an overcrowded MTR train, another person's private parts touched my body. Would that be considered as an indecent assault?

It depends on whether the touching was intentional or accidental. If it was intentional and without your consent, it would have been considered as an assault. A reasonable person would likely consider the touching of another's body by one’s private parts to be an act of indecency. If the touching was accidental and contact would have been inevitable due to an overcrowding situation, no assault would have been committed. We are all treated as consenting to the inevitable personal contact arising from daily life. However, if the overcrowding was used as an opportunity to commit an assault, it would be considered an indecent assault.

The court will examine all the evidence provided by both parties, including any explanation of the incident given by the defendant (if he chooses to provide one), whether at the time or subsequently, and the circumstances in which the alleged contact occurred. It will then decide whether the alleged contact was accidental or deliberate.

2. Can a woman commit indecent assault?

Yes, a woman can commit indecent assault upon another male or another female. Section 122 of the Crimes Ordinance uses the word “person”. Therefore, Indecent assault is not gender specific.

3. Can a man indecently assault his wife?

Yes. If the wife does not consent to the particular sexual contact, indecent assault could arise. The question is whether the wife consented to the action. If not, whether such act was indecent after considering all circumstances of the case. Even if the wife did not consent, the husband may still have a defence if he genuinely but mistakenly believed that his wife consented to the action.

4. What if consent is obtained by fraud or deception?

If the victim was deceived about the nature of the act and/or as to the nature of the person doing the act, the consent is not a true consent to the activity.

An example would be where the defendant leads the victim to believe he will be demonstrating a first aid technique but in reality, a sexual assault is intended and takes place. The misrepresentation about the nature of the intended activity means that the victim does not give a true and informed consent to the activity which occurs. There is an indecent assault. Similarly, it would be an indecent assault if a person falsely claims to be a doctor and is allowed to carry out an intimate examination which would not have been allowed had the victim known the true situation.

B. Rape

1. Elements of the offence

Rape is committed by a man having non-consensual sexual intercourse with a woman. Section 118(3) of the Crimes Ordinance (Cap. 200) provides that a man commits rape if:

"(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and
(b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it."

The maximum penalty is life imprisonment.

In Hong Kong, rape can only be committed by a man upon a woman. A man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it and at the time of the act, he knows that she does not consent or is reckless as to whether she consents or not. A woman who helps or encourages a man to rape a woman may be charged with aiding and abetting rape.

Under the common law, it was conclusively presumed that a boy under 14 years of age is incapable of sexual intercourse. However, pursuant to section 118O of the Crimes Ordinance (Cap. 200), the presumption of law that a boy under the age of 14 is incapable of sexual intercourse, buggery or bestiality is now abolished. Therefore, a boy under 14 years of age but above 10 years’ of age (the age at which criminal liability commences) will be criminally liable for offences involving sexual intercourse.

For defendants between 10 years’ of age and 14 years’ of age, there is another legal doctrine called doli incapax, which requires the prosecution to prove beyond reasonable doubt that the defendant knew that what he was doing was seriously wrong as opposed to being merely naughty or mischievous.

A. Sexual Intercourse

To amount to rape, there must be penetration of the vagina by the penis. Hence, rape can only be committed by a male upon a female in Hong Kong. The slightest penetration is enough and the completion of intercourse by the ejaculation of semen is not required. Penetration is a question of fact in each case. Penile penetration of a part of the victim's body other than the vagina, such as the mouth or anus, does not amount to rape, nor does penetration of the vagina by an object or a part of the body other than a penis.

B. Consent

One of the elements of rape is the absence of consent by the victim to sexual intercourse. The prosecution must prove either that the defendant knew the victim did not consent or that he was reckless whether the victim consented or not. The word “unlawful” in section 118 of the Crimes Ordinance adds nothing to the contemporary definition of rape. Unlawful sexual intercourse occurs where the victim does not consent, the man either knows there is no consent or presses ahead regardless of whether there is consent or not. Unlawful sexual intercourse can include sexual intercourse between a man and his wife (marital rape).

I. Absence of consent

The prosecution must prove beyond reasonable doubt that there was no consent. The prosecution does not have to show that there has been resistance from the victim to proof that she did not provide consent. The victim might have been unconscious at the material time and hence, could not consent to the act of sexual intercourse. Consent must be distinguished from submission. A woman threatened with a knife might not resist sexual intercourse out of fear. In such a case, she would not have been willing or free to consent to the act of sexual intercourse.

Consent is absent where sexual intercourse is obtained by fraud or deception as to the nature of the act. For example, if a man deceives a girl that the act of intercourse is part of the necessary medical examination, there is no consent. However, if the deception relates not to the nature of the act of intercourse but to the objectives or reasons, consent may not be vitiated. For example, in a case in the Court of First Instance (HKSAR v Chow Kam-wah), the defendant procured sexual intercourse with a superstitious female victim by falsely representing that by having sexual intercourse with him the ghost following the victim would be exorcised. He was charged and convicted not of rape but of another offence of procuring a woman to do an unlawful sexual act by false pretences contrary to section 120(1) of the Crimes Ordinance.

II. Defendant is reckless as to whether the victim consented

A defendant is reckless as to whether the victim consented to sexual intercourse where he could not have cared less whether she consented or not. This is sometimes referred to as pressing ahead regardless of whether the victim consented or not. This is a question of fact for the jury in each case as rape trials are heard before a jury in the Court of First Instance.

III. Genuine belief in consent

As the definition of rape is sexual intercourse without consent, a man who has a genuine belief that the woman was consenting cannot be convicted of rape even if she did not consent. The genuine belief in consent means that the man did not intend to have sexual intercourse without consent. Similarly a genuine belief in consent means that he was not pressing ahead regardless of whether she consented or not. The question of fact for the jury would be whether there was a reasonable doubt that the defendant subjectively believed there was consent. If he genuinely had that belief, he must be acquitted even if the jury finds that, objectively, the belief was unreasonable. However, if the belief claimed was objectively unreasonable, it will be unlikely for the jury to find that there was an actual genuine belief, but the question for the jury would be whether the belief was held.

IV. Withdrawal of consent

A woman can withdraw her consent during intercourse. A man commits rape if he continues with sexual intercourse after the woman has told him to stop. Rape occurs once the defendant knows that consent is withdrawn but nonetheless continues the sexual intercourse.

2. Sentence

The sentence for each case will depend upon the facts. The courts have held the following (non-exhaustive) to be aggravating features: 

• Use of violence or weapon
• Acting not alone but with others
• Careful and premeditated planning for the rape
• Previous convictions for rape or other serious violent or sexual offences
• The victim is subject to further sexual indignities or perversions
• Repeated rapes
• Young victim
• Physical or mental harm to the victim
• The offender had broken into or gained access to the place where the victim is living
• Breach of trust
• Use of protection

3. Q&A

1. Is it true that sexual intercourse with a female under the age of 16 would be rape even if she consents to sexual intercourse?

No. A female under the age of 16 may factually consent to sexual intercourse. Such consent would mean that rape was not committed. However, she must have understood the nature of the act for the consent. In such case, consent may amount to a defence to a charge of rape.

Even if there is consent to sexual intercourse, the defendant could be convicted of another offence, namely unlawful sexual intercourse with a girl under 16 years of age contrary to section 124 of the Crimes Ordinance. The offence is punishable with a maximum of 5 years’ imprisonment. If the girl is under 13 years of age, section 123 of the Crimes Ordinance applies. The maximum penalty under section 123 is life imprisonment. Both section 123 and section 124 are offences of strict liability. Provided sexual intercourse is proved and, as a fact, the girl was at the time under 13 or 16 as the case may be, the defendant will be convicted irrespective of any belief that the girl in question was older than 13 or 16 as the case may be.

2. Is it rape if I have sexual intercourse with a woman who is asleep?

Rape is sexual intercourse with a woman without her consent. The accused must be shown to have known she was not consenting or to have been reckless whether she consented or not. As a fact a woman who is sleeping is not in a position to give consent. The sexual intercourse will be rape unless there is a genuine belief in consent. It is hard to see how a defence of genuine belief can succeed in such a situation where the female and the man are strangers to each other. At the very least a man who has sexual intercourse with a woman who is sleeping is reckless whether or not she consents to that sexual intercourse. 

3. What if either party was intoxicated at the time of the intercourse?

Self-induced intoxication whether by alcohol, drugs or a substance is no defence to a charge of rape. Rape is having sexual intercourse with a woman who does not consent. The man must know that she does not consent or is reckless whether she consents or not. A man who argues that because of self-induced intoxication he did not understand she was not consenting and accordingly went ahead, is at least reckless whether she consents or not. He cannot claim that he honestly believed she was consenting and at the same time claim that, because of his intoxication, he did not understand her protestations that she did not want sexual intercourse.

Where the victim was intoxicated, the first question would be whether she consented to the act of sexual intercourse. Her intoxication may mean that she was factually unable to consent. If absence of consent is proved, the next question would be whether the defendant genuinely believed that she was consenting. This is a question of fact dependant upon the circumstances of the case. A man who plies a woman with alcohol, drugs or substances as part of a plan to have sexual intercourse with her, commits rape as soon as the act of sexual intercourse occurs.

4. Can a husband rape his wife?

Yes. Section 117(1B) of the Crimes Ordinance makes clear that unlawful sexual intercourse does not exclude sexual intercourse that a man has with his wife. There must first of all be proof of the sexual intercourse giving rise to the allegation of rape and the absence of the wife's consent. The prosecution must then prove beyond reasonable doubt either that the husband knew that the wife was not consenting to the sexual intercourse or that he was reckless whether or not she consented. This will be a question of fact in each case. Simply because there has been consent to sexual intercourse previously does not inevitably mean that consent would have been given for any other times.

C. Buggery

Buggery occurs where there is penetration of the anus by the penis.

The act of buggery itself is not illegal in Hong Kong. A person who commits an act of buggery is not punishable unless he has committed buggery in a prohibited circumstance, e.g. without the consent of the other party or buggery committed with a girl under the age of 21 or a boy under the age of 16.

For homosexual sexual offences involving children, please refer to “Homosexual buggery with or by a man under 16”.

2. Assault With Intent to Commit Buggery

Assault with intent to commit buggery is an offence contrary to section 118B of the Crimes Ordinance (Cap. 200).

The maximum penalty is 10 years’ imprisonment.

An assault is any act by which a person intentionally or recklessly causes another person to apprehend immediate and personal violence. For example, aiming a blow at a person with a fist is an assault even if the blow misses.

Once assault is proved, the prosecutor has to show that the defendant has an additional intention to commit buggery with the victim in question. The intention to commit buggery must be present at the time the assault occurs.

“Buggery” in section 118B is not limited to homosexual buggery. It also consists of anal intercourse by a male with a female.

3. Homosexual Sexual Offences Held to Be Unconstitutional

Since the decisions in Leung TC William Roy v Secretary for Justice and in Yeung Chu Wing v Secretary for Justice, the Courts have ruled various homosexual offences as being unconstitutional. 

In the decision by the Court of Appeal in HKSAR v Yeung Ho Nam, the court noted that there needs to be a proper and effective review of the laws and policies that discriminate against same-sex relationships to reflect equality between heterosexual and homosexual relationships.

The Courts have held the following offences in the Crimes Ordinance (Cap. 200) to be unconstitutional due to their discriminatory nature:

1. Procuring others to commit homosexual buggery under section 118G;
2. Gross indecency with or by man under 16 under section 118H;
3. Gross indecency by man with man otherwise than in private under section 118J; and
4. Procuring gross indecency by man with man under section 118K.

D. Procuring an unlawful sexual act by threats or intimidation

It is an offence contrary to section 119 of the Crimes Ordinance (Cap. 200) to procure another person by threats or intimidation to do an unlawful sexual act.

The maximum penalty for this offence is imprisonment for 14 years.

An unlawful sexual act is defined as:

1. unlawful sexual intercourse;
2. buggery or an act of gross indecency with a person of the opposite sex with whom that person may not have lawful sexual intercourse; or
3. buggery or gross indecency with a person of the same sex.

The offence has no age requirement, nor is it gender specific. The threats or intimidation must bring about an unlawful sexual act. For example, threatening to tell others of previous sexual acts in order to have sexual intercourse or further sexual intercourse will breach section 119. Another example would be threatening to post nude photographs if further intercourse is not consented to. Further examples include people who cannot repay what has been borrowed and may be threatened or intimidated into performing sexual activity to settle the outstanding loan and interest. The borrower is literally forced into prostitution.

E. Voyeurism

Voyeurism often involves an act of non-consensual observation of another person or visual recording (such as photograph, videotape or digital image) of another person for a sexual purpose or pleasure.

Section 159AAB of the Crimes Ordinance (Cap. 200) introduced the offence of voyeurism to deal with peeping or clandestine photography in circumstances that give rise to a reasonable expectation of privacy. The offence came into effect on 8 October 2021.

Under section 159AAB, it is an offence to:-

1. surreptitiously observe or record

   • an individual where they can reasonably be expected to be nude, to reveal an intimate part, or to be doing an intimate act;

   • an intimate part of an individual, or an individual doing an intimate act, for the purpose of observing or recording any individual’s intimate part or intimate act; or

   • an individual for a sexual purpose.

2. in circumstances giving rising to a reasonable expectation of privacy for the individual being observed or recorded, and

3. disregard whether the person being observed or recorded consents to being observed or recorded.

The maximum penalty for this offence is 5 years' imprisonment.

Each case will depend upon its own facts though generally, a person will receive imprisonment for voyeurism offences.

1. Surreptitiously

In the context of the offence of voyeurism, “surreptitiously” would mean where a person observes or records the victim with the intent that the victim is not aware of what the person was doing.

This element is concerned with the person's intent at the time of the observation or recording, rather than the person's manner or conduct.

2. Intimate part and intimate act

The interpretation of 'intimate part' is defined under section 159AA of the Crimes Ordinance (Cap. 200) as an individual's genitals, buttocks, anal region or breasts (whether exposed or only covered with underwear), or an individual's underwear covering genitals, buttocks, anal region or breasts.

A person is doing an 'Intimate act' if the individual is using the toilet in a manner that an intimate part of the individual is likely to be revealed, or that the individual is doing a sexual act that is not of a kind ordinarily done in public.

3. Reasonable expectation of privacy

The Canadian Court in R v Jarvis [2019] 1 SCR 488 (SC, Canada) held that the entire context in which the act took place should be taken into account when considering what constitutes 'reasonable expectation of privacy'.  It proposed

the following non-exhaustive list of considerations:-

1. The location the subject individual was in;

2. The nature of the impugned conduct (whether it consisted of observation or recording);

3. The subject individual's awareness of or consent to potential observation or recording;

4. The manner in which the observation or recording was done;

5. The subject matter or content of the observation or recording;

6. Any rules, regulations or policies that governed the observations or recordings in question;

7. The relationship between the subject individual and the accused;

8. The purpose for which the observation or recording was done; and

9. The personal attributes of the subject individual, for example, whether the subject individual was a child or a young person may be relevant in certain contexts.

4. Sexual purpose

The interpretation of 'sexual purpose' in relation to a person under section 159AA of the Crimes Ordinance (Cap. 200) includes the stimulation or satisfaction of the sexual desire of any person.

5. Disregards

With reference to section 159AAH of the Crimes Ordinance (Cap. 200), a person 'disregards' whether consent is given by the subject individual if a person knows that the subject individual does not consent to the conduct, or if the person is reckless as to whether the subject individual consents to the conduct.

II. Sexual offences to protect vulnerable persons

These offences seek to protect persons who are vulnerable to sexual exploitation or who may not adequately understand the nature or consequences of sexual activity. Vulnerable persons generally include persons under 16 years of age and mentally incapacitated persons.

A. Sexual offences involving young persons or children

1. Unlawful sexual intercourse with a girl under 13 years of age

Unlawful sexual intercourse with a girl under 13 years of age is an offence contrary to section 123 of the Crimes Ordinance (Cap. 200). The maximum punishment is life imprisonment. Section 123 offences are more serious than section 124 offences, which deals with girls under 16 years of age.

For offences where “sexual intercourse” needs to be proved, it is not necessary to prove ejaculation. The offence is complete upon proof of penetration of the vagina by the penis.

The offence is complete upon proof of sexual intercourse with a girl and proof that at the time of the sexual intercourse the girl was under 13 years of age. The fact that the girl consented and/or that the defendant believed the girl was over 13 years of age are not defences to this charge. The offence is a strict liability offence. The objective of the legislation is the protection of girls under 13 years of age. The emphasis is upon deterrence. Having the belief that the girl was over 13 and/or her consent to sexual intercourse may be relevant to the sentencing considerations though the relevance may not be significant since the legislation was designed to protect extremely young girls.

2. Unlawful sexual intercourse with a girl under 16 years of age

Unlawful sexual intercourse with a girl under 16 years of age is an offence contrary to section 124 of the Crimes Ordinance (Cap. 200). The maximum punishment is 5 years' imprisonment.

For offences where “sexual intercourse” needs to be proved, it is not necessary to prove ejaculation. The offence is complete upon proof of penetration of the vagina by the penis.

The offence is complete upon proof of sexual intercourse and proof that at the time of the sexual intercourse the girl was under 16 years of age. The fact that the girl consented and/or that the defendant believed the girl was over 16 years of age are not defences to this charge though may be relevant as a mitigating factor in a sentence. The offence is a strict liability offence. The objective of the legislation is to protect girls under 16 years of age.

It is a defence to a charge under section 124 where the man believes the girl to be his wife and has reasonable cause for that belief even if the “marriage” is invalid because the “wife” is under 16 years of age. This is a narrow defence. It is dependent upon there having been a marriage that is invalid under section 27 of the Marriage Ordinance (Cap. 181) because the girl is under 16 years of age. It is not enough for the man to simply claim a belief in marriage, there must be reasonable cause. The burden of showing reasonable cause for the claimed belief is upon the defendant. This statutory defence only applies to offences under section 124 of the Crimes Ordinance. The statutory defence will rarely be established as section 124 is an offence of strict liability.

3. Buggery with a girl under the age of 21

Buggery with a girl under the age of 21 is an offence contrary to section 118D of the Crimes Ordinance (Cap. 200). The maximum penalty is life imprisonment.

“Buggery” is sexual intercourse by way of penetration of the anus by a penis.

Section 118D makes buggery with a girl under 21 years of age an offence. The offence is committed where there is penetration of the anus by the penis. The slightest penetration is sufficient, ejaculation is not necessary. Whether there has been penetration is a question of fact.

Whether or not there is consent to the buggery is irrelevant. Provided penetration is proved and the girl was under 21 years of age at the time, the offence is committed.

Buggery may be seen as equivalent to sexual intercourse in the traditional sense of those words. Provided there is consent, sexual intercourse between a man and a woman aged 16 is not unlawful. Arguments may arise whether section 118D is unconstitutional insofar as it applies to a girl aged 16 or above but below 21, because it discriminates unfairly between sexual intercourse and buggery. It may be suggested that the different age limits for permissible sexual intercourse and permissible buggery with a girl infringe the right of equality contained in the Basic Law and in the Hong Kong Bill of Rights Ordinance, Cap. 383. This point was expressly left open in Leung T C William Roy v Secretary for Justice, a case involving section 118C of the Crimes Ordinance. Arguments may similarly arise about whether section 118D is a strict liability offence in view of an appeal case in Court of Final Appeal (Hin Lin Yee v HKSAR).

Sentencing considerations

Each case will depend upon its own facts. Generally, the following factors will be considered upon sentence:

1. Custodial sentences are normally imposed.
2. The age of the girl is the most relevant aspect for sentencing purposes. The larger the age difference between the defendant and the girl, the more severe the sentence.
3. A defendant’s genuine mistaken belief as to the victim’s age is relevant to sentencing. A more severe sentence will be imposed where the defendant knew the victim’s age and, despite that, continued his action.

5. Q&A

1. Will I commit an offence if I believe the underage girl is over the prescribed age?

Yes. Under the current law, unlawful sexual intercourse contrary to sections 123 and 124 of the Crimes Ordinance are offences of strict liability. Once it is proved that the girl in question was under 13 years of age for a section 123 charge, or under 16 years of age for a section 124 charge, when the sexual intercourse took place, you are guilty of the offence whether or not you were aware of the girl’s age. Your belief that the girl was over 13 years of age, or over 16 years of age as the case may be, is no defence.

However, in relation to the offence of indecent assault contrary to section 122 of the Crimes Ordinance, while a person under the age of 16 cannot in law give any consent which would prevent an act being an assault, an honest and reasonable belief that the girl was aged 16 or over is a defence due to the Court of Final Appeal case of HKSAR v Choi Wai Lun.

2. What if the underage girl herself consented to the sexual intercourse?

You will still commit an offence. Unlawful sexual intercourse offences with underage girls are concerned with the act of sexual intercourse and the age of the girl when the act occurred, not with whether or not the girl consented. If she did not consent, you could be charged with rape contrary to section 118 of the Crimes Ordinance.

3. If I am drunk and lose self-control, will I be liable?

Yes. Self-induced intoxication (such as drinking alcohol) is not a defence to unlawful sexual intercourse. The questions are whether sexual intercourse occurred and the age of the girl at that time.

B. Abduction of unmarried girl under 18 for sexual intercourse

It is an offence contrary to section 127 of the Crimes Ordinance (Cap. 200) for a person to take an unmarried girl under the age of 18 out of the possession of her parent or guardian against the will of the parent or guardian with the intention that she shall have unlawful sexual intercourse with men or with a particular man.

The word “person” in section 127 means that the offence can be committed by a man or by a woman,

The offence carries a maximum sentence of 7 years imprisonment.

A person will only be liable under this section if the following elements are proved beyond reasonable doubt:

1. The girl is not married;
2. The girl is in the possession of her parent or guardian (any person having the lawful care or charge of the girl) at the time the offence was committed. Possession is a question of fact and depends on the degree of control over the girl by her parents or guardian;
3. “Takes out of possession” and “against the will” of the parent means some conduct by the defendant amounting to a substantial interference with the possession of a parent over his or her child. The conduct in question need not be by force and it is immaterial whether the girl consents to it or not. Inducement or persuasion by the defendant to the girl to leave her parents is sufficient. The defendant's conduct will not amount to abduction if parents’ consent is obtained unless fraud or misrepresentation is involved;
4. The girl is under 18 at the time the offence is committed; and
5. The defendant intends the girl to have unlawful sexual intercourse with any man.

1. What amounts to taking “a girl out of the possession of her parents or guardian”?

The ‘taking’ need not be by force, either actual or constructive. A girl leaving her parents or guardian as a result of persuasion, inducement or blandishment is sufficient. It is immaterial whether the girl consents or not. For example, where a man persuades a girl to live with him by promising to give her something, this may amount to ‘taking’ her away.

2. If the girl is not under the control of her parents or guardian at the time the offence is committed, will I still be liable?

This will depend upon the particular case. There must be substantial interference with the possession of a parent or guardian over his or her child. Whether a girl is in the possession of her parent or guardian is a question of fact. A girl could still be in the possession of her parent or guardian while she is away from home if she intends to return. For example, where a girl is walking in the streets and she is forced onto a car and taken away, this will amount to a substantial interference with the possession of the parent. That conduct could also amount to the common law offences of false imprisonment or kidnapping: taking a person from the place where they are by force and against their will. Kidnapping is punishable by a maximum of 7 years’ imprisonment. If there is doubt about whether the girl was in the possession of her parents and the removal is by force and without her consent, false imprisonment or kidnapping would more likely be charged.

3. Will I be excused if I do not have any corrupt motive when taking an unmarried girl under 18 against the will of her parents?

Yes. Section 127 requires the taking to be with the intention the girl shall have sexual intercourse with men or with a particular man. That is the required corrupt motive or mens rea (guilty mind). There must be the sexual intercourse motive. If the prosecution cannot prove that was the defendant’s purpose at the time of the taking, the defendant must not be found guilty.

For example, persuading a girl under 18 years of age to leave her parents because of violence she has received from a parent is not within section 127. The purpose is to remove the girl from an abusive parent and not for the purpose of her having sexual intercourse with men or a particular man. In this situation there is an evidential burden upon the defendant to raise and support the non-corrupt purpose. The prosecution will then have to negative the claimed non-corrupt purpose by proving that the removal was for purpose of the girl having sexual intercourse with men or with a particular man.

4. What if the girl suggests going away with me and I take merely the passive part of yielding to her suggestion?

It depends upon the purpose of the girl leaving her parents. If the purpose is for her to have sexual intercourse with men or a particular man, helping her leave her parents at her suggestion could bring you into section 127. In reality, a boy who helps his girlfriend who is 16 years of age or over to run away from her parents' home so that they can live together, would unlikely be charged with a section 127 offence. It is not an offence to have sexual intercourse with a girl aged 16 or over. This is a relevant consideration in section 127 situations. Section 127 is an ulterior intent situation. There must be abduction. That abduction must be for the purpose of the girl having unlawful sexual intercourse with men or a particular man.

C. Indecency With Children Under 16

It is an offence contrary to section 146 of the Crimes Ordinance (Cap. 200) for a person to commit an act of gross indecency with or towards a child under the age of 16 or to incite a child under the age of 16 to commit such an act with or towards him/her. The offence is not gender specific and can be committed both by a man and by a woman.

The maximum penalty for this offence is 10 years’ imprisonment.

The act committed by the defendant must be grossly indecent. This means that the act or acts in question must be grossly indecent applying the standards of right thinking members of the community. “Gross indecency” is more than merely indecent. Whether the conduct is grossly indecent will depend upon the circumstances of the particular case.

It was held in a case that a teacher who had kissed his student on the face and lips did not commit an offence under section 146. His act, although indecent, was not grossly indecent according to the standards of contemporary society.

A section 146 offence is committed either by the defendant doing a grossly indecent act towards the child or by inciting the child to commit a grossly indecent act with or towards the defendant. “Incite” means to “encourage”. Persons who invite or encourage the child to commit a grossly indecent act upon them commit an offence just as if they had done a grossly indecent act towards the child. Even though the defendant might remain passive during the activity, a section 146 offence is committed if the grossly indecent activity by the child upon the defendant follows invitation or encouragement by the defendant. An example would be where the defendant exposes his or her private parts and invites the child to touch those private parts.

It is immaterial whether the child consented to the acts which were done to him or her or agreed to the acts he or she was invited to do upon the defendant. Once the acts and the age of the child are proved, the defendant will be convicted.

Section 146(3) provides a statutory defence if the person who commits an act of gross indecency with or towards a child or incites a child to commit such an act with or towards him or her believes on reasonable grounds that he or she is married to the child. This is a narrow defence and is similar to the defence provided by section 124 of the Crimes Ordinance for unlawful sexual intercourse with a girl under 16 years of age (but over 13 years of age). As a result of the Court of Final Appeal case of HKSAR v Choi Wai Lun, an honest and reasonable belief that the girl was aged 16 or over may now be an arguable defence.

1. Will I commit an offence if the child consents to my indecent acts?

Yes. You will still be liable. Section 146(2) specifically states that the child’s consent to gross indecency is not a defence. All that is required is an act of gross indecency with or towards a person who at that time was under 16 years of age.

2. If my intention is not with indecent motive, for example, sexual gratification, will my acts still be considered as indecent?

Yes. Sexual gratification is not a pre-condition for section 146 gross indecency. It does not follow that the absence of sexual gratification means there cannot be an act of gross indecency. The question is whether there was an act of gross indecency with or towards a child under 16 years of age.

For example, the Court has held that making a child change clothes, hold up her skirt, kneel on a bed and raise her buttocks in the air whilst the defendant video-recorded the process satisfied the requirements of section 146. Even though the person making the video recording claimed not to have done so for sexual gratification, the activity was grossly indecent and he had brought that about. He was convicted under section 146. The conviction was upheld on appeal.

3. I did not commit any act towards the child. I only passively allowed a child to keep doing the indecent act in question. Am I liable?

If you invite or encourage the child to commit a grossly indecent act upon you, you will be liable even if you remain passive during the act. The question is whether in the circumstances of the particular case your conduct amounted to an invitation to the child to do or to continue the activity in question.

D. Procuring a Girl Under 21

It is an offence contrary to section 132(1) of the Crimes Ordinance (Cap. 200) to procure a girl under 21 years of age to have unlawful sexual intercourse in Hong Kong or elsewhere with a third person.

The maximum penalty for this offence is 5 years' imprisonment.

To “procure” is to produce or bring about by endeavour. There must be a causal link between what was done by the defendant and the unlawful sexual intercourse with a third person. There will be no “procurement” if the girl acted of her own free will. For example, there will be no procurement if a woman is already a prostitute.

Unlawful sexual intercourse must be proved. As with rape, the slightest penetration of the vagina by the penis is sufficient, and ejaculation is not required.

E. Causing or Encouraging Prostitution of Girl or Boy Under 16

It is an offence contrary to section 135 of the Crimes Ordinance (Cap. 200) for a person to cause or encourage the prostitution of, or an unlawful sexual act with a girl or boy under the age of 16 for whom that person is responsible.

The maximum punishment is imprisonment for 10 years.

“Prostitution” means a man or a woman offering his or her body commonly for acts of lewdness in return for payment. Prostitution does not require sexual intercourse though frequently that will occur. The essence of prostitution is the offer of the body for acts of lewdness in return for payment.

A person is responsible for the girl or boy if he or she is her parent or guardian, has actual possession or control of the girl or boy, or has the custody, charge or care of her/him.

The ordinary meaning of “encourage” is suggesting by words and/or by actions that something should happen. The prosecution must prove that the defendant actively encouraged the prostitution or the unlawful sexual act. This is a question of fact in each case. Prostitution may be caused or encouraged by knowingly allowing the boy or girl to consort with prostitutes or enter or continue in the employment of any prostitute or person of known immoral character. Allowing a girl or boy under the age of 16 for whom the defendant is responsible to work or to continue to work in premises where the defendant knows that prostitution or unlawful sexual acts take place would likely be seen as encouragement for the purposes of section 135.

F. Child pornography

1. Elements of the Offence

“Child” means a person under the age of 16 years of age.

“Child pornography” is defined as any photograph, film, computer generated image or other visual depiction that is a pornographic depiction of a person who is or is depicted as being a child. Pornographic depiction means a visual depiction:

1. of a person as being engaged in explicit sexual conduct, whether or not the person is in fact engaged in such conduct; or
2. that depicts in a sexual manner or context the genitals or anal region of a person or the breast of a female person, but does not include a depiction for a genuine family purpose.

The pornography may be by electronic or other means, and includes data stored in a form that is capable of being converted into a photograph, film, image, such as a computer file. For example, it is an offence contrary to section 3 of the Prevention of Child Pornography Ordinance (Cap. 579), for any person to:

1. (Section 3(1)) Print, make, produce, reproduce, copy, import or export any child pornography.
The maximum penalty is a fine of $2,000,000 and imprisonment for 8 years (on summary conviction a fine of $1,000,000 and imprisonment for 3 years);

2. (Section 3(2)) Publish any child pornography. 
The maximum punishment is a fine of $2,000,000 and imprisonment for 8 years (or on summary conviction a fine of $1,000,000 and imprisonment for 3 years);

3. (Section 3(3)) Possess any child pornography (unless he or she is the only person pornographically depicted in the child pornography). 
The maximum penalty is a fine of $1,000,000 and imprisonment for 5 years (or on summary conviction a fine of $500,000 and imprisonment for 2 years);

4. (Section 3(4)) Publish or cause to be published any advertisement that conveys or is likely to be understood as conveying the message that any person has published, publishes or intends to publish any child pornography. 
The maximum punishment is a fine of $2,000,000 and imprisonment for 8 years (or on summary conviction a fine of $1,000,000 and imprisonment for 3 years).

A person “publishes” child pornography if he or she:

1. distributes, circulates, sells, hires, gives or lends the child pornography to another person; or
2. shows the child pornography in any manner whatsoever to another person including publicly displaying the child pornography in any public street or pier, or public garden or any public place where the public are permitted to have access.

2. Defences

It is a defence to the offences under section 4 of the Prevention of Child Pornography Ordinance (Cap. 579) if it is established by the Defendant on a balance of probabilities that:

1. the depiction has artistic merit; or
2. the thing alleged to constitute child pornography is or was at the time the alleged offence was committed classified as a Class I or a Class II article under the Control of Obscene and Indecent Articles Ordinance (Cap. 390).

Except for an offence of possession of child pornography under section 3(3), it is established by the defendant on a balance of probabilities that:

1. the act done was for a genuine educational, scientific purpose;
2. the act subject to the charge otherwise served the public good and did not extend beyond what served the public good;
3. that he or she had not seen the child pornography and did not know or have any reasonable cause to suspect it to be child pornography; or
4. that he or she had:
   1. taken all such steps as were reasonable and practical in the circumstances of the case to ascertain the age of the person pornographically depicted in the child pornography when originally depicted;
   2. if able to influence in any way how the person was depicted, had taken all such steps as were reasonable and practicable in the circumstance of the case to ensure that the person was not depicted as a child; and
   3. believed on reasonable grounds that the person depicted was not a child when originally depicted and that the person was not depicted as a child.

For the offence of possession of child pornography (section 3(3)), it is also a defence for the defendant to establish on a balance of probabilities that:

1. possession of the child pornography was for a genuine educational, scientific or medical purpose;
2. possession of the child pornography otherwise served the public good and did not extend beyond what served the public good;
3. he or she had not seen the child pornography and did not know, nor suspect, it to be child pornography;
4. he or she had not asked for any child pornography and, within a reasonable time after it came into possession endeavoured to destroy it; or
5. he or she believed that the person pornographically depicted in the child pornography was not a child when originally depicted and that the person was not depicted as a child.

The defences to possession of child pornography (section 3(3)) are separate from the other child pornography defences provided by section 4. The defence to possession of child pornography provided by section 4(3) applies only to section 3(3) offences. The defence under section 4(3) is only established if the defendant adduces sufficient evidence to raise an issue of the truth of the facts relied upon and the contrary is not proved by the prosecution beyond reasonable doubt. The other defences in section 4 place a burden upon the defendant to prove the facts relied upon on the balance of probabilities.

3. Q&A

1. My friend gave me a computer disc without telling me what it contained. When I opened the files on the disc on my computer I realised they contained naked children. Have I committed an offence?

Assuming the computer CD contains child pornography, you will now be in possession of child pornography contrary to section 3(3) of the Prevention of Child Pornography Ordinance (Cap. 579) . As you have viewed the computer disc you cannot argue that you had not seen the child pornography and that you did not know or suspect the computer disc to contain child pornography. However, section 4(3) of the Ordinance provides a possible defence. The first thing you have to establish is that you did not ask your friend to provide you with child pornography. With the assumption that the computer disc was a gift from a friend and he did not tell you what the disc contained, the first requirement of the defence will likely be established. The defence under section 4(3) requires that within a reasonable time of you realising that the computer disc contains child pornography, you endeavour to destroy it. Whether you endeavoured to destroy the child pornography, for example by deleting the files or destroying the disc is a question of fact. Whether you did that within a reasonable time is also a question of fact. If you watched the disc until the end, you would not have endeavoured to destroy the child pornography within a reasonable time.

2. Are the police allowed to search my premises for child pornography?

Yes. The police or the Customs and Excise may apply to a magistrate under section 5 of the Prevention of Child Pornography Ordinance (Cap. 579) for a warrant to enter your premises to search and seize anything in respect of which an offence under section 3 of the Ordinance has been or is being or is about to be committed. Anything which contains evidence of the commission of offences under section 3 of the Ordinance may also be seized. Items include electronic devices like computers, laptops and mobile devices.

3. Can I have photographs or articles classified to determine whether or not they are liable to an offence relating to child pornography?

Yes. Photographs or articles may be submitted to the Obscene Articles Tribunal (“OAT”) for classification in accordance with section 13 of the Control of Obscene and Indecent Articles Ordinance (Cap. 390). If the OAT classifies the photographs or articles as Class I (meaning it is neither obscene nor indecent) or Class II (meaning it is indecent), this is a defence to charges under section 3 of the Prevention of Child Pornography Ordinance (Cap. 579). The OAT may impose conditions or restrictions relating to the publication of a Class II articles, for example to how they may be sold. Photographs or articles classified as Class III by the OAT cannot be published.

4. Is it an offence to watch a live pornographic performance by a child?

It is an offence under section 138A of the Crimes Ordinance (Cap. 200) to use, procure or offer another person who is under the age of 18 for making pornography, or for a live pornographic performance, in which that other person is or is to be pornographically depicted.

If the offence is committed in relation to a person under the age of 16, the maximum penalty is a fine of $3,000,000 and imprisonment for 10 years. If the person pornographically depicted is aged 16 or above but under 18, the maximum penalty of a fine of $1,000,000 and imprisonment for 5 years.

It is a defence to a charge under section 138A if the person pornographically depicted is above the age of 16 but under 18, that person consented to being so depicted and the pornography was made or performed solely for the personal use of the Defendant and the person depicted.

Though the prohibited activities within section 138A do not cover watching a live pornographic performance by a child, depending on the extent of involvement, one who participates in watching the live performance may be guilty of the offence of aiding and abetting the commission of the section 138A offence.

III. Sexual offences to protect public morality

These offences seek to promote a social or moral goal by restricting sexual activities which clearly violate the generally accepted moral standards of society.

A. Indecency

1. Gross Indecency

A. It was an offence contrary to section 118H of the Crimes Ordinance (Cap. 200) for a man to commit an act of gross indecency with a man under the age of 16, or being under the age of 16 to commit an act of gross indecency with another man.

B. It was an offence contrary to section 118J of the Crimes Ordinance (Cap. 200) for a man to commit an act of gross indecency with another man other than in private.

Both offences have been held unconstitutional and will not be further discussed.

3. Procuring Gross Indecency by Man With Man

It was an offence contrary to section 118K of the Crimes Ordinance (Cap. 200) to procure a man to commit an act of gross indecency with another man.

This offence has now been held to be unconstitutional.

2. Gross Indecency by a Person With a Mentally Incapacitated Person

It used to be an offence contrary to section 118I of the Crimes Ordinance (Cap. 200) for a man to commit an act of gross indecency with another man who is a mentally incapacitated person. However, pursuant to Yeung Chu Wing v Secretary for Justice, the offence under section 118I is now gender-neutral and applies to both man and woman. In other words, it is an offence contrary to section 118I for a person to commit an act of gross indecency with another person who is a mentally incapacitated person.

The maximum penalty for the offence is 2 years imprisonment.

A mentally incapacitated person is a mentally handicapped or disordered person whose disorder or handicap makes that person incapable of living an independent life or guarding against serious exploitation.

A person who does not know and has no reason to suspect that the other person is mentally handicapped does not commit an offence under section 118I. Knowledge is a question of fact. The court will look at all the circumstances of the case, including anything the defendant says and the relationship between the parties, when considering whether knowledge is proved.

Gross indecency is not defined in the Crimes Ordinance (Cap. 200). It will be for the court to decide in each case whether there is gross indecency applying the standard of right thinking persons in contemporary society. This means the definition of gross indecency is flexible and reflects changing standards within society.

B. Acts Outraging Public Decency

It is an offence at common law for a person to do an act or acts which outrage public decency.

The maximum punishment for the offence is 7 years imprisonment. As the offence is a common law offence, there is no specified punishment in any Ordinance in Hong Kong. The maximum punishment of 7 years imprisonment is provided by section 101I of the Criminal Procedure Ordinance (Cap. 221) which sets out the maximum penalty for offences which are not created by a Hong Kong Ordinance.

The offence is intended to prevent the corruption of the mind and the destruction or erosion of values of decency, morality and good order. The focus is upon the defendant’s action and its affect upon members of the public. In considering the affect upon members of the public, the courts apply the standards of right thinking members of the community.

In general, the offence applies to all grossly scandalous behaviour or behaviour that openly outrages indecency or is offensive and disgusting, or is injurious to public morals by tending to corrupt them.

The prosecution must prove that the activity complained of was committed in public. That means the offence must be committed in circumstances where there is a real possibility of members of the public witnessing the act. What is done must be sufficiently lewd, obscene or disgusting to be an outrage to public decency. It is not necessary for the prosecution to prove that persons who witnessed the act were outraged. Though the prosecution can call evidence from persons who witnessed the act, ultimately the question of whether the act outrages public decency is for the court trying the case.

It is not necessary to prove that the defendant intended to outrage public decency or was reckless whether or not the public would be outraged. It is sufficient for the prosecution to prove the defendant intended to do the act which gives rise to the allegation of outraging pubic decency. An example of this offence includes indecent exposure in public.

C. Offences Relating to Prostitution

The word “prostitute” is defined by section 117(1) of the Crimes Ordinance (Cap. 200) as referring to a person of either sex. A prostitute is a man or a woman who offers his or her body commonly for acts of lewdness in return for payment. Sexual intercourse is not a pre-condition for prostitution.

1. Living on Earnings of Prostitution

It is an offence contrary to section 137 of the Crimes Ordinance (Cap. 200) to knowingly live wholly or in part on the earnings of prostitution of another.

The maximum penalty is imprisonment for 10 years.

The essence of the offence is knowingly receiving money from the acts of prostitution or knowingly being supported by the prostitute from the proceeds of prostitution. The word “person” in section 137 confirms that the offence may be committed by a man or by a woman. Simply receiving money from a prostitute, for example as payment for food or accommodation supplied, is insufficient for a conviction under section 137. The circumstances of the defendant’s relationship with the prostitute and the circumstances in which the payment was received from the prostitute must be considered. The prosecution must prove that the defendant knew that he or she was living wholly or partly on the earnings of prostitution.

There are 3 distinct situations which the prosecution can rely upon when trying to prove an offence under section 137. These are:

• proof that the defendant was living with the prostitute;
• proof that the defendant was habitually in the prostitute’s company;
• proof that the defendant exercised control, direction or influence over the prostitute’s movements in a way that showed he or she was aiding and abetting or compelling that prostitution.

In either or those circumstances the defendant is presumed to be knowingly living on the earnings of prostitution.

1. I did not know the person I was living with was a prostitute. Have I committed this offence?

The prosecution must prove that you knew that the person you were living with was a prostitute and that you knew his or her contributions to your living expenses came from what was earned as a prostitute. If in all the circumstances there is a reasonable doubt about whether you knew you were living upon the earnings of prostitution, you will not commit an offence under section 137. In practice, if you are living with a working prostitute or are habitually in the company of a working prostitute, the prosecution may have a strong case against you for knowingly living on the earnings of prostitution. Even so, depending on the actual circumstances of the case, there may still be a reasonable doubt about your knowledge.

2. Am I liable if I never received any money directly from the prostitute?

Proof that you actually received money from the prostitution is not necessary. The question is whether you were knowingly living off the earnings of prostitution, not whether you received money from the prostitute. Evidence that the prostitute paid the rent for where you were living, paid for your food or a holiday is sufficient to establish living on the earnings of prostitution.

2. Keeping a Vice Establishment

It is an offence contrary to section 139 of the Crimes Ordinance (Cap. 200) to keep any premises, vessel or place as a vice establishment, or to manage or assist in the management, or be in control or in charge of any premises, vessel or place, kept as a vice establishment.

The maximum penalty for this offence is 3 years imprisonment upon summary conviction and 10 years imprisonment upon conviction on indictment.

A vice establishment is defined in section 117(3) of the Ordinance as a place, premises or vessel used wholly or mainly by 2 or more persons for the purposes of prostitution or used wholly or mainly in connection with the organizing or arranging of prostitution. Whether that definition is satisfied in the particular case is a question of fact.

The prosecution must prove that the defendant knew the premises were a vice establishment and that the defendant kept, managed, assisted in the management, or being in charge or control of the operation of the premises as a vice establishment.

1. The premises I operate offers accommodation for legitimate purposes. If there are prostitution activities going on in the premises, am I liable?

If the premises are not “wholly or mainly” used for prostitution, then you will not be liable under this offence. There is no mathematical formula to determine whether the premises were wholly or mainly” used for prostitution and will depend upon the surrounding circumstances of each case. Furthermore, it will depend upon whether the prostitution activity is an “isolated incident” or whether it is continuing in nature, and also your involvement in the control of the premises in light of your knowledge of the prostitution activity taking place.

For example, where premises were used for prostitution only at night, the Court held the premises were “wholly or mainly” used for prostitution. There was the necessary continuity or pattern of use for prostitution. However, where a hotel lets rooms for a proper purpose but the occupants are in fact prostitutes who arrange their activities from their rooms, this does not automatically mean the hotel is a vice establishment or that those managing the hotel knew of the prostitution.

2. How many times do the prostitution activities have to take place at the premises before it is considered as a “vice establishment”?

There is no mathematical formula. There needs to be evidence to show a degree of continuity in the prostitution activity. Whether this is so will depend upon the circumstances of the particular case.

3. Is there a difference if the premises involved the use of children under 13 years of age for the purpose of prostitution or unlawful sexual acts?

Yes. According to section 140 of the Crimes Ordinance (Cap. 200), an owner or occupier of any premises who manages or assists in the management or control of the premises or vessel, who induces or knowingly suffers a girl or boy under 13 to resort to or be on the premises or vessel for the purposes of an unlawful sexual act or for prostitution shall be guilty of an offence. The maximum penalty for that offence on indictment is life imprisonment.

3. Detention of Person in Vice Establishment

It is an offence contrary to section 134 of the Crimes Ordinance (Cap. 200) to detain another person against his/her will in a vice establishment with the intention that he or she shall do an unlawful sexual act.

The maximum penalty for this offence is 14 years imprisonment.

An example of this offence would be to force a prostitute who has left the vice establishment where she worked to return to the establishment to continue working there as a prostitute. Detention is also committed where a prostitute’s clothes or possessions are kept from him or her to prevent them leaving the premises. The questions are whether the premises are a vice establishment, whether the prostitute was detained in those premises, whether the detention was against the prostitute’s will and whether the detention was intended to make the prostitute do an unlawful sexual act.

4. Soliciting for an Immoral Purpose

It is an offence contrary to section 147 of the Crimes Ordinance (Cap. 200) to solicit in a public place or in the view of the public for an immoral purpose or to loiter in a public place for the purposes of soliciting for an immoral purpose.

The maximum penalty for this offence is a fine of $10,000 and imprisonment for 6 months.

A “public place” is:
(a) any place to which for the time being the public or a section of the public are entitled or permitted to have access, whether on payment or otherwise; and
(b) a common part of any premises notwithstanding that the public or section of the public are not entitled or permitted to have access to that common part or those premises.

The most straightforward example of soliciting for an immoral purpose in a public place is the prostitute who approaches persons in the street and offers sexual services in return for payment. A more sophisticated method of soliciting may involve advertising on the internet. The common factor is the active offering of sexual services in return for payment, giving the word “solicit” its usual meaning of asking for something. What is asked for is money and what is offered in return is sexual activity.

The standard for “immoral purpose” is the contemporary standard of morality. Soliciting for prostitution in a public place is soliciting for an immoral purpose. The words “immoral purpose” cover such acts as buggery and acts of gross indecency as well as sexual intercourse, all of which have already been discussed.

1. If I display a sign in public advertising the services of a prostitute, have I committed any offence?

If you put a sign in the window of your home advertising your services as a prostitute where it can be seen by persons outside your home, you have solicited for an immoral purpose. Your sign is directed towards members of the public. 

If you put up a sign in a public place advertising the services of a prostitute or a person who organizes or arranges prostitution, you may have committed an offence contrary to section 147A of the Crimes Ordinance (Cap. 200) which prohibits the display of signs advertising prostitution. The maximum penalty for that offence is 12 months imprisonment.

D. Bestiality

It is an offence contrary to section 118L of the Crimes Ordinance (Cap. 200) to commit buggery with an animal.

The maximum penalty is a fine of $50,000 and imprisonment for 10 years.

“Buggery” with an animal is sexual intercourse by a man or a woman with an animal. Penetration is required but ejaculation is not. The slightest penetration is sufficient. Where or not there is penetration is a question of fact in each case. If penetration is not achieved there may be a conviction for attempted bestiality.

The offence of bestiality depends upon the commission of sexual intercourse with an animal. The defendant is liable once sexual intercourse occurs unless he or she acted under duress.

E. Incest

1. Incest by Man

It is an offence contrary to section 47 of the Crimes Ordinance (Cap. 200) for a man to have sexual intercourse with a woman who is to his knowledge his granddaughter, daughter, sister or mother. The consent of the Secretary of Justice is required for a prosecution for this offence.

The maximum penalties for such an offence are:

a) life imprisonment for the substantive offence where the girl is under 13 years of age;
b) 20 years’ imprisonment where the girl is between 13 years of age and under 16 years of age;
c) 14 years’ imprisonment in all other cases.

An attempt to commit incest carries a maximum penalty of 10 years’ imprisonment. The same sentence applies where a man incites a girl aged under 16 years of age and whom he knows to be granddaughter, daughter or sister to have sexual intercourse with him.

Sexual intercourse is complete upon the proof of penetration. Ejaculation is not required.

The words “granddaughter”, “daughter”, “sister” and “mother” are to be given their ordinary meaning. “Sister” includes “half-sister”. This is so whether the relationship between the Defendant and the person with whom the offence is committed is or is not traced through lawful wedlock. Section 49 of the Crimes Ordinance states that the word “man” includes “boy” and the word “woman” includes “girl”.

It is irrelevant that the sexual intercourse was with the consent of the woman. The woman’s willingness may be relevant to sentence but not to criminal liability.

The prosecution must prove that the defendant knew the female was his granddaughter, daughter, sister or mother at the time of the sexual intercourse. It is a defence if the Defendant is honestly mistaken about the identity of the woman with whom he had sexual intercourse.

2. Incest by a woman of or over 16

It is an offence contrary to section 48 of the Crimes Ordinance (Cap. 200) for a woman of or over 16 to consent to her grandfather, father, brother or son having sexual intercourse with her knowing of that relationship. The consent of the Secretary of Justice is required for a prosecution for this offence.

The maximum penalty for the offence is 14 years’ imprisonment.

Sexual intercourse is complete upon the proof of penetration. Ejaculation is not required.

The words “grandfather”, “father”, “brother” and “son” are to be given their ordinary meaning. The word “woman” includes “girl”.

For this offence, “brother” includes “half-brother”. This is so regardless of whether the relationship between the person charged with the offence and the person with whom the offence is alleged to have been committed is or is not traced through lawful wedlock.

The prosecution must prove that the defendant knew that the man she had sexual with was her grandfather, father, brother or son at the time of the sexual intercourse. It is a defence if the woman was honestly mistaken about the identity of the person with whom she had sexual intercourse.

3. Q&A

1. Do I commit incest if I genuinely believe that the victim is not my daughter/ granddaughter/daughter/sister/mother/grandfather/father/brother/son?

Sections 47 and 48 of the Crimes Ordinance (Cap. 200) both require knowledge of the incestuous relationship at the time of the sexual intercourse. Unless the prosecution can prove beyond reasonable doubt that you knew of the relationship at the time of the sexual intercourse you will not be guilty.

Each case will depend upon its own facts. In deciding whether you knew of the relationship, the court will look at all relevant circumstances. The relevant circumstances include how the sexual intercourse occurred, what contact you had with each other before the sexual intercourse and what, if anything, you had been told about that person before the sexual intercourse occurred. If, on the totality of the evidence, there is a reasonable doubt about your knowledge of the relationship, you will be acquitted of the offence of incest.

2. Do I still commit the offence if there is consent to sexual intercourse?

Yes. Consent is irrelevant. Once sexual intercourse and knowledge of the relationship is proved, incest is proved. Section 47 of the Crimes Ordinance (incest by men) expressly states that the woman’s consent to sexual intercourse is no defence. Section 48 of the Crimes Ordinance (incest by a woman of or over 16) also clearly states that the woman’s consent to sexual intercourse is not a defence.

Q&A

1. Could a person be held liable for voyeurism if they were to install a hidden camera in a public restroom to record individuals without their knowledge?

Yes.  It is voyeurism to visual record another person for a sexual purpose or pleasure if they were to install a hidden camera in a public restroom to record individuals without their knowledge.  Such act will be an offence as the person conducting the recording can reasonably expect individuals in a public restroom to be doing an intimate act whereby they would be using the toilet in a manner that an intimate part such as an individual's genitals, buttocks, anal region or breasts (whether exposed or only covered with underwear), or an individual's underwear covering these body parts is likely to be revealed.

2. Could a person be held liable for voyeurism if they were to install a hidden camera in the guest bedrooms of their own home to record intimate moments of their guests without their knowledge?

Yes. Installing a hidden camera in the guest bedrooms of the respective individual's home to record intimate moments of their guests without their knowledge would be voyeurism as it involves the visual recording of another person for a sexual purpose or pleasure.  Irrespective of whether the hidden camera is able to capture any intimate moments of their guests, it would still amount to an act of voyeurism to install hidden cameras in the respective individual's home without their guest's consent nor knowledge since it will involve an act of non-consensual observation of the guests.

3. Could a person be held liable for voyeurism for taking a photo of an individual’s buttocks in a public place?

Yes.  As an individual's buttocks is an intimate part, if a person were to take a photo or photographs of an individual's buttocks in a public place without their consent, it will be voyeurism since visual recordings include clandestine photography or digital images aside from the above-mentioned hidden camera recordings. 

If an individual gives consent to allow for their buttocks to be photographed in a public place, although this will not amount to voyeurism since it would constitute as a consensual act, the parties involved may be in violation of other laws such as indecent exposure under section 148 of the Crimes Ordinance.  

Q&A

1. Could a person be held liable for unlawful recording or observation of intimate parts for taking an upskirt photo of another individual on the street?

Yes.  Taking an upskirt photograph would constitute as an act of unlawfully recording or observation of the intimate parts since 'upskirting' would require the conduct of recording an intimate part of the individual which would not otherwise be visible, with the intention to observe or record an intimate part of an individual.  More so, it is an offence to record an intimate part from beneath an individual's clothing whether or not such recording was captured through the opening gap of an individual's outer clothing.

Q&A

1. Could a person be liable for distributing an intimate video of their former partner after the relationship had ended?

Yes.  It is an offence under section 159AAE of the Crimes Ordinance (Cap. 200) to publicise intimate images without the consent of the former partner, if the person intends or is reckless as to whether the publication of the intimate video of their former partner causes them humiliation, alarm, or distress.  

2. Could a person be liable for threatening to disseminate “deepfake" intimate images of another person on the internet?

Yes.  It is an offence under section 159AAE of the Crimes Ordinance (Cap. 200) to threaten to disseminate 'deepfake' intimate images of another person without their consent if the person intends or is reckless as to whether the posting of the 'deepfake' intimate images would cause humiliation and distress to the victim.

The person making such publication will receive imprisonment for the offence of publicising intimate images without the consent of the victim, with a maximum penalty of 5 years' imprisonment.

3. Could a person be liable for simply possessing intimate images that had been published without the subject individual’s consent?

A person could be liable for possessing published intimate images if such images clearly fell under the category of child pornography since section 3(3) of the Prevention of Child Pornography Ordinance (Cap. 579) provides that possession of any child pornography would lead to a person being liable to imprisonment and a possible fine.

4. What can I do if someone has published or is threatening to publish intimate images of me?

It is an offence contrary to section 159AAE of the Crimes Ordinance (Cap. 200) to publicise or threaten to publicise intimate images without the consent of the person. 

If such intimate images have been published, you may report the matter to the police. If criminal proceedings are brought in relation to an offence under Section 159AAD or 159AAE, the Secretary for Justice may, in accordance to section 159AAL of the Crimes Ordinance (Cap. 200), submit an application to the magistrates to request for such intimate images to be removed, deleted, or destroyed and at the discretion of the magistrates, it may be ordered that such intimate images be removed, deleted, or destroyed within a specified period.

For information about relevant NGO that may provide assistance, please refer to the "IV. Assistance" section.

4. Homosexual buggery with or by a man under 16

Under Section 118C of the Crimes Ordinance (Cap. 200), it is an offence for a man to commit buggery with a man under the age of 16. It is no longer an offence for a man under the age of 16 to commit buggery with another man.

The maximum penalty for the offence under Section 118C is (1) life imprisonment if the offence committed is with a boy under 13, and (2) 5 years' imprisonment if the offence committed with a boy under 16 but above 13.

5. Is it an offence for parents to post nude childhood photos of their children without their consent?

It depends on the age of the child and whether it can be viewed as a “pornographic depiction”.  Where it was an image of the parent's child without wearing clothes and that such pictures were shared between the respective family members, it can be argued that this does not constitute an offence for child pornography if there is no reasonable cause to suspect such images to be child pornography and that the images were shared amongst the family for a genuine family purpose.

1. Non-Consensual Buggery

Non-consensual buggery is an offence contrary to section 118A of the Crimes Ordinance (Cap. 200). Under section 118A, it is an offence to commit buggery with another person who at the time of the buggery does not consent to it.

The maximum punishment is life imprisonment.

F. Upskirt photography

Section 159AAC of the Crimes Ordinance (Cap. 200) introduced a new offence of “Unlawful recording or observation of intimate parts”, which deals with “upskirting” and “down-blousing” photography. This new offence came into effect on 8 October 2021.

Under section 159AAC of the Crimes Ordinance (Cap. 200), it is an offence to:

1. Engage in the following conduct:

   • record an intimate part of an individual where the intimate part would not otherwise be visible; or

   • with intent to observe or record an intimate part of an individual, operate an equipment

     • to observe or record an intimate part of the individual from beneath their clothing; or

     • in an unreasonable manner to observe or record an intimate part of the individual through an opening or a gap in the outer clothing of the individual,

in circumstances in which the intimate part would not otherwise be visible;

2. for a sexual purpose or dishonestly, and

3. disregard whether or not the person being recorded or observed consents to the conduct.

The maximum penalty for this offence is 5 years' imprisonment.

Each case will depend upon its own facts though generally, a person will receive imprisonment for upskirt photography offences.

1. Intimate part

The interpretation of 'intimate part' is defined under section 159AA of the Crimes Ordinance (Cap. 200) as an individual's genitals, buttocks, anal region or breasts (whether exposed or only covered with underwear, or an individual's underwear covering genitals, buttocks, anal region or breasts.

2. Sexual purpose

The interpretation of 'sexual purpose' in relation to a person under section 159AA of the Crimes Ordinance (Cap. 200) includes the stimulation or satisfaction of the sexual desire of any person.

3. Dishonestly

A person who observes or records intimate parts in a dishonest way would commit the offence if other elements of the offences are proven. In considering whether the defendant has engaged in the conduct dishonestly, the circumstances or manners in which the observation or recording is done, rather than the purpose of the observation or recording, constitute the relevant evidence. Each case will be dealt with on a case by case basis.

4. Disregards

With reference to section 159AAH of the Crimes Ordinance (Cap. 200), a person 'disregards' whether consent is given by the subject individual if a person knows that the subject individual does not consent to the conduct, or if the person is reckless as to whether the subject individual consents to the conduct.

G. Publication of images originating from commission of offence under section 159aab(1) or 159aac(1)

It is an offence contrary to section 159AAD of the Crimes Ordinance (Cap. 200) to publicise images originating from voyeurism or unlawful recording or observation of intimate parts.

Under section 159AAD, it is an offence if the person:

1. publishes an image of an individual;
2. the image originates from the commission of the offence of voyeurism under section 159AAB(1) or the offence of unlawful recording or observation of intimate parts under section 159AAC(1);
3. knows or is reckless as to whether the image originates from the the commission of an offence under section 159AAB(1) or 159AAC(1); and
4. disregards whether the individual consents to the publication.

The maximum penalty for this offence is 5 years' imprisonment.

1. “Publishes”

A person “publishes” an image if the person:

1. distributes, circulates, makes available, sells, hires, sends, gives or lends the image to another person; or
2. shows the image in any manner to or for another person.

2. "Knows that" or "is reckless as to whether" the image originates from the commission of a specified offence

The prosecution must prove that the publisher knows that the image originates from the commission of a specified offence, or is reckless as to whether the image originates from the commission of the offence, and disregards whether the subject individual consents to the publication.

A person would be treated as if they knew that a specified offence has been committed if the person is aware of all the matters that must be established in order to prove the specified offence. A person is taken to be reckless as to whether a specified offence has been committed if the person is reckless as to the existence of all those matters.

H. Publication or threatened publication of intimate images without consent

It is an offence contrary to section 159AAE of the Crimes Ordinance (Cap. 200) to publicise or threaten to publicise intimate images without the consent of the victim.  This applies even if the person initially agreed to have the pictures taken but did not agree to them being shared later (like in cases of revenge porn).

Under section 159AAE, it is an offence if a person:

1. publishes or threatens to publish an intimate image of an individual;
2. intends the publication or threat to cause humiliation, alarm or distress to the individual, or knows or is reckless as to whether the publication or threat is likely to cause humiliation, alarm or distress to the individual;
3. no consent is given by the individual to the publication or threatened publication;
4. disregards whether the individual consents to the publication or the threatened publication.

It is immaterial whether the person who makes the threat is capable of publishing the intimate image. A person can be liable even if the image does not exist or the person does not possess it. The focus is on the conduct of threatened publication.

The maximum penalty for this offence is 5 years' imprisonment.

IV. Assistance

If you or someone you know experienced sexual violence, you may consider seeking assistance from relevant NGOs. One such example is RainLily, a sexual violence crisis centre in Hong Kong. They provide victims of sexual violence with a range of support services, including free legal advice through a face-to-face meeting with pro-bono lawyer. Details of RainLily are as follows:

Take-Down Assistance (Ta-DA) for Image-Based Sexual Abuse:

Ta-DA assists victims of image-based sexual abuse, regardless of gender and sexual orientation, in reporting non-consensual intimate images to online platforms for removal. To learn more about their service and to seek assistance, please visit their website and fill out the web form.