B. Urination or defecation

B. Urination or defecation 

Under section 4(3) of the Summary Offences Ordinance (Cap. 228), a person commits an offence if, without lawful authority or excuse, he obeys any call of nature in any public, exposed or otherwise improper place. The penalty for the offence is a fine of $2,000 and imprisonment for 3 months. 

Under section 8(1) of the Public Cleansing and Prevention of Nuisances Regulation (Cap. 132BK), no person may obey the call of nature in any street, public place or place exposed to public view.  

Urination or defecation by children and criminal responsibility 

Where the person who urinates or defecates in a public place is a child, doli incapax is applicable. A child below the minimum age of criminal responsibility (i.e. 10 years old) cannot be convicted of an offence. In addition, for children aged 10 or above and below 14, there is a presumption that the child is incapable of committing a criminal offence unless the prosecution proves that the child knew that the act was seriously wrong, and not merely naughty or mischievous. 

Accordingly, depending on the child’s age and the evidence, a child who obeys the call of nature in a street, public place, or a place exposed to public view may not necessarily be criminally liable, even though the act itself falls within the prohibition against public urination or defecation. 

Liability of persons having custody or care of a child 

However, this does not relieve the adult or other person who has the care or custody of the child from liability. Section 8(2) of the Public Cleansing and Prevention of Nuisances Regulation creates a separate offence. It provides that a person who has the custody or care of a child under the age of 12 must not, without reasonable cause, permit the child to obey the call of nature in any street, public place or place exposed to public view. 

Therefore, even if the child is not guilty because of age, lack of criminal responsibility, or doli incapax, the person having care or custody of the child may still be guilty if that person permitted the child to obey the call of nature in such a place without reasonable cause. The adult cannot avoid liability simply by saying that:  

• the child was too young to commit an offence; 
• the child, not the adult, urinated or defecated; 
• the child did not understand that urinating or defecating in such a place was wrong; or 
• the child cannot be prosecuted or convicted. 

The relevant question for the adult’s liability is whether the adult had care or custody of the child, whether the child was under 12, whether the child obeyed the call of nature in a street, public place or place exposed to public view, and whether the adult, without reasonable cause, permitted that to happen. 

Penalties 

A contravention of section 8(1) or section 8(2) of the Public Cleansing and Prevention of Nuisances Regulation is punishable by a fine of $5,000 on a first conviction and a fine of $10,000 on a second or subsequent conviction.