Q3. Why a man taking sneak shots of a woman's legs can be charged under the MTR By-laws, the Public Order Ordinance or the Crimes Ordinance?
When choosing charges to be prosecuted, the prosecution should attempt to reflect adequately the criminality of the conduct alleged, in a manner that is both efficient and that will enable the court to do justice between the community and the accused. The number of charges should be kept as low as reasonably possible. Where a large number of offences of a similar nature is alleged, the use of representative charges should be considered. If the accused agrees, outstanding additional charges may be taken into account on sentencing: see Prosecution Code, at §8.1.
If the criminality of any specific act may not be serious enough, the prosecution may prefer a charge of a less serious nature. The ultimate question is whether the charge preferred adequately reflects the criminality of any alleged act committed by the defendant or the accused.
If there is insufficient evidence to satisfy the element of the offence of any particular charge, such that it does not demonstrate a reasonable prospect of conviction, the Prosecution may prefer one charge to another: see Prosecution Code, at §§5.4 to 5.5.
The following illustrates the possible charges in relation to sneak-shotting. As the maximum penalty and the ingredients of each offence stated below are different, the Prosecution would choose the most proper charge having regard to the sufficiency of evidence in satisfaction of the elements of the offence, criminality of the defendant’s conduct and the public interest at large.
Sneak-shotting of women’s leg
Under By-law 25 of the Mass Transit Railway By-laws (Cap. 556B), no person shall conduct himself on any train or in any part of the railway premises so as to cause a nuisance or annoyance to other passengers. The maximum penalty for contravention of By-law 25 is a fine of $5,000: see Schedule 2 of Mass Transit Railway By-laws (Cap. 556B).
Under By-law 28H(1)(d) of the Mass Transit Railway By-laws (Cap. 556B), no person shall at any time while upon the railway premises molest any person or wilfully interfere with the comfort or convenience of any such person. The maximum penalty for contravention of By-law 28H(1)(d) is a fine of HK$5,000.
Public Order Ordinance
Under Section 17B(2) of the Public Order Ordinance (Cap. 245), any person who in any public place behaves in a noisy or disorderly manner, or uses, or distributes or displays any writing containing, threatening, abusive or insulting words, with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, shall be guilty of an offence and shall be liable on conviction to a fine at $5,000 and to imprisonment for 12 months.
Under Section 160(3) of the Crimes Ordinance (Cap. 200), if any person loiters in a public place or in the common parts of any building and his presence there, either alone or with others, causes any person reasonably to be concerned for his safety or well-being, he shall be guilty of an offence and shall be liable on conviction to imprisonment for 2 years.
- Unlawful recording or observation of intimate parts
- the person—
- records an intimate part of an individual, in circumstances in which the intimate part would not otherwise be visible; or
- with intent to observe or record an intimate part of an individual--
- operates equipment for the purpose of observing or recording an intimate part of the individual from beneath the clothing of the individual; or
- operates equipment in an unreasonable manner for the purpose of observing or recording 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;
- the person engages in these conduct —
- for a sexual purpose; or
- dishonestly; and
- the person disregards whether the individual consents to the person’s these conducts.
A person who commits an offence under Section 159AAC(1) of the Crimes Ordinance (Cap. 200) is liable on conviction on indictment to imprisonment for 5 years: see Section 159AAC(2) of the Crimes Ordinance.
Intimate part (私密部位), in relation to an individual, means—
- the individual’s genitals, buttocks, anal region or breasts (whether exposed or only covered with underwear); or
- the individual’s underwear covering genitals, buttocks, anal region or breasts;
- means creating or generating an image; and
- includes any act of making a visual record that is transmitted in real time with or without retention or storage in—
- a physical form; or
- an electronic form from which the record is capable of being reproduced with or without the aid of any device;
Sexual purpose (性目的), in relation to a person, includes the stimulation or satisfaction of the sexual desire of the person or any other person.
Common law – Outraging public decency
In Regina v Hamilton  QB 224, a filming of a hidden camera of a number of women’s skirts inside a supermarket is held to be in contravention of the common law offence of outraging public decency, as filming of women’s skirts is an act of such a lewd, obscene or disgusting character as to outrage public decency, as judged by contemporary standards, in a place to which the public had access or where what was done was capable of public view and in a way which was capable of being seen by two or more persons who were actually present.