Hong Kong’s Law Reform Commission has called on the government to enact new laws on voyeurism and upskirting to plug a legal loophole left open by a court ruling that a “one-size-fits-all” charge no longer applies to offenders who use their own devices.
In a report published on Tuesday, the commission wrote that there is a pressing need for new laws to be enacted, noting that there are currently no specific laws against voyeurism and upskirting.Earlier this month, the Court of Final Appeal ruled that the charge of “obtaining access to a computer for criminal or dishonest gain” could not be applied to a person’s own phone or computer.
The charge has often been used by prosecutors in Hong Kong against a range of offences, including upskirting and leaking exam questions, in what critics have called a blanket fashion.
The ruling forced prosecutors to put over a dozen court cases on hold. The problematic charge has also been dropped in two cases since the ruling was handed down on April 4.
In the new report, the commission recommended Hong Kong authorities base the new law on section 67 of the English Sexual Offences Act 2003.
It said a specific offence of voyeurism should be introduced to criminalise acts of non-consensual observation or visual recording of another person for a sexual purpose.
“Such an act is a serious violation of another person’s sexual autonomy,” the commission wrote.
According to the British law, voyeurism is defined as observing another person doing a private act for sexual gratification.
For non-consensual upskirting, the commission said there should be two offences, one for those who commit the act for sexual gratification and another for other reasons.
The latter would act against those who take upskirt photos or videos on behalf of others or for monetary gain, or for the purpose of humiliating and distressing a victim.
“The catch-all provision would be a statutory alternative offence if the purpose of obtaining sexual gratification cannot be proved at trial,” it said.
The commission, however, did not say when the government should start the legislation process.
The Security Bureau welcomed the commission’s recommendations.
“The bureau will study and follow up on [the report], and make legislation proposals as soon as possible,” it said.
Law lecturer Eric Cheung Tat-ming, who was among the commission’s review of sexual offences subcommittee which formulated the report, said the reason the law’s scope was relatively narrow was because the commission was in a race against time.
For instance, “downblousing” – when one’s take a picture down someone’s top to capture their cleavage – is currently not covered in the current suggestion.
Cheung, a principal lecturer at the University of Hong Kong, said downblousing proved to be more controversial during the commission’s consultation, while there was a strong consensus to outlaw upskirting.
“There was a sense of urgency for us to target a more common phenomenon,” he said.
Barrister Tien Kei-rui, of the Progressive Lawyers Group, did not think the commission’s proposal would be casting the net too wide. “It refers specifically to upskirting,” he said.
But he noted that the offence did not cover non-sexual voyeuristic acts, such as eavesdropping on others’ private lives.
Cheung explained that the subcommittee focused only on sexual offences. “Bear in mind that we are not going into areas where only the protection of privacy is in question,” he said.
Former director of public prosecutions Grenville Cross expected the suggestion could plug the loophole.
“There is, of course, a lacuna in the criminal law at present, and existing fallback charges, such as outraging public decency, lack the precision of the two upskirting offences recommended today,” he said.
But he was also concerned that the proposal failed to cover the illicit photographing of a victim’s body parts by means other than upskirt photographing. “This also needs to be criminalised”.
Lawmakers from both the pro-democracy and pro-establishment camps urged the government to act quickly.
IT sector lawmaker Charles Mok said the laws have been in effect in Britain for more than a decade, and the bureau should make enacting one for Hong Kong a top priority.
Elizabeth Quat Pui-fan of the pro-government Democratic Alliance for the Betterment and Progress of Hong Kong said she hoped legislation could be completed by 2021.
This article originally appeared in South China Morning Post on 30 April 2019