Most sexual offences are to be found in the Crimes Ordinance, Cap 200. In September 2012 the Law Reform Commission published a consultation paper making proposals for the reform of some of the sexual offences found in the Crimes Ordinance, pointing out that crimes like rape are gender-specific (currently a man can not be charged with raping another man) while others are based on the sexual orientation of the parties. Recommendations included the creation of a statutory definition of “consent” to sexual activity; a new definition of the offence of rape which can be committed against a person of either sex and covering penile penetration of the vagina, anus or mouth; a reformed mental element with regard to the issue of consent; and making “under-the-skirt” photography a sexual assault (currently usually charged under the public order offence of loitering or the common law offence of outraging public decency). Only two of the recommendations have so far been made law – the creation of a register of sex offenders and the abolition of the common law presumption that a boy under 14 is incapable of sexual intercourse. Our lawyers have defended many cases where people have been charged with sexual offences and can advise clients on the issues involved in sexual offence cases. These issues often include the examination of vulnerable witnesses in court involving the use of video equipment, forensic evidence, and the often tricky subject of “consent”.
There are a number of buggery offences found in the Crimes Ordinance including non-consensual buggery; homosexual buggery with or by a man under 21; buggery with a girl under 21 and homosexual buggery committed otherwise than in private. With the exception of non-consensual buggery, all buggery offences would still be committed even if the buggery was carried out with the consent of the participants.
There are a number of gross indecency offences involving adults in the Crimes Ordinance all of which carry a maximum sentence of 2 years imprisonment. They include grossly indecent acts between men where more than 2 persons take part and those that take place in a public lavatory or bathhouse. Gross indecency is not defined in the Crimes Ordinance and the courts in Hong Kong have tended towards a formulation that it involves a “marked departure from decent conduct”. Gross indecency with or towards a child under the age of 16 carries a maximum sentence of 10 years imprisonment. Please see R v Savage & ORS (No2)  4 HKC.
The prohibition against men and women having sexual intercourse with certain family members is found in sections 47 to 51 of the Crimes Ordinance, Cap 200. The offence is aggravated if committed on a woman under 16 and further aggravated if under 13 (life imprisonment being the maximum penalty. Consent of the parties is irrelevant.
Indecent Assault is the sexual offence that we most often encounter in our practice. The offence carries a maximum sentence of imprisonment of 10 years. Indecent Assault covers a vast range of conduct from touching to non-penile sexual penetration. For this reason, charges of indecent assault are heard in the Magistrates Court, the District Court and the High Court. An indecent assault by touching or “feeling up,” alleged to have been committed on the MTR, for instance, is likely to be heard in the Magistracy. The indecent assault of a minor by a person in a position of trust is more likely to be heard in the District Court (Please see HKSAR v T.R.E. DCCC 745/2014). The venue (decided by the Department of Justice) will depend on the facts of the case. The ingredients of the offence are that the accused intentionally assaulted the victim; the assault is capable of being considered by right-minded people as being indecent; and that the accused intended to commit the assault in that way. Indecent Assault on the MTR is a prevalent offence, one which the Court of Appeal has determined should normally attract a deterrent sentence of a short period of imprisonment. Evidence sought by those investigating indecent assaults on the MTR may include Octopus cards (to show the pattern and timing of travel of the suspect on the MTR) or the underpants of a suspect (to ascertain if there is any emission of semen).
If a person, without lawful authority or excuse, indecently exposes any part of his body, in any public place or in view of the public, he can be found guilty of indecent exposure and faces a maximum fine of HK$1,000 or a maximum period of imprisonment of 6 months. The law, however, specifically allows persons under the age of 12 to bath unclothed.
Rape is the most serious of sexual offences and carries a maximum sentence of life imprisonment. It is almost always tried before a jury in the High Court. The crime is committed if a man has intercourse with a woman knowing (or being reckless to her consent) that she does not consent to it at the time of the intercourse. Intercourse must consist of penetration (the slightest is sufficient) of a woman’s vagina but there need not be the emission of seed. The man’s state of mind as to the woman’s consent (i.e. did he have reasonable grounds to believe that she was consenting) is a relevant consideration in his defence. The legislation provides specifically that rape is committed if a man induces a married woman to have sexual intercourse with him by impersonating her husband.
A man who commits sexual intercourse with a girl under the age of 16 (section 124) faces a maximum sentence of 5 years imprisonment. A man who commits sexual intercourse with a girl under the age of 13 (section 123) faces a maximum sentence of life imprisonment. If convicted of USI, the courts often look at the age differential between the parties. So, for example, a 17 year old male who has sexual intercourse with his girlfriend approaching her 16th birthday, will be treated far less severely than a 50 year old male who stalks under-age girls on the internet and pays them for sexual intercourse with them.
The offence of secretly taking indecent photographs under a woman’s dress or skirt is of increasing prevalence in Hong Kong, particularly on the MTR. To address the issue the Department of Justice brings charges either for loitering, outraging public decency, disorderly conduct in a public place, or accessing a computer with dishonest intent, as there is no specific legislation making the act criminal. Our lawyers have experience with this offence and have successfully defended those charged for these acts. If a smartphone is used (rather than a conventional camera) the Prosecution will often look to the use of a computer with dishonest intent as a preferred charge.
Recent Developments: the Secretary for Justice has been granted leave to challenge the acquittals of 4 defendants acquitted of obtaining access to a computer with dishonest intent. The question of law involved can be found HERE. The scope of the offence will be examined in the context of 4 teachers leaking exam papers with their smartphones.The appeal will be heard on 26th February 2019.
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