OVERVIEW
Legal Framework
Section 118J of the Crimes Ordinance formerly criminalised grossly indecent acts between men otherwise than in private, including acts in which more than 2 persons took part or were present and acts in a public lavatory or bathhouse, with a maximum sentence of 2 years' imprisonment. In Yeung Chu Wing v Secretary for Justice [2019] 3 HKLRD 238, section 118J(1) was declared unconstitutional and struck down because it discriminated against male homosexuals.
Gross indecency is not defined in the Crimes Ordinance. Hong Kong courts have applied the common-law formulation that it involves a “marked departure from decent conduct”, as illustrated by R v Savage & Ors (No. 2) [1996] 4 HKC. Gross indecency with or towards a child under the age of 16 carries a maximum sentence of 10 years' imprisonment.
The abolition of Section 118J did not leave a legal vacuum regarding lewd conduct in public spaces. Instead, when non-consensual, highly offensive, or overtly scandalous sexual behavior occurs in the public eye, prosecutors rely on the gender-neutral common-law offense of Committing an Act Outraging Public Decency.
While statutory gross indecency under Section 146 focuses heavily on the vulnerability of the victim (such as minors) regardless of where the act occurs, Acts Outraging Public Decency focuses strictly on protecting public morality and the public sphere.To secure a conviction for outraging public decency, the prosecution must satisfy a distinct two-pronged criteria that differs from gross indecency:
The Nature of the Act: The conduct must be so lewd, obscene, or disgusting that a right-thinking member of society would consider it an outrage to public decency.
The Public Element: The act must take place in a venue where it is capable of being witnessed by members of the public, even if no one actually steps forward to complain.
Consequently, while the striking down of Section 118J ensured that consensual adult same-sex intimacy could no longer be selectively criminalized under the guise of gross indecency, any flagrant or offensive sexual conduct performed in public places—by individuals of any gender or orientation—remains prosecutable under the broader common-law charge of outraging public decency, which carries a maximum penalty of 7 years' imprisonment.
STATUTORY PROVISIONS
Section 146 of the Crimes Ordinance (Cap. 200)
The relevant part of the current statutory provision states:
Section 146(1) — conduct involving a child under 16
Subject to subsection (3), a person who commits an act of gross indecency with or towards a child under the age of 16, or who incites a child under the age of 16 to commit such an act with or towards him or her or another, commits an offence and is liable on conviction on indictment to imprisonment for 10 years.
Section 146(2) and (3) — consent and age
Consent by the child is not a defence to a charge under section 146. The statutory exception in subsection (3) applies where the accused was under the age of 16 at the time of the alleged offence.
LEGAL MEANING OF GROSS INDECENCY
The objective legal test and the latest Court of Final Appeal guidance.
R v Savage & Ors (No. 2) [1996] 4 HKC
Whether conduct is grossly indecent is determined objectively. The court asks whether right-minded members of the public, applying contemporary customs and standards, would regard the conduct as grossly indecent. The expression captures conduct representing a marked departure from decent conduct.
HKSAR v F.S.L. [2026] HKCFA 13
The Court of Final Appeal held that an intention to obtain sexual gratification is not an essential element of the section 146 offence. Sexual purpose may be relevant when deciding whether ambiguous conduct is grossly indecent, but the ultimate question remains whether right-minded members of the public, applying contemporary customs and moral standards and considering all the circumstances, would regard the act as grossly indecent.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.