OVERVIEW
Two related offences with distinct statutory elements.
The Crimes (Amendment) Ordinance 2021 added Part XIIAA to the Crimes Ordinance (Cap. 200) with effect from 8 October 2021. It created specific offences addressing voyeurism, upskirting and other non-consensual observation or recording of intimate parts.
Conduct commonly described as “upskirting” is principally addressed by section 159AAC. Section 159AAB covers broader forms of surreptitious observation or recording where the subject is in circumstances giving rise to a reasonable expectation of privacy. The precise charge depends on what was observed or recorded, how it was done, the purpose of the conduct and the evidence concerning consent.
Voyeurism is a relatively new offence created by the Crimes (Amendment) Ordinance 2021. It carries a maximum penalty of five years of imprisonment. The offence is made out if a person surreptitiously:
- observes, with or without the aid of equipment, or records an individual in a place in which any individual can reasonably be expected to be nude, to reveal an intimate part, or to be doing an intimate act;
- observes, with or without the aid of equipment, or records an intimate part of an individual, or an individual doing an intimate act, for the purpose of observing or recording an intimate part or an intimate act of any individual; or
- observes, with or without the aid of equipment, or records an individual for a sexual purpose.
Under section 159AAB(2) of the Crimes Ordinance, it is also an offence for a person to install or operate equipment, or construct or adapt a structure or part of a structure, for the purpose of enabling that person or another person to commit one of the three forms of voyeuristic observation outlined above.
Publication of images originating from the commission of voyeurism is also an offence under section 159AAD of the Crimes Ordinance and carries a maximum sentence of five years of imprisonment.
STATUTORY PROVISIONS
Sections 159AAB, 159AAC and 159AAD of the Crimes Ordinance (Cap. 200)
The relevant operative provisions state:
Section 159AAB — Voyeurism
(1) A person commits an offence if—
(a) the person surreptitiously—
(i) observes (with or without the aid of equipment) or records an individual in a place in which any individual can reasonably be expected to be nude, to reveal an intimate part, or to be doing an intimate act;
(ii) observes (with or without the aid of equipment) or records an intimate part of an individual, or an individual doing an intimate act, for the purpose of observing or recording an intimate part or an intimate act, of any individual; or
(iii) observes (with or without the aid of equipment) or records an individual for a sexual purpose;
(b) the individual who is being observed or recorded as described in paragraph (a)(i), (ii) or (iii) (subject individual) is in circumstances that give rise to a reasonable expectation of privacy; and
(c) the person disregards whether the subject individual consents to being observed or recorded by the person.
Section 159AAC — Unlawful recording or observation of intimate parts
(1) A person commits an offence if—
(a) the person—
(i) records an intimate part of an individual, in circumstances in which the intimate part would not otherwise be visible; or
(ii) with intent to observe or record an intimate part of an individual—
(A) operates equipment for the purpose of observing or recording an intimate part of the individual from beneath the clothing of the individual; or
(B) 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;
(b) the person engages in the conduct described in paragraph (a)(i) or (ii)—
(i) for a sexual purpose; or
(ii) dishonestly; and
(c) the person disregards whether the individual referred to in paragraph (a)(i) or (ii) consents to the person's conduct described in that paragraph.
Section 159AAD — Publication of images originating from voyeurism or unlawful recording
(1) A person commits an offence if—
(a) the person publishes an image of an individual (subject individual);
(b) the image originates from the commission of an offence under section 159AAB(1) or 159AAC(1) (specified offence); and
(c) the person—
(i) knows that the image originates from the commission of a specified offence, or is reckless as to whether the image originates from the commission of a specified offence; and
(ii) disregards whether the subject individual consents to the publication.
(2) For subsection (1)(b), it is immaterial whether the specified offence is committed by the person.
(3) For subsection (1)(c)(i)—
(a) the person is taken to know a specified offence has been committed if the person is aware of all the matters that must be established in order to prove the specified offence; and
(b) the person is taken to be reckless as to whether a specified offence has been committed if the person is reckless as to the existence of all those matters.
(4) A person who commits an offence under subsection (1) is liable on conviction on indictment to imprisonment for 5 years.
ELEMENTS OF THE OFFENCES
The prosecution must prove the elements of the offence.
The Act
The defendant must have observed, with or without the aid of equipment, or recorded another person. Depending on the charge, this may include observation with the naked eye or binoculars, or recording by photograph, video or other digital media.
The Intimate Act or State
The statutory wording refers to an “intimate act” rather than a “private act”. It includes a sexual act; using a toilet; undressing to a point at which an intimate part is exposed or covered only by underwear; or showering while an intimate part is exposed. The offence may also concern nudity or the revealing of an intimate part.
The Expectation of Privacy
For voyeurism under section 159AAB, the subject individual must be in circumstances giving rise to a reasonable expectation of privacy. This can include private premises such as bedrooms and hotel rooms, as well as restricted communal areas such as fitting rooms and public toilets, depending on the facts.
The Relevant Circumstances
The prosecution must prove the objective circumstances giving rise to the reasonable expectation of privacy. Section 159AAB does not state a separate element that the defendant knew, or that a reasonable person would have known, of that expectation; the precise mental requirements instead depend on the statutory route charged.
Prohibited Purpose
The required purpose depends on the charge. A section 159AAB route may require a purpose of observing or recording an intimate part or intimate act, or a sexual purpose. Section 159AAC requires the conduct to be for a sexual purpose or to be dishonest.
Consent
The defendant must have disregarded whether the subject individual consented to being observed or recorded. A person under 16, or a mentally incapacitated person within section 117(1), cannot give the consent described in Part XIIAA.
SECTION 159AAB(2)
Offence of Committing a Preparatory Act
Under section 159AAB(2), it is a standalone offence to install or operate equipment, or to construct or adapt a structure or part of a structure, for the purpose of enabling that person or another person to commit voyeurism. This can include fitting a pinhole spy camera into a bathroom vent.
The prosecution does not need to prove that footage was successfully taken. The preparatory act itself can complete the offence and carries the same maximum penalty of five years of imprisonment.
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.