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Voyeurism Offence - The Origin and The Law Today
All Started from a School Interview
In June 2014, three primary teachers took photographs of the questions to be used in their primary school admission interviews with their own mobile phones and sent to a friend via WhatsApp to help the friend’s child to prepare for the interview. Later, the case was reported to ICAC and the four parties were charged with “Access to computer with criminal or dishonest intent” (hereinafter “Dishonest use of computer”), contrary to s.161 of the Crimes Ordinance.
In April 2019, the Court of Final Appeal concluded that “access to computer” was different from “use of computer” in the said case. “Access” suggested an unauthorised use of a computer. Any use by a person of his own computer did not involve “access”. The Court therefore acquitted the charges.
The ruling raised concern about the appropriateness of the charges with “dishonest use of computer”. It was inappropriate that people have been charged under section 161 for a wide spectrum of wrongful conducts whenever a computer was used in the course of the misconducts. An example was quoted in the judgement to elaborate that absurd consequences would happen if such an interpretation was adopted. Someone would be prosecuted with “dishonest use of computer” if he used a digital camera to secretly take upskirt shots of a lady in a private place but if he used a traditional film camera, he did not commit any offence.
The ruling revealed a huge legal vacuum – the authorities can rely on no ordinance to prosecute acts of upskirt photography in a private place.
The coverage of “voyeurism offence”
To plug the loopholes and combat voyeurism, unlawful recording and publication of intimate images without consent, the Crimes (Amendment) Ordinance 2021 (the Ordinance) was passed by the Legislative Council on September 30. The Ordinance has been published in the Gazette and came into effect on 8 October 2021, which covers:
- voyeurism, including peeping or clandestine photography
- unlawful recording or observation of intimate parts (to deal with “upskirting” and “down-blousing” photography)
- publication of images originating from voyeurism or unlawful recording of intimate parts
- publication or threatened publication of intimate images without consent (to deal with “revenge porn” and “deepfake porn”)
The Government seeks to achieve a deterrent effect and protect any possible victims. The said offences carry a maximum penalty of five years of imprisonment. The Ordinance also includes the arrangement of disposal orders, which allows the court to order any person (including social media or any other online platforms) to remove, delete or destroy relevant intimate images having regard to the circumstances, with a view to further protecting victims.
