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I. Unlawful sexual activities

A. Unlawful sexual intercourse with a girl underage 13 years’ of age

Unlawful sexual intercourse with a girl under 13 years’ of age is an offence contrary to section 123 of the Crimes Ordinance ( Chapter 200 ). The maximum punishment is life imprisonment. Section 123 offences are more serious than section 124 offences, which deal with girls under 16 years’ of age, because of the younger age of the girls.

The offence is complete upon proof of sexual intercourse with a girl and proof that at the time of the sexual intercourse the girl was under 13 years of age. That the girl consented and/or that the defendant believed the girl was over 13 years’ of age are not defences to this charge. The offence is an absolute liability offence. The objective of the legislation is the protection of girls under 13 years of age. The emphasis is upon deterrence. Belief that the girl was over 13 and/or her consent to sexual intercourse may however be relevant to sentence, though the relevance may not be significant because of the emphasis upon the protection of extremely young girls.

B. Unlawful sexual intercourse with a girl under 16 years’ of age

Unlawful sexual intercourse with a girl under 16 years’ of age is an offence contrary to section 124 of the Crimes Ordinance ( Chapter 200 ). The maximum punishment is 5 years’ imprisonment.

The offence is complete upon proof of sexual intercourse and proof that at the time of the sexual intercourse the girl was under 16 years’ of age. That the girl consented and/or that the defendant believed the girl was over 16 years’ of age are not defences to this charge. The offence is an absolute liability offence. The objective of the legislation is the protection of girls under 16 years’ of age. These matters may however be relevant in mitigation of sentence.

C. Indecent assault

Indecent assault is an offence contrary to section 122 of the Crimes Ordinance ( Chapter 200 ). The maximum punishment is 10 years’ imprisonment.

An indecent assault is an assault coupled with circumstances of indecency. Some conducts are clearly indecent, for example, touching of the genitals without consent. However, other conducts such as the touching of buttocks or kissing may not always be clear-cut, and such matters as the relationship between the accused and the victim and the background and circumstances leading to the conduct may need to be considered. The prosecution must prove: (1) that the accused intentionally assaulted the victim; (2) that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; (3) that the accused intended to commit such an assault as is referred to in (2) above.

Consent is a defence to indecent assault. However persons under 16 years of age cannot consent to activity which amounts to an indecent assault. Any consent must be a true and informed consent. Consent obtained by a fraud or by deception as to the nature of the activity is not a true and informed consent. Whether or not there was consent is a question of fact and will depend upon the circumstances of the particular case.

D. Indecency with children under 16

It is an offence contrary to section 146 of the Crimes Ordinance ( Chapter 200 ) for a person to commit an act of gross indecency with or towards a child under the age of 16, or to incite a child under the age of 16 to commit such an act with or towards him or her. The offence is not gender specific and can be committed both by a man and by a woman.

The maximum penalty for this offence is 10 years’ imprisonment.

The act committed by the defendant must be grossly indecent. This means that the act or acts in question must be grossly indecent applying the standards of right thinking members of the community. “Gross indecency” is more than merely indecent. Whether the conduct is grossly indecent will depend upon the circumstances of the particular case.

A section 146 offence is committed either by the defendant doing a grossly indecent act towards the child or by inciting the child to commit a grossly indecent act with or towards the defendant. “Incite” means to “encourage”. Persons who invite or encourage the child to commit a grossly indecent act upon them commit an offence just as if they had done a grossly indecent act towards the child. Even though the defendant might remain passive during the activity, a section 146 offence is committed if the grossly indecent activity by the child upon the defendant follows invitation or encouragement by the defendant. An example would be where the defendant exposes his or her private parts and invites the child to touch those private parts.

It is immaterial whether the child consented to the acts which were done to him or her or agreed to the acts he or she was invited to do upon the defendant. Once the acts and the age of the child are proved, the defendant will be convicted.

E. Rape

Rape is committed by a man having non-consensual sexual intercourse with a woman. Section 118(3) of the Crimes Ordinance ( Chapter 200 ) provides that a man commits rape if:

  1. he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and
  2. at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.

The maximum penalty is life imprisonment.

In Hong Kong, rape can only be committed by a man upon a woman. A man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it and at the time he knows she does not consent or is reckless whether she consents or not. A woman who helps or encourages a man to rape a woman may be charged with aiding and abetting rape.

F. Offences relating to under-the-skirt photography

At present, there is no specific offence targeting the conduct of under-the-skirt photography. Depending on the circumstances, the prosecution may consider charging the accused with one of these three offences. Below is some brief explanation of these offences.

1. Loitering

It is an offence contrary to Section 160 of the Crimes Ordinance ( Chapter 200 ) to loiter in a public place or in the common parts of a building:

  1. with intent to commit an arrestable offence; or
  2. to willfully obstruct any person using the common place or the common parts of a building; or
  3. to cause any person in the public place or in the common parts of a building reasonably to be concerned for their own safety.

The maximum penalty for the offence is:

  1. for a) above 6 months’ imprisonment and a fine of $10,000;
  2. for b) above 6 moths’ imprisonment;
  3. for c) above 2 years’ imprisonment.

“Loitering” means hanging around, idling or lingering.

“Public place” includes streets, piers, gardens and places to which the public has or is permitted access.

“Common parts” of a building includes entrance halls, stairways, landings, rooftops, escalators and lifts.

2. Behaving in a disorderly manner in a public place

It is an offence contrary to Section 17B(2) of the Public Order Ordinance ( Chapter 245 ) to behave in a noisy or disorderly manner in a public place with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be caused.

The maximum penalty for the offence is 12 months’ imprisonment and a fine of $5,000.

There must be disorderly conduct. This is a question of fact in each case.

The conduct must be intended to provoke a breach of the peace or be likely to provoke a breach of the peace. Whether the conduct was intended to provoke a breach of the peace will be apparent from what was done, how it was done and what was said.

Whether the conduct was likely to provoke a breach of the peace will depend on all the circumstances. The question is not whether the defendant intends to provoke a breach of the peace but whether the conduct in question would so outrage right thinking members of society that they could be driven to take forcible action against the person carrying out the conduct. This will involve an examination of all the circumstances of the incident in question.

Attempting to photograph up the inside of a woman’s skirt has been held to be disorderly conduct. Conduct of that sort is likely to outrage right minded members of society and could lead to threats or violence against the photographer.

3. Acts Outraging Public Decency

In general, all grossly scandalous behaviour or behaviour that openly outrages indecency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the values of decency, morality and good order, is an offence at common law.

It must be proved that the act in question was of such obscene or disgusting character to be an outrage of public decency. Examples of such conduct include having sexual intercourse in a public area witnessed by members of the public, posting messages on the Internet to organize a “flash mob” rape, or video recording up the skirt of a female in a public place.

As the offence is a common law offence, the maximum penalty is 7 years imprisonment and a fine according to Section 101I of the Criminal Procedure Ordinance ( Chapter 221 ).

G. Procuring a girl under 21

It is an offence contrary to section 132(1) of the Crimes Ordinance ( Chapter 200 ) to procure a girl under 21 years’ of age to have unlawful sexual intercourse in Hong Kong or elsewhere with a third person.

The maximum penalty for this offence is 5 years’ imprisonment.

To “procure” is to produce or bring about by endeavour. There must be a causal link between what was done by the defendant and the unlawful sexual intercourse with a third person. There will be no “procurement” if the girl acted of her own free will. For example, there will be no procurement if a woman is already a prostitute.

H. Procuring an unlawful sexual act by threats or intimidation

It is an offence contrary to section 119 of the Crimes Ordinance ( Chapter 200 ) to procure another person by threats or intimidation to do an unlawful sexual act.

The maximum penalty for this offence is imprisonment for 14 years.

An unlawful sexual act is defined as:

  1. unlawful sexual intercourse;
  2. buggery or an act of gross indecency with a person of the opposite sex with whom that person may not have lawful sexual intercourse; or
  3. buggery or gross indecency with a person of the same sex.

The offence has no age requirement, nor is it gender specific. The threats or intimidation must bring about an unlawful sexual act. For example, threatening to tell others of previous sexual acts in order to have sexual intercourse or further sexual intercourse will breach section 119 . Another example would be threatening to post nude photographs if further intercourse is not consented to. Section 119 offences are often related to illegal money lending. The debtor who cannot repay what has been borrowed may be threatened or intimidated into performing sexual activity to settle the outstanding loan and interest. The borrower is literally forced into prostitution.

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