XI. Peeping and secret filming
If you peep at or secretly film the private parts of other people, i.e. their genital or anal areas, whether bare or covered by underwear, depending on the particular circumstances of each case, you may commit the following offences:
A. Acts outraging public decency
Committing any act of a lewd, obscene or disgusting nature which outrages public decency, or is offensive or 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 in common law.
It must be proved that at least two people witnessed what happened and the offence must have been committed in a place where there was a real possibility that members of the general public might witness it. This does not mean that the very spot where the act is done must itself be a public place, but it must be a place where the public are able to see what takes place. Examples are the balcony of a flat which overlooks a public street, or a private room which opens onto a public area and whose door is left open.
The maximum penalty for this offence is seven years’ imprisonment and a fine.
B. Loitering causing concern
If you loiter in the common parts of a building and your presence there, either alone or with others, causes any person reasonably to be concerned for his/her safety or well-being, you commit an offence and are liable on conviction to imprisonment for two years ( section 160(3) of the Crimes Ordinance ( Cap. 200 )).
People are said to be loitering if they are idling, hanging about or remaining in or about the vicinity of a restricted, but not necessarily defined area, without any apparent purpose or reason.
Regarding this offence, "common parts", in relation to a building, means-
- any entrance hall, lobby, passageway, corridor, staircase, landing, rooftop, lift or escalator;
- any cellar, toilet, water closet, wash house, bath-house or kitchen which is in common use by the occupiers of the building; or
- any compound, garage, car park, car port or lane.
C. Access to computer with criminal or dishonest intent
Another charge that the prosecution may choose to prosecute for secret filming of another person’s private parts is access to computer with a view to dishonest gain for himself or another (section 161(1)(c) of the Crimes Ordinance (Cap. 200)).
In one case, the Court held a computer could be defined as any electronic device that is capable of receiving information (data) in a particular form and of performing a sequence of operations in accordance with a predetermined but variable set of procedural instructions (program) to produce a result in the form of information or signals.
This definition covers digital cameras and smartphones, which can be used to take photos and videos.
It does not matter whether the secret filming is done in a public or private place.
The person who commits this offence is liable to imprisonment for five years.
D. Disorder in public places
Any person who peeps at or secretly films another person’s private parts in a public place may be charged with the offence of behaving in a disorderly manner in a public place whereby a breach of the peace was likely to be caused.
Any person who, in any public place, behaves in a noisy or disorderly manner, or uses, distributes or displays any writing containing, threatening, abusive or insulting words with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, commits an offence and is liable on conviction to a fine of HK$5,000 and to imprisonment for 12 months (section 17B(2) of the Public Order Ordinance (Cap. 245)).
A “public place" means any place which, at the time, members of the public or any section of the public are entitled or permitted to have access, whether by payment or not, and, in relation to a meeting, includes any place which, for the purposes of such a meeting, is a public place. Examples are public toilets, public streets, public gardens and MTR stations.
“Disorderly” refers to “unruly or offensive behavior” or “violating public order or morality”. Whether or not conduct is characterised as disorderly must be a question of fact for the trial court. Examples of disorderly conduct are photographing under the skirt of a woman, or trying to do so, or peeping at a person who is using a toilet.
A breach of the peace occurs if harm is actually done or is likely to be done to a person; or in his presence to his property; or if a person is put in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance. The test is not whether an actual breach of the peace was caused, but rather whether a breach of the peace was likely to be caused, i.e. whether an average Hong Kong citizen is likely to be outraged by such conduct.
Whether a breach of the peace was likely to be caused depends on the circumstances of individual cases. However, generally speaking, taking into account the likely reaction of members of the public to a person photographing under the skirt of a woman, there is every likelihood of a breach of the peace being caused.