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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.

II. Child pornography

“Child” means a person under 16 years’ of age.

“Child pornography” is defined as any photograph, film, computer generated image or other visual depiction that is a pornographic depiction of a person who is or is depicted as being a child. Pornographic depiction means a visual depiction:

  1. of a person as being engaged in explicit sexual conduct, whether or not the person is in fact engaged in such conduct; or

  2. that depicts in a sexual manner or context the genitals or anal region of a person or the breast of a female person, but does not include a depiction for a genuine family purpose.

The pornography may be by electronic or other means, and includes data stored in a form that is capable of being converted into a photograph, film, image, such as a computer file.

It is an offence contrary to section 3 of the Prevention of Child Pornography Ordinance ( Chapter 579 ), for any person to:

  1. print, make, produce, reproduce, copy, import or export any child pornography,
    (The maximum penalty on conviction on indictment is a fine of $2,000,000 and imprisonment for 8 years; or on summary conviction a fine of $1,000,000 and imprisonment for 3 years);

  2. publish any child pornography,
    (The maximum punishment on conviction on indictment is a fine of $2,000,000 and imprisonment for 8 years; or on summary conviction a fine of $1,000,000 and imprisonment for 3 years);

  3. possess any child pornography (unless he or she is the only person pornographically depicted in the child pornography),
    (The maximum penalty on conviction on indictment is a fine of $1,000,000 and imprisonment for 5 years; or on summary conviction a fine of $500,000 and imprisonment for 2 years);

  4. publish or cause to be published any advertisement that conveys or is likely to be understood as conveying the message that any person has published, publishes or intends to publish any child pornography,
    (The maximum punishment on conviction on indictment is a fine of $2,000,000 and imprisonment for 8 years; or on summary conviction a fine of $1,000,000 and imprisonment for 3 years.)

A person “publishes” child pornography if he or she:

  1. distributes, circulates, sells, hires, gives or lends the child pornography to another person; or

  2. shows the child pornography in any manner whatsoever to another person, including publicly displaying the child pornography in any public street or pier, or public garden or any public place where the public are permitted to have access.

III. Crimes relating to prostitution

Prostitute

The word “prostitute” is defined by section 117(1) of the Crimes Ordinance ( Chapter 200 ), as referring to a person of either sex. A prostitute is a man or a woman who offers his or her body commonly for acts of lewdness in return for payment. Sexual intercourse is not a pre-condition for prostitution.

A. Soliciting for an immoral purpose

It is an offence contrary to section 147 of the Crimes Ordinance ( Chapter 200 ) to solicit in a public place or in the view of the public for an immoral purpose or to loiter in a public place for the purposes of soliciting for an immoral purpose.

The maximum penalty for this offence is a fine of $10,000 and imprisonment for 6 months.

A “public place” is:

  1. any place to which for the time being the public or a section of the public are entitled or permitted to have access, whether on payment or otherwise; and

  2. a common part of any premises notwithstanding that the public or section of the public are not entitled or permitted to have access to that common part or those premises.

The most straightforward example of soliciting for an immoral purpose in a public place is the prostitute who approaches persons in the street and offers sexual services in return for payment. Other, more sophisticated soliciting may involve advertisement on the Internet. The common factor is the active offering of sexual services in return for payment, giving the word “solicit” its usual meaning of asking for something. What is asked for is money, what is offered in return is sexual activity.

The standard for “immoral purpose” is the contemporary standard of morality. Soliciting for prostitution in a public place is soliciting for an immoral purpose. The words “immoral purpose” cover such acts as buggery and acts of gross indecency as well as sexual intercourse.

B. Causing or encouraging prostitution of girl or boy under 16

It is an offence contrary to section 135 of the Crimes Ordinance ( Chapter 200 ) for a person to cause or encourage the prostitution of, or an unlawful sexual act with a girl or boy under the age of 16 for whom that person is responsible.

The maximum punishment is imprisonment for 10 years.

“Prostitution” means a man or a woman offering his or her body commonly for acts of lewdness in return for payment. Prostitution does not require sexual intercourse though frequently that will occur. The essence of prostitution is the offer of the body for acts of lewdness in return for payment.

A person is responsible for the girl or boy if he or she is the parent or guardian of the girl or boy, has actual possession or control of the girl or boy, or has the custody, charge or care of the girl or boy.

The ordinary meaning of “encourage” is suggesting by words and/or by actions that something should happen. The prosecution must prove that the defendant actively encouraged the prostitution or the unlawful sexual act. This is a question of fact in each case. Prostitution may be caused or encouraged by knowingly allowing the boy or girl to consort with prostitutes or enter or continue in the employment of any prostitute or person of known immoral character. Allowing a girl or boy under the age of 16 for whom the defendant is responsible to work or to continue to work in premises where the defendant knows that prostitution or unlawful sexual acts take place would likely be seen as encouragement for the purposes of section 135 .

C. Living on earnings of prostitution

It is an offence contrary to section 137 of the Crimes Ordinance ( Chapter 200 ) to knowingly live wholly or in part on the earnings of prostitution of another.

The maximum penalty is imprisonment for 10 years.

The essence of the offence is knowingly receiving money from the acts of prostitution or knowingly being supported by the prostitute from the proceeds of that prostitution. The offence is sometimes referred to simply as “living on” which aptly describes the parasitic nature of the offence. The word “person” in section 137 confirms that the offence may be committed by a man or by a woman. Simply receiving money from a prostitute, for example as payment for food or accommodation supplied, is insufficient for a conviction under section 137 . The circumstances of the defendant’s relationship with the prostitute and the circumstances in which the payment was received from the prostitute must be considered. The prosecution must prove the defendant knew that he or she was living on wholly or partly the earnings of prostitution.

There are 3 distinct situations which the prosecution can rely upon when trying to prove an offence under section 137 . These are:

  1. proof that the defendant was living with the prostitute;
  2. proof that the defendant was habitually in the prostitute’s company;
  3. proof that the defendant exercised control, direction or influence over the prostitute’s movements in a way that showed he or she was aiding and abetting or compelling that prostitution.

In either or those circumstances the defendant is presumed to be knowingly living on the earnings of prostitution.

IV. Intellectual property offences and crimes on the Internet

A. Unauthorized access to a computer by telecommunications

Unauthorized access to a computer by telecommunications is an offence contrary to section 27A of the Telecommunications Ordinance ( Chapter 106 ).

Unauthorized access occurs, where the person accessing the computer is not the person entitled to control access to the computer, has no authorization to access the computer, does not believe either that he or she has that authority or that authority would have been given had it been applied for.

The intent of the person need not be directed at any particular or particular kind of programme or data, or a programme or data held in a particular computer.

B. Criminal damage

Criminal damage (“misuse of a computer” by altering data held in a computer) is an offence contrary to sections 59(1A) and 60(1) of the Crimes Ordinance ( Chapter 200 ).

Criminal damage occurs when a person without lawful excuse damages or destroys property belonging to someone else, intending to damage or destroy that property or being reckless whether that property is damaged or destroyed. Under section 59(1A) of the Crimes Ordinance ( Chapter 200 ), criminal damage includes “the misuse of a computer”.

Misuse of a computer means interfering with the function of a computer, altering or erasing any programme or data stored in the computer, or adding any programme or data to the contents of a computer.

C. Access to a computer with criminal or dishonest intent

“Access to a computer with criminal or dishonest intent” is an offence contrary to section 161 of the Crimes Ordinance ( Chapter 200 ).

Section 161(1) of the Crimes Ordinance ( Chapter 200 ) provides:
Any person who obtains access to a computer-

  1. with intent to commit an offence;
  2. with a dishonest intent to deceive;
  3. with a view to dishonest gain for himself or another; or
  4. with a dishonest intent to cause loss to another,

whether on the same occasion as he obtains such access or on any future occasion, commits an offence and is liable upon conviction on indictment to imprisonment for 5 years.

The test for dishonesty is applied by the court in the form of two questions: (1) whether the defendant's conduct would be regarded as dishonest by the ordinary standards of reasonable and honest people; and if the answer to (1) is "yes", then (2) whether the defendant knew that his conduct was so regarded. If the answer to (2) is also "yes", then the defendant's conduct would be regarded as dishonest under the law; whether or not the defendant himself considered his conduct as dishonest is irrelevant.

A gain or loss does not have to be economic. Section 161(2) of the Crimes Ordinance ( Chapter 200 ) states that "gain" and "loss" are to be construed as extending not only to a gain or loss of money or other property, but as extending to any sort of temporary or permanent gain or loss.

D. Offences in relation to making or dealing with infringing articles, etc.

Offences relating to making or dealing with infringing articles are set out in section 118 of the Copyright Ordinance ( Chapter 528 ). The more common offences can be found in section 118(1) which include, among other things, the following criminal activities:

  1. making infringing copies for sale or hire ( section 118(1)(a) );
  2. importing infringing copies into Hong Kong or exporting infringing copies from Hong Kong, for purposes other than private and domestic use ( section 118(1)(b), (c) );
  3. selling, hiring, offering or exposing for sale or hire infringing copies ( section 118(1)(d) );
  4. exhibiting in public or distributing infringing copies for the purpose of commercial dealings ( section 118(1)(e) );
  5. possessing infringing copies for the purpose of commercial dealings ( section 118(1)(f) );
  6. distributing infringing copies not for the purpose of commercial dealings but to such an extent as to affect prejudicially the economic interest of the copyright owner ( section 118(1)(g) ).

The maximum sentence for an offence under section 118(1) is a fine of $50,000 for each infringing copy and imprisonment for four years upon conviction on indictment .

These offences are targeted mainly at commercial dealings with infringing copies. However, it must be noted that any potentially large scale non-commercial distribution of copyright products (such as films and hit songs) is also a crime under section 118(1)(g) . In the "Big Crook" case ( Chan Nai Ming v HKSAR [2007] ), the Court of Final Appeal ruled that "distribution of copies" includes transmission of electronic copies on the Internet. Based on this ruling and the fact that the Internet enables unlimited number of copies to be made by downloaders, any unauthorised sharing of copyright products on the Internet is a crime in Hong Kong, whether or not the sharing is for monetary gain.

V. Intimidation and blackmail

A. Criminal intimidation

Criminal intimidation is an offence contrary to section 24 of the Crimes Ordinance ( Chapter 200 ).
The offence of criminal intimidation involves:

  1. threats of injury to the person, property or reputation of the person; or
  2. threats of injury to a third person (e.g. a family member) their property or reputation; or
  3. threats of any illegal act.

The threats must be intended to:

  1. alarm the person threatened or any other person;
  2. to cause the person threatened or any other person to do an act he or she is not legally bound to do; or
  3. to cause the person threatened or any other person to omit to do any act they are legally entitled to do.

There must be threats to injure the person, damage the property or reputation of the person to whom the threats are directed or someone close to them. Whether or not there is a threat is a question of fact in all the circumstances of the particular incident. The threat must be made with the intention to alarm the person to whom the threats are directed or to cause that person to do something he or she is not legally required to do or not to do something he or she is legally entitled to do. Whether or not the threat is made with the necessary intent is again a question of fact in all the circumstances of the particular incident.

It is, for example, an offence to hawk without a licence. An illegal hawker may be arrested. The penalty the illegal hawker faces upon conviction includes forfeiture of the goods being hawked and the apparatus being used in the hawking. A hawker control officer attempting to seize the goods and apparatus of an illegal hawker may be threatened with injury unless he or she refrains from seizing the goods and apparatus. This is criminal intimidation: there is the threat of personal injury. The intention is to frighten the hawker control officer into failing to do his or her duty of seizing the goods and apparatus used in the illegal hawking. A variation on the theme would be if the illegal hawker threatened to set fire to the officer’s home or chop a family member unless the officer refrained from seizing the goods and the hawking apparatus. In situations such as these, a court would likely have little difficulty in finding, as a fact, the hawker had the intent required by section 24 of the Crimes Ordinance ( Chapter 200 ).

B. Blackmail

Blackmail is an offence contrary to section 23 of the Theft Ordinance ( Chapter 210 ).

Blackmail is making any unwarranted demand with menaces. The demand must be made with a view to gain or with intent to cause loss to another person. Menaces simply mean threats. A demand with menaces is unwarranted unless the person making the demand believes he or she has reasonable grounds for making the demand and that the use of the menaces is a proper means of reinforcing the demand.

Blackmail is generally used where the victim is asked to pay money, for example, for the return of photographs of engaging in illicit sexual activities. The menaces are the threat to reveal the photographs, for example, to the victim’s spouse, unless money is paid for the photographs. The nature of the act or omission demanded is however immaterial. The issue is whether there has been an unwarranted demand with menaces with a view to gain or with intent to cause loss.

VI. Violence offences

A. Assault and battery

An assault is an intentional or reckless action which brings about the apprehension of the immediate infliction of unlawful force in the mind of the person to whom the action is directed. Words may amount to an assault if the words bring about an apprehension of the immediate application of force in the person to whom the words are addressed.

Aiming a punch at someone is an assault, even if the punch does not land upon that person. The punch brings about the apprehension of the immediate application of unlawful force. It is an act of hostility without any lawful justification. If the punch lands upon the intended victim, that is, in law, a battery.

A battery is the intentional or reckless touching of another person without that person’s consent. Unlawful force has been inflicted upon the victim. For convenience the word “assault” covers conduct which amounts to a battery. There may however be a battery without an assault. A person struck from behind is unaware of what is happening until the blow lands: there is no apprehension of the immediate application of unlawful force.

B. Assault occasioning actual bodily harm (AOABH)

Assault occasioning actual bodily harm (AOABH) is an offence contrary to section 39 of the Offences Against the Person Ordinance ( Chapter 212 ).

AOABH is an assault which brings about actual bodily harm. The prosecution must first of all prove all the factual and legal elements of the offence of assault. There must then be evidence that the assault brought about actual bodily harm. This involves issues of fact and causation. Actual bodily harm need not be serious or permanent. A punch which, for example, results in bruising or a broken tooth has caused actual bodily harm.

C. Wounding and inflicting grievous bodily harm with intent

Wounding and inflicting grievous bodily harm with intent is an offence contrary to section 17 of the Offences Against the Person Ordinance ( Chapter 212 ).

An offence contrary to section 17 is committed where a person:

  1. unlawfully and maliciously, by any means whatsoever, wounds or cause grievous bodily harm to any person; or
  2. shoots at any person; or
  3. by drawing a trigger or in any other manner, attempts to discharge any kind of loaded arms at any person,

with intent to maim, disfigure or disable any person or to do some other grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person.

A wound is where the skin is evenly divided. A burn or a bruise is not a wound as the skin is not evenly divided. An internal injury, for example a ruptured kidney, is not a wound though it may well amount to grievous bodily harm. Grievous bodily harm is harm which is really serious and can include psychiatric injury. Whether or not there is grievous bodily harm is a question of fact in each case.

Section 17 charges are brought where the incident is serious, for example, a planned attack using weapons or the attack results in serious injury, for example, serious chop wounds, or serious internal injuries.

Section 17 offences require an ulterior intent: the intent to do grievous bodily harm to any person and the intent to resist or prevent the lawful apprehension or detain of any person. The prosecution must first prove the actus reus (guilty act). That is inflicting a wound or causing grievous bodily harm. There prosecution must then prove the accused did this with intent to cause grievous bodily harm and/or with intent to resist or prevent the lawful apprehension or detainer of any person.

D. Wounding or inflicting grievous bodily harm

Unlawful and malicious wounding or inflicting any grievous bodily harm is an offence contrary to section 19 of the Offences Against the Person Ordinance ( Chapter 212 ).

There are two offences under this section: i) inflicting serious bodily harm and ii) wounding.

There must be a wound or serious bodily harm which can include psychiatric injury. That wound or serious bodily harm must have been inflicted by the defendant. “Inflicted” means “caused”. The action which causes the wound or the serious bodily harm must have been done intentionally or recklessly. There is no requirement under section 19 for any ulterior intent. Provided the wound or the serious bodily harm was caused by the defendant's unlawful act and that act was done intentionally or recklessly the requirements of section 19 are satisfied.

E. Fighting in public

Taking part in an unlawful fight in public is an offence, contrary to section 25 of the Public Order Ordinance ( Chapter 245 ).

A "public place" is any place to which for the time being the public or any section of the public are entitled or permitted to have access, whether on payment or otherwise.

The word “fight” must be given its ordinary meaning and involves an equality of aggression.

Persons defending themselves against an attack are not in an equality of aggression situation.

It does not matter who started the fight, who won the fight or what it was about provided there is an equality of aggression. Whether there was or was not a fight depends upon all the circumstances of the particular case.

An agreement to fight in public to settle differences does not make the fight lawful. A properly licensed and supervised boxing match in a public park is however a different matter.

VII. Triad related offences

A. Claiming to be a member of a triad society

Claiming to be a member of a triad society is an offence contrary to section 20 (2) of the Societies Ordinance ( Chapter 151 ).

It is an offence to claim or profess membership of a triad society. A claim of membership of a triad society is often made in blackmail and criminal intimidation situations. The question is whether as fact the defendant has by words and/or gestures asserted membership of a triad society active in Hong Kong. This will involve an examination of what was said or done and how it was said or done. Expert evidence may be needed on the context and meaning of words or gestures used. There is no need to prove that the person professing or claiming to be a member of a triad society is in fact a member. Being a member of a triad society is itself an offence under section 20 (2) of the Ordinance.

B. Possession of offensive weapon in public place

Possession of offensive weapon in public place is an offence contrary to section 33 of the Public Order Ordinance ( Chapter 245 ).

Section 33 makes it an offence for any person to have an offensive weapon with them in a public place without lawful authority or reasonable excuse. The objective of this offence is to prevent offensive weapons being brought into public places.

An "offensive weapon" is any article made, or adapted for use, or suitable, for causing injury to the person, or intended by the person having it in their possession or under their control for such use by them or by some other person.

A "public place" is any place to which for the time being the public or any section of the public are entitled or permitted to have access, whether on payment or otherwise.

The emphasis is on the possession of an offensive weapon: there is no need for the weapon to have been used to commit any offence. Whether or not the item in question is an offensive weapon is a question of fact. What is, or is not lawful authority or reasonable excuse depends upon the circumstances of each case and why the defendant had that item in the public place at the particular time. An excuse such as carrying the weapon in case I was attacked is neither lawful authority nor reasonable excuse.

Courts have a limited sentencing discretion under section 33 . A person convicted under section 33 shall (which means “must”):

  1. if under 14 years of age be dealt with in accordance with the provisions of the Juvenile Offenders Ordinance ( Chapter 226 );
  2. if not less than 14 years of age and under 17 years of age be sentenced either to imprisonment for not more than 3 years, or to a Detention Centre or to a Training Centre or to a Rehabilitation Centre;
  3. if not less than 17 years of age and under 25 years of age be sentenced either to imprisonment for not more than 3 years or to a Detention Centre or to a Rehabilitation Centre;
  4. if aged 25 years or more be sentenced to imprisonment for not more than 3 years.

C. Possession of offensive weapon with intent

Possession of offensive weapon with intent is an offence contrary to section 17 of the Summary Offences Ordinance ( Chapter 228 ).

Under section 17 it is an offence to have possession of any wrist restraint or other instrument or article manufactured for the purpose of physically restraining a person, any handcuffs or thumbcuffs, any offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with intent to use the same for any unlawful purpose.

It is a question of fact whether a defendant has possession of any of the specified items. The meaning of offensive weapon is the same in section 17 of the Summary Offences Ordinance ( Chapter 228 ) as in section 33 of the Public Order Ordinance ( Chapter 245 ). Section 17 requires a specific intent to use the item for an unlawful purpose. Possession of a wooden stick intending to use it to attack someone is possession for an unlawful purpose. Whether there is intent to use the item for an unlawful purpose depends upon the circumstances of the particular case. The court will look at the nature of item, the circumstances of possession, what was said or done before, during and after the incident giving rise to the charge when considering whether or not there was intent to use the item for an unlawful purpose.

The maximum penalty under section 17 is a fine of $5,000 or imprisonment for 2 years. The court has a far wider sentencing discretion under section 17 than it has for possession of an offensive weapon in a public place contrary to section 33 of the Public Order Ordinance ( Chapter 245 ).

D. False imprisonment

False imprisonment is an offence contrary to common law.

The victim’s right to leave the place where he or she is must be totally and unlawfully taken away. It is not false imprisonment to stop a person going in a particular direction if they can go in another direction.

Whether or not a person’s right to leave the particular place has been totally and unlawfully taken away is a question of fact in each case. False imprisonment often involves the use of force and confinement within a defined structure but neither of these are requirements. The issue is simply whether the person’s right to leave the place where they are has been totally and unlawfully taken away. False imprisonment is a question of fact. A person taken by a gang to a hillside and kept there because members of the gang surround him/her and prevent him/her leaving is just as much imprisoned as if he or she was locked in a room.

E. Aiding and abetting the commission of an offence

Aiding and abetting the commission of an offence is an offence contrary to section 89 of the Criminal Procedure Ordinance ( Chapter 221 ).

The person who actually commits the criminal offence is referred to as the principal. Other persons who participate in the criminality by aiding and abetting, counselling or procuring the criminality are referred to as secondary parties or accomplices. Secondary parties are guilty of the same offence as the principle who actually commits out the offence.

Aiding is giving help, support or assistance to the principal offender and generally takes place at the scene of the crime. Abet means inciting or encouraging the principal offender and also involves presence when the offence is committed.

Counselling is help given to the principal offender before the offence is committed. It can take the form of advice, information or the supply of equipment which is used in the offence.

Procuring means producing by endeavour, that is causing or bringing about the offence by the principal offender. Procuring involves taking the necessary steps to bring something about. There is no need for encouragement but there must be a causal link between the act of the secondary party and the offence which is committed. An example might be surreptitiously lacing a friend’s soft drink with alcohol knowing the friend will be driving home. If the friend drives home and on the way fails a breath test and is subsequently convicted under section 39A (1) of the Road Traffic Ordinance ( Chapter 374 ) for driving with an alcohol level above the prescribed limit, the person who laced the drink may face a charge of procuring that offence. Lacing the soft drink with alcohol brought about the offence the principal committed.

Mere presence at a crime scene is not enough for liability as accomplice. However if a bystander encourages the principal offender, for example by shouting out to a person who is attacking another person “Hit him again” or “Kick him”, the bystander is no longer simply a bystander but is encouraging the attacker.

The mens rea (guilty mind) for secondary parties is (i) intention to do the act knowing it was capable of assisting or encouraging the commission of the crime, and (ii) knowing the principal will commit a crime of a certain type. The prosecution must prove the intention to do the acts of assistance or encouragement, recklessness as to whether the principal will commit the crime is not sufficient mens rea for a secondary party.

VIII. Offences relating to dishonestly

A. Theft

Theft is an offence contrary to section 9 of the Theft Ordinance ( Chapter 210 ). It involves the dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it.

The word “appropriates” simply means treating someone else’s property as your own to do what you like with.

The words “belonging to another” mean that the property belongs to someone other than the person who takes it.

To amount to theft, the taking of someone else’s property must be dishonest and with the intention to permanently deprive that person of their property. A person is dishonest if right thinking members of society would consider that what the taker did was dishonest and the taker realised that what was being done was dishonest according to that standard. This is what is known as “the Ghosh test” from the leading authority R v Ghosh , a decision of the English Court of Appeal in 1982. Ghosh remains good authority for the law of theft in Hong Kong.

B. Burglary

Burglary is an offence contrary to section 11 of the Theft Ordinance ( Chapter 210 ). It is committed where a person enters a building or part of a building as a trespasser with intent to steal anything inside the building or part of a building, inflicting grievous bodily harm on any person therein, raping any woman therein or intending to do any unlawful damage to the building or anything therein.

Burglary is also committed where a person who has entered a building or any part of a building as a trespasser steals or attempts to steal anything inside the building or the part of a building or inflicts or attempts to inflict grievous bodily harm on any person therein.

Entry as a trespasser simply means intentionally going into a building or a part of a building without the permission of the owner or occupier of the building or without any lawful right to enter.

Whether the place entered is a building or part of a building is a question of fact in each case. A customer in a shop who goes into a part of a shop marked “Private” or “Staff Only” enters that area as a trespasser. A customer only has permission to enter the public area of the shop.

C. Making off without payment

Making off without payment is an offence contrary to section 18C of the Theft Ordinance ( Chapter 210 ). It is committed where a person forms a dishonest intent to avoid payment after goods or services have been received. This would include leaving a restaurant without paying, leaving a taxi without paying the fare or filling up with petrol at a self-service petrol station then leaving without paying for the petrol. In these situations the supplier of goods or services expects payment for the goods or services after they have been supplied and before the person who has received them leaves the place of supply. If the person who has received the goods or services makes off, which means leaves the place where payment was expected, dishonestly intending to avoid payment, the offence is complete.

The dishonesty required is the same as for theft. The difference between theft and making off is that in theft the dishonest intent must be present when the goods are appropriated whereas in making off the dishonest intent arises after the goods or services have been received. A motorist might intend to pay for petrol at a self-service station when he/she starts to fill the car’s tank but then, noticing there is a queue at the payment point, takes the opportunity to drive off to avoid queuing and paying for the petrol. He/she is guilty of making off without payment but not theft.

D. Handling stolen goods

Handling stolen goods is an offence contrary to section 24 of the Theft Ordinance ( Chapter 210 ). It is committed where a person knowing or believing the goods to be stolen goods dishonestly receives them, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.

Handling involves dealing with goods which have been stolen, knowing or believing them to be stolen. Handling is action after the theft, by a person other than the thief, which helps the thief. Examples include buying goods from the thief knowing or believing them to be stolen or looking after stolen property whilst the thief finds a buyer for those goods.

Dishonesty in handling has the same meaning as in theft. There must be proof that the goods in question had been stolen. Whether a person knows or believes the goods in question to be stolen goods is a question of fact in each case, which needs to be proved by the prosecution beyond reasonable doubt.

E. Obtaining property by deception

Obtaining property by deception is an offence contrary to section 17 of the Theft Ordinance ( Chapter 210 ). It is committed where property belonging to another person is dishonestly obtained from that person by deception with the intention of permanently depriving that person of the property. The offence involves telling lies which persuades someone to hand over property when, had they known the true situation, they would not have done so. An example would be using a stolen credit card or a credit card which has been cancelled by the bank, to obtain goods from a shop. Using the credit card is making a promise to the shopkeeper that the card can safely be accepted and will result in payment for the goods. Had the shopkeeper known the true position, the credit card would not have been accepted as payment for the goods. The shopkeeper is the victim of a deception. The person using the card intends to permanently deprive the shopkeeper of the goods. The goods have been dishonestly obtained by deception.

F. Obtaining services by deception

Obtaining services by deception is an offence contrary to section 18A of the Theft Ordinance ( Chapter 210 ). It is committed where services are dishonestly obtained. The offence involves inducing a person to confer a benefit by doing an act, or causing or permitting an act to be done on the understanding that the benefit will be paid for, whilst intending not to pay. An example might be getting someone to provide a service, for example painting a house on a promise of payment when the painting has been completed, whilst all the time intending not to pay. The person providing the service is dishonestly deceived into providing the service.

IX. Drug cases

A. Possession of dangerous drugs

Possession of dangerous drugs is an offence contrary to section 8 of the Dangerous Drugs Ordinance ( Chapter 134 ). It is committed where a person has dangerous drugs in his/her possession or has smoked, inhaled, ingested or injected dangerous drugs. The prosecution must prove the person knew he/she was in possession of dangerous drugs. Physical possession is not required, provided the prosecution can show the drugs were under that person’s control. This would cover the situation where a person stores drugs at a friend’s house until he/she wants to consume them.

B. Trafficking in dangerous drugs

Trafficking in dangerous drugs is an offence contrary to section 4 of the Dangerous Drugs Ordinance ( Chapter 134 ). It is committed where a person brings dangerous drugs into Hong Kong or causes them to be brought in, takes dangerous drugs out of Hong Kong or causes them to be taken out, supplies dangerous drugs to another person or offers to do so or possesses dangerous drugs for the purposes of supplying them to another person.

Bringing drugs into Hong Kong or taking dangerous drugs out of Hong Kong is trafficking in dangerous drugs even if the drugs are for self-consumption. If the court accepts that those drugs are for self-consumption a lower penalty will be imposed upon conviction.

Trafficking is committed by supplying or offering to supply drugs to another person. There is no requirement for a commercial transaction. Giving dangerous drugs to a friend as a gift, or sharing drugs with a friend, is just as much trafficking as selling those drugs to a stranger: drugs are supplied.

Severe penalties are imposed upon those who bring drugs into Hong Kong, particularly where they are brought in for sale to others. The maximum punishment is life imprisonment. Prison sentences can be expected even for relatively small amounts of drug. Young age and a previous clear record will count for very little, particularly where the trafficking involves a commercial element.

As an example of likely sentences, a person who traffics between 10 to 50 grammes of ketamine can expect a prison sentence of between 4 to 6 years upon conviction after trial. A person who traffics between 300 to 600 grammes can expect a prison sentence of between 9 to 12 years imprisonment upon conviction after trial.

C. Driving a motor vehicle under the influence of drink or drugs

Driving a motor vehicle under the influence of drink or drugs is an offence contrary to Section 39 of the Road Traffic Ordinance ( Chapter 374 ). It is committed where a person drives a motor vehicle on a road when under the influence of drink or drugs to such an extent he/she is incapable of having proper control over the vehicle. Whether this is so will depend on the circumstances of the particular case.

FAQ

1. What are the possible penalties for bringing dangerous drugs to Hong Kong?

Severe penalties are imposed upon those who bring drugs into Hong Kong, particularly where they are brought in for sale or transfer to others. The maximum punishment is life imprisonment. Prison sentences can be expected even for relatively small amounts of drug. Young age and a previous clear record will count for very little, particularly where the trafficking involves a commercial element.

As an example of likely sentences, a person who traffics between 10 to 50 grammes of ketamine can expect a prison sentence of between 4 to 6 years upon conviction after trial. A person who traffics between 300 to 600 grammes can expect a prison sentence of between 9 to 12 years imprisonment upon conviction after trial.

There will normally be a one-third discount in the term of imprisonment if the defendant pleads guilty. Where a defendant is young a Training Centre, Rehabilitation Centre or Detention Centre order could be made depending upon the nature, quantity and value of the drugs and the defendant’s suitability for one or other of those orders. However the courts have made it clear that youth and/or a clear record will not normally shelter a young offender from imprisonment for trafficking in drugs. This is because of the danger that organised drug traffickers will use young persons to bring drugs into Hong Kong unless appropriately severe sentences are imposed.

For more details, please go to Child and Youth Affairs > Crimes commonly committed by young people > Drug cases > B. Trafficking in dangerous drugs .

2. Have I committed any offences by accessing another’s emails/Facebook without permission?

If you know that the other person would not have consented your accessing of his/her email/Facebook account, you commit the offence of “unauthorized access to a computer by telecommunications” contrary to section 27A of the Telecommunications Ordinance ( Chapter 106 ). The maximum penalty for the offence is a fine of $20,000. You may also commit the offence of “accessing to computer with criminal or dishonest intent” contrary to section 161(1)(c) of the Crimes Ordinance (Cap. 200) with you accessed the computer with a view to dishonest gain for yourself or another, or with a dishonest intent to cause loss to another. The maximum penalty for the offence is 5 years’ imprisonment.

To know more about these two offences, please visit Child and Youth Affairs > Crimes commonly committed by young people > Intellectual property offences and crimes on the Internet .

3. A girl claimed that she was 17 years old. I genuinely believed her and had sexual intercourse with her. In fact, her actual age was 15. Have I committed any offence?

You have committed the offence of “unlawful sexual intercourse with a girl under 16” contrary to section 124 of the Crimes Ordinance ( Chapter 200 ). The maximum penalty for the offence is 5 years imprisonment.

Once it is proved that you had sexual intercourse with the girl and she was under 16 years of age at that time, you are guilty of the offence. The girl’s factual consent is irrelevant because she is under 16. Your belief that she was 17 is similarly irrelevant. The offence is having sexual intercourse with a girl under 16 years of age and that is what you have done.

For more about the offence, please visit Child and Youth Affairs > Crimes commonly committed by young people > Unlawful sexual activities > B. Unlawful sexual intercourse with a girl under 16 years’ of age .

4. Under what circumstances my conviction can be “spent”?

Under the provisions of the Rehabilitation of Offenders Ordinance ("RHO") (Cap. 297), a person’s first-time conviction record for a relatively minor offence can be spent (i.e. can practically be ignored, subject to some exceptions, after three years. Subject to certain exceptions, Subject to certain exceptions, the conviction of a person who is not sentenced to imprisonment exceeding three months, whether that sentence takes effect immediately or is suspended, or to a fine exceeding $10,000, and who has not previously been convicted in Hong Kong of any offence will be treated as spent once three years has elapsed without another conviction for an offence in Hong Kong.

When a conviction has become "spent" under the RHO, offenders can, subject to exceptions set out in the RHO, claim not to have a criminal record, and the spent conviction cannot be held against them.

For more about criminal records and Rehabilitation of Offenders Ordinance, please visit the YouthCLIC website: YouthCLIC > Useful Info > Criminal records and the Rehabilitation of Offenders Ordinance .

5. What is a juvenile court? What are the differences between a juvenile court and an adult court?

According to section 3A of the Juvenile Offenders Ordinance , the juvenile court consists of a permanent magistrate, and has the jurisdiction to hear and determine any charge against a “child” or “young person” of any offence other than homicide.

“Child” is defined as a person under 14 years of age. “Young person” is defined as a person aged 14 years and under the age of 16 years. It should also be noted that no child under the age of 10 can be guilty of a criminal offence. However they may be subject to care and protection proceedings as pursuant to the Protection of Women and Juveniles Ordinance ( Chapter 213 ).

The major differences between an adult court and a juvenile court include:

  1. The juvenile court is not open to the public.
  2. A juvenile’s parent or guardian shall accompany the juvenile at all stages of the court proceedings, unless the court otherwise orders.
  3. No person shall publish any written report or broadcast a report which would lead to the identification of any juvenile in the proceedings. This includes restricting the publishing of the name, address, or school of the juvenile.

For more about juvenile court, please visit the YouthCLIC website: YouthCLIC > Useful Info >Juvenile Court .

6. What are Detention Centre Order, Training Centre Order and Rehabilitation Centre Order?

Detention Centre Order, Training Centre Order and Rehabilitation Centre Order are alternatives to imprisonment.

Detention Centre Orders are for male offenders only from the age of 14 to 24. Emphasis is placed on hard physical labour and discipline in order to administer a short sharp shock on the offender so that he will not re-offend again. The period of detention will be decided by the Commissioner of Correctional Services, who will consider the conduct of the offender during detention. For offenders aged between 14 and 20, the minimum period of detention is one month and the maximum is 6 months. For offenders aged between 21 and 24, the period of detention is from three months to 12 months.

Training centres emphasises on rehabilitation, and offenders are trained in a trade. They are suitable for both male and female offenders aged from 14 to 20.  The period of detention will be decided by the Commissioner of Correctional Services, who will consider the conduct of the offender during detention. The minimum period of detention is six months and the maximum is three years.

Rehabilitation Centre Orders are suitable for both male and female offenders aged 14 to 20. The objectives are to deter further criminal conduct and to rehabilitate detainees in terms of socially acceptable behaviour. The offenders will first be detained full time at a rehabilitation centre for a period between two months and five months, to be determined by the Commissioner of Correctional Services by considering the conduct and progress of the offenders. Then they will be subjected to a period of residence at another rehabilitation centre when they may be permitted to go out during certain hours to study, work or do other approved activities. The period of residence is between one month and four months, to be determined by the Commissioner of Correctional Services by considering the needs and progress of the offenders.

Upon release from detention centres/ training centres/ rehabilitation centres, the offenders may be subjected to supervision for a period of time when they need to obey certain requirements. Failure to comply with the supervision requirements may result in the offenders being sent back to the respective centres.

For more details about different punishment and sentencing options imposed by courts, please visit the YouthCLIC website: YouthCLIC > Useful Info > Punishment and sentencing options .

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