III. Crimes relating to prostitution
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:
- 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
- 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
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:
- proof that the defendant was living with the prostitute;
- proof that the defendant was habitually in the prostitute’s company;
- 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.