Hong Kong’s police chief is calling for a specific law in the city to fight ‘upskirt’ photo-taking after the top court ruled that the charge of “obtaining access to a computer for criminal or dishonest gain” is not applicable when a person uses his own device, i.e. a phone.
The top court handed down this landmark ruling this month when four teachers were accused of leaking entrance exam questions using their phones and computers. The teachers were found not guilty as a result.
The ruling presents challenges for prosecutors as this charge cannot apply to upskirting cases any more if the alleged perpetrator has used his own smartphone.
“If there are no better laws, we will try our best under the existing legal framework. If a case happens in a public space, we can use loitering and disorderly conduct in a public place to handle it,” says the Commissioner of Police, Mr. Stephen Lo Wai-chung.
“I hope ‘voyeuristic crime’ can be discussed in the Legislative Council as soon as possible,” Mr. Lo says.
Echoing this, the Secretary for Security, Mr. John Lee Ka-chiu, says he wants an anti-voyeurism law to come into reality soon and that the authorities are eager to pass new legislation accordingly.
But he also stresses that offences such as loitering, disorder in public places and outraging public decency under the current legal framework are still effective enough to tackle voyeuristic crime.
According to Hong Kong’s law, these three offences, respectively, can result in maximum penalties of: two years’ jail; a fine of $5,000 and imprisonment for 12 months; and imprisonment for seven years.
Concerns about a legal loophole also arise. If upskirting takes place on private premises, loitering and disorderly conduct in a public place cannot be used to sue the offenders.
In 2018, there were 301 cases of taking indecent photos in a public place in Hong Kong, and 243 people were arrested.
Last year, the Law Reform Commission’s Review of Sexual Offences Subcommittee published a report and called for an anti-voyeurism law. Acts of non-consensual observation or visual recording of another person for a sexual purpose could be criminalized.
The report says that the forms of visual recording can include photography, video recording and the taking of digital images.
The subcommittee took reference from the UK’s Sexual Offences Act. Article 67 concerning voyeurism says that a person commits an offence if an act is “for the purpose of obtaining sexual gratification”.
The UK made non-consensual voyeurism a criminal offense in 2004. And this year, under the Voyeurism (Offences) (No.2) Bill, upskirting has been made a criminal offence punishable by up to two years in prison.
In Singapore, technologically enabled voyeurs can face a maximum punishment of one year’s jail and a fine for “insulting a woman’s modesty”.
This year, the Southeast Asian country proposed the Criminal Law Reform Bill in an attempt to criminalize production, possession and distribution of voyeuristic recordings regardless of the victim’s gender.
Under the proposed new offence, offenders will be jailed for up to five years, with a possible fine and caning if the victim is below 14 years old. In other cases, offenders face discretionary imprisonment of up to five years, or a fine or caning, or any combination of the three.