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2. Gross indecency by a person with a mentally incapacitated person

It used to be an offence contrary to section 118I of the Crimes Ordinance (Cap. 200) for a man to commit an act of gross indecency with another man who is a mentally incapacitated person. However, pursuant to Yeung Chu Wing v Secretary for Justice, the offence under section 118I is now gender-neutral and applies to both man and woman. In other words, it is an offence contrary to section 118I for a person to commit an act of gross indecency with another person who is a mentally incapacitated person.

 

The maximum penalty for the offence is 2 years imprisonment.

 

A mentally incapacitated person is a mentally handicapped or disordered person whose disorder or handicap makes that person incapable of living an independent life or guarding against serious exploitation.

 

A person who does not know and has no reason to suspect that the other person is mentally handicapped does not commit an offence under section 118I. Knowledge is a question of fact. The court will look at all the circumstances of the case, including anything the defendant says and the relationship between the parties, when considering whether knowledge is proved.

 

Gross indecency is not defined in the Crimes Ordinance (Cap. 200). It will be for the court to decide in each case whether there is gross indecency applying the standard of right thinking persons in contemporary society. This means the definition of gross indecency is flexible and reflects changing standards within society.

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