E. Voyeurism

E. Voyeurism

Voyeurism often involves an act of non-consensual observation of another person or visual recording (such as photograph, videotape or digital image) of another person for a sexual purpose or pleasure.

Section 159AAB of the Crimes Ordinance (Cap. 200) introduced the offence of voyeurism to deal with peeping or clandestine photography in circumstances that give rise to a reasonable expectation of privacy. The offence came into effect on 8 October 2021.

Under section 159AAB, it is an offence to:-

1. surreptitiously observe or record

   • an individual where they can reasonably be expected to be nude, to reveal an intimate part, or to be doing an intimate act;

   • an intimate part of an individual, or an individual doing an intimate act, for the purpose of observing or recording any individual’s intimate part or intimate act; or

   • an individual for a sexual purpose.

2. in circumstances giving rising to a reasonable expectation of privacy for the individual being observed or recorded, and

3. disregard whether the person being observed or recorded consents to being observed or recorded.

The maximum penalty for this offence is 5 years' imprisonment.

Each case will depend upon its own facts though generally, a person will receive imprisonment for voyeurism offences.

1. Surreptitiously

In the context of the offence of voyeurism, “surreptitiously” would mean where a person observes or records the victim with the intent that the victim is not aware of what the person was doing.

This element is concerned with the person's intent at the time of the observation or recording, rather than the person's manner or conduct.

2. Intimate part and intimate act

The interpretation of 'intimate part' is defined under section 159AA of the Crimes Ordinance (Cap. 200) as an individual's genitals, buttocks, anal region or breasts (whether exposed or only covered with underwear), or an individual's underwear covering genitals, buttocks, anal region or breasts.

A person is doing an 'Intimate act' if the individual is using the toilet in a manner that an intimate part of the individual is likely to be revealed, or that the individual is doing a sexual act that is not of a kind ordinarily done in public.

3. Reasonable expectation of privacy

The Canadian Court in R v Jarvis [2019] 1 SCR 488 (SC, Canada) held that the entire context in which the act took place should be taken into account when considering what constitutes 'reasonable expectation of privacy'.  It proposed

the following non-exhaustive list of considerations:-

1. The location the subject individual was in;

2. The nature of the impugned conduct (whether it consisted of observation or recording);

3. The subject individual's awareness of or consent to potential observation or recording;

4. The manner in which the observation or recording was done;

5. The subject matter or content of the observation or recording;

6. Any rules, regulations or policies that governed the observations or recordings in question;

7. The relationship between the subject individual and the accused;

8. The purpose for which the observation or recording was done; and

9. The personal attributes of the subject individual, for example, whether the subject individual was a child or a young person may be relevant in certain contexts.

4. Sexual purpose

The interpretation of 'sexual purpose' in relation to a person under section 159AA of the Crimes Ordinance (Cap. 200) includes the stimulation or satisfaction of the sexual desire of any person.

5. Disregards

With reference to section 159AAH of the Crimes Ordinance (Cap. 200), a person 'disregards' whether consent is given by the subject individual if a person knows that the subject individual does not consent to the conduct, or if the person is reckless as to whether the subject individual consents to the conduct.