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1. Upskirt photography

One of the most common forms of voyeurism is upskirting, the act of taking a photograph of underneath someone’s skirt without their consent. Given that these acts often involve the use of computer (which includes any electronic devices such as mobile phones and tablets), offenders are often charged with obtaining access to a computer with a view to dishonest gain for himself or another, contrary to section 161(1)(c) of the Crimes Ordinance (Cap. 200).

 

For an offence contrary to section 161(1)(c) of the Crimes Ordinance (Cap. 200), the maximum punishment is 5 years’ imprisonment.

 

In the recent decision by the Court of Final Appeal in HKSAR v Cheng Ka Yee & Ors, it was held that the offence of obtaining access to a computer with a view to dishonest gain for himself or another under section 161(1)(c) of the Crimes Ordinance does not apply to the use by a person of his or her own computer, not involving the access to another’s computer. This in turn means that a person who uses his or her own computer (regardless of being in a public or private place) to commit acts not involving access to another’s computer (i.e. through hacking) will not be liable for an offence under section 161.

 

The implication of the decision of HKSAR v Cheng Ka Yee & Ors is that a person using his smartphone to record or take photos of a woman’s skirt will not and cannot be prosecuted by the offence of section 161 because the person would be using his own device without involving access to another’s computer.

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