F. Upskirt photography

F. Upskirt photography

Section 159AAC of the Crimes Ordinance (Cap. 200) introduced a new offence of “Unlawful recording or observation of intimate parts”, which deals with “upskirting” and “down-blousing” photography. This new offence came into effect on 8 October 2021.

Under section 159AAC of the Crimes Ordinance (Cap. 200), it is an offence to:

1. Engage in the following conduct:

   • record an intimate part of an individual where the intimate part would not otherwise be visible; or

   • with intent to observe or record an intimate part of an individual, operate an equipment

     • to observe or record an intimate part of the individual from beneath their clothing; or

     • in an unreasonable manner to observe or record an intimate part of the individual through an opening or a gap in the outer clothing of the individual,

in circumstances in which the intimate part would not otherwise be visible;

2. for a sexual purpose or dishonestly, and

3. disregard whether or not the person being recorded or observed consents to the conduct.

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 upskirt photography offences.

1. Intimate part

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.

2. 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.

3. Dishonestly

A person who observes or records intimate parts in a dishonest way would commit the offence if other elements of the offences are proven. In considering whether the defendant has engaged in the conduct dishonestly, the circumstances or manners in which the observation or recording is done, rather than the purpose of the observation or recording, constitute the relevant evidence. Each case will be dealt with on a case by case basis.

4. 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.