Criminalization of Voyeurism and ‘Upskirt Photography’ in Hong Kong: The Need for a Coherent Approach to Image-Based Abuse

Abstract

Many jurisdictions have enacted laws in recent years to criminalize the use of image-based technologies to non-consensually observe a person’s private parts or a person engaging in a private act (voyeurism), to record images of a person’s private parts (‘upskirt photography’), or to possess, disseminate, or threaten to disseminate intimate images (‘revenge pornography’). No such offences have yet been adopted in Hong Kong, and the 2019 decision of the Final Court of Appeal in Secretary for Justice v Cheng Ka Yee has closed the door on using the existing offence of access to computer with criminal or dishonest intent to prosecute some of these behaviours. In response, the Law Reform Commission of Hong Kong expeditiously prepared a report in 2019 calling for the enactment of offences to cover voyeurism and upskirt photography. The report does not, however, consider the need for offences to cover the related behaviour of non-consensually possessing, distributing, or threatening to distribute imitate images. This article, therefore, examines the need for, and advantages of, new offences to cover such behaviours. Based on a review of newly created offences in various Australian jurisdictions, England and Wales, and Singapore, a recommendation for reform in Hong Kong is developed.