Legislation protecting women against violence

1. The Offences against the Person Ordinance (Cap. 212) imposes criminal sanctions for wounding or inflicting grievous bodily harm, assault occasioning actual bodily harm, common assault, forcible taking or detention of persons, and wilful assault, ill-treatment, neglect or abandonment of a child, etc. The Crimes Ordinance (Cap. 200) imposes criminal sanctions for criminal intimidation, rape (including marital rape), incest, procuring unlawful sex by threat or false pretences, indecent assault, unlawful sexual intercourse with a girl under 16, trafficking in persons to or from Hong Kong for the purpose of prostitution, controlling over another person for the purpose of unlawful sexual intercourse or prostitution, procuring a girl to have unlawful sexual intercourse with a third person, using, procuring or offering another person under 18 for making pornography or for a live pornographic performance, etc.
2. The conviction rate of offenders in domestic violence cases has risen from 29.6% in 2013 to 43.1% in 2017. Amongst the offenders convicted in 2017, 33.9% were sentenced to immediate imprisonment and 28.4% were sentenced to suspended imprisonment. The success of a prosecution depends on many factors. A prosecution may fail if the victim (who may be the only witness who can testify to the commission of the offence) is unwilling to give evidence in court.
3. As for civil remedies, apart from damages and injunctions for the tort of trespass to the person, the Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189) provides injunctive relief to victims of domestic violence which protects them from molestation. The scope of this Ordinance covers spouse, former spouse and their children; cohabitants and former cohabitants, whether of the same sex or of the opposite sex, and their children; as well as immediate and extended family members.
4. In respect of the progress in taking forward the LRC’s report on stalking as mentioned in paragraph 5.21 of the previous report, the Government issued a “Consultation Paper on Stalking” in December 2011, and the consultation ended in March 2012. In 2013, the Government commissioned a Consultant to study the anti-stalking legislation of overseas jurisdictions, and subsequently sought stakeholders’ views on the Consultant’s research findings and recommendations. At the LegCo Panel on Constitutional Affairs meeting in December 2013, some members expressed strong reservations on the introduction of anti-stalking legislation in Hong Kong, while some considered that the introduction of such legislation would interfere with news reporting activities and hamper press freedom, and therefore counter-proposed that a “specified relations” approach where legal protection is provided for a few specified types of victims should be further explored.
5. As the “specified relations” approach does not treat all victims of stalking on an equal basis, it was not supported by stakeholders including those from the legal sector. In the end, no proposal received general support by the public.
6. Notwithstanding, since the publication of the LRC report on stalking, a number of measures have been introduced to enhance the protection from harassment, for example by expanding the scope of the Domestic and Cohabitation Relationships Violence Ordinance in 2010 such that cohabitants and former cohabitants are protected from harassment.
7. Some commentators have urged the Government to enhance the legal protection of women from clandestine photo-taking. Although there is no specific legislation in Hong Kong dealing with clandestine photo-taking, such conduct is already prohibited by our criminal law and, depending on the facts of the cases, civil remedies are available to the victims.
8. Clandestine taking of indecent photos in a public place may be prosecuted for loitering contrary to section 160 of the Crimes Ordinance (Cap 200), disorderly conduct in a public place contrary to section 17B(2) of the Public Order Ordinance (Cap 245) or the common law offence of outraging public decency. If it involves the use of a computer (including a smartphone), the offender may be prosecuted under section 161 of the Crimes Ordinance for access to a computer with criminal or dishonest intent whether the conduct occurs in a public or private place.
9. A victim of clandestine photo-taking may bring a civil claim against the offender for sexual harassment under the SDO if it occurs in the employment or education field or in the provision of goods, facilities or services, and it constitutes an unwelcome conduct of a sexual nature in circumstances in which a reasonable person would have anticipated that the victim would be offended, humiliated or intimidated.
10. If the photo-taking activities involve personal data as defined in the Personal Data (Privacy) Ordinance (Cap. 486), the collection and use of such personal data would have to comply with all the data protection principles set out in Schedule 1 to the Ordinance, such as data protection principle 1(2) which requires that personal data must be collected by means which are lawful and fair in the circumstances of the case. The Privacy Commissioner for Personal Data may issue an enforcement notice to the person in default and contravention of an enforcement notice is a criminal offence.
11. In the Consultation Paper on Miscellaneous Sexual Offences published by the LRC sub-committee in 2018, the LRC sub-committee has recommended creating a specific offence of voyeurism to criminalise acts of non-consensual observation or visual recording of another person for a sexual purpose.