Advocates, lawmakers and legal experts in Hong Kong have welcomed the passing of a bill making upskirting and image-based sexual abuse criminal offences punishable by up to five years in jail.

Six new violations have been introduced in the city after a third reading on the Crimes (Amendment) Bill 2021 was voted into law on Thursday by the Legislative Council.

Crimes covered by the bill include voyeurism, defined as observing or recording the intimate acts of others, and unlawful recording or observation of the intimate parts of a person for a sexual purpose, or dishonestly, which includes upskirting and taking photographs down a person’s top.

The offences cover those committed in both public and private spaces, and people convicted of the first two offences will go on the sex offenders’ register.

The bill also includes the publication of images originating from voyeurism or unlawful recording or observation of intimate pictures or publication, or the threat of publishing intimate images or videos without consent.

Advocates and lawyers have been welcoming the addition to the bill of including altered images, or “deep fakes”, where artificial intelligence is used to make images appear pornographic, as well as the introduction of a court order to take down and delete images.

“It really enables action to be taken against not only the individual defendant but anyone who has the images and controls their publication,” said Peter Reading, a senior legal counsel at the Equal Opportunities Commission, adding this would include any social media providers, such as Facebook and Instagram.

The government would be able to make an application to the magistrate at any time during any criminal proceedings to seek an order to compel any person or organisation to remove, delete or destroy the image.

The application could also request that the summons be served in any overseas jurisdictions where, for example, the data of users of any social media who had published images was not located in Hong Kong.

A person who failed to comply with the disposal order could face a HK$100,000 fine and imprisonment for one year.

The commission raised several concerns about the provisions in its submissions, such as the requirement to prove a purpose of dishonesty in relation to recording intimate parts.

“In most similar jurisdictions with equivalent criminal laws there is no requirement to prove such a purpose, which could possibly make such offences more difficult to prove,” Reading said.

The bill included the defence regarding age, where if the defendant was able to prove they honestly believed that consent was given by the individual to have photographs taken, and did not know they were under 16, then they would not be convicted.

“Children are in a particularly vulnerable situation so taking intimate images of them is arguably a situation where a defence should not apply,” Reading said.

The offences of taking photographs down someone’s top and upskirting will include a provision that it was for a sexual purpose or if someone acted dishonestly, which advocates argued was not necessary.

Jacey Kan Man-ki, from the Association Concerning Sexual Violence Against Women, said there could be numerous reasons, such as to humiliate or bully the victim.

Vince Chan, the association’s communications officer, said work still needed to be done to educate and train frontline police officers, the Department of Justice, and social workers on the new offences so they could communicate them properly to victims.

Previously, there was no specific offence against voyeurism and non-consensual recording of intimate parts, such as upskirting, and culprits accused of committing such offences were prosecuted for “loitering”, “disorder in public places”, “outraging public decency” and “access to a computer with criminal or dishonest intent”.

With some of the offences not covered in the Sex Discrimination Ordinance already on the city’s statute books, Reading said the bill provided “new means of redress for victims and enable prosecution of such offenders”.

 - SCMP