The Digital Age and the Rise of Upskirting
In 1999, when Kyocera marketing executive, Hajimi Kimura introduced the world’s first mobile videophone – The VisualPhone VP-210, he said:
“Users can use this phone not only to talk visually to their counterparts, but also they will be able to use it for business purposes. For example, if a constructor brings this phone to a site under construction, he can show what the site is like to the people at headquarters using this phone. So, they can do business checking the situation at real time” - http://edition.cnn.com/TECH/ptech/9905/18/japan.phonetv/
At the time, little did the world realise that the introduction of digital phones would be the kernel for one of the most prevalent offences in modern society – upskirting.
The concept of “upskirting” is not new. The 1767 painting The Swing by Jean-Honore Fragonard, depicts a man looking up a woman’s dress as she swings from a tree bough. Digital phones have taken the behavior to a new level. Voyeurs no longer conceal their hand held video recorder in a brief case or install a pin-hole camera in their shoe. Digital phones equip them with an easy-to-use tool to commit upskirting. The number of upskirting offences has risen at such an alarming rate that governments around the world are racing to modernise their laws to criminalise the behaviour.
For many years the Department of Justice often had difficulty in identifying the right charge for prosecuting upskirting. The usual charge brought for such criminal conduct is either disorderly conduct in a public place under s. 17B of the Public Order Ordinance, loitering under s. 160 of the Crimes Ordinance or the common law offence of outraging public decency. Where none of those three charges were appropriate as the offence happened in a private setting, a charge of dishonest use of a computer was brought as a last resort where the photography involved the use of a computer.
Whilst this is not a specific law in dealing with the behaviour and there were questions such as whether a digital phone would satisfy the element of “computer” for a time it seemed that Department of Justice had found a temporary solution to the offending behaviour.
Law Reform in Hong Kong
In September 2012 the Law Reform Commission’s Sub-Committee tasked to review sexual offences published a Consultation Paper recommending that “under-the-skirt photography” should, amongst other intentional acts of a sexual nature, constitute “sexual assault”. In May 2018 the same Sub-Committee proposed the creation of a new offence of voyeurism to criminalise acts of non-consensual observation or visual recording (for example, a photograph, videotape, or digital image) of another person done for a sexual purpose. None of these proposals have been implemented by the Legislature and there remains a lacuna in the law which in the light of Cheng Ka Yee (below) needs to be urgently addressed.
Secretary for Justice v Cheng Ka Yee & Others  HKCFA 9
This Court of Final Appeal judgment in April this year has demonstrated the problem created by not having a specific law to target upskirting. As a result of the decision, the deficiency in Hong Kong’s criminal law has resurfaced and requires the immediate attention of all stakeholders to address what is an affront to (mainly) women occurring on a daily basis in Hong Kong.
The Defendants in the case were primary school teachers. The 1st, 2nd and 3rd Defendants had attended a briefing session concerning a school admission process involving a competitive interview-based assessment. The interview questions and the marking scheme had been provided to those Defendants. The facts giving rise to the prosecution were that:-
(i) the 1st and 2nd Defendants took photographs of the interview questions (using their mobile phones) and sent the photographs by WhatsApp to a friend and the 3rd Defendant;
(ii) the 3rd Defendant typed up the interview questions in a Word file on a school desktop computer and sent the file to the 2nd Defendant (by email on the school computer) and another friend (using her mobile phone);
(iii) the 4th Defendant received the Word file from the 2nd Defendant and sent photographs of the Word file (taken with her mobile phone) to two friends by WhatsApp (again using her mobile phone)
All four Defendants were charged with obtaining access to a computer with a view to dishonest gain for himself or another, contrary to s. 161(1)(c) of the Crimes Ordinance. The Defendants were acquitted after trial. The Magistrate’s reasons for acquitting were that:
(i) She had a reasonable doubt that the teacher in charge had ever mentioned at the briefing seminar the need for confidentiality in relation to the interview questions.
(ii) She was not satisfied beyond reasonable doubt that the necessary element of dishonesty had been made out.
On review, the Magistrate confirmed her decision. Thereafter, the Secretary for Justice appealed by way of case stated. At the appeal hearing, Deputy High Court Judge C P Pang raised the question of whether in law the charges against the Defendants were appropriate, in particular whether their acts amounted to the actus reus of “obtaining access to a computer” within the meaning of s. 161(1)(c). In dismissing the Secretary for Justice’s appeal, the Judge referred to the case of Li Man Wai v Secretary of Justice (2003) 6 HKCFAR 466  and the statement in that judgment that:
"… the law as it now stands does not punish all kinds of unauthorized access to computers, it only prohibits the unauthorized and dishonest extraction and use of information…"
The Judge held that the acts of the Respondents were not unauthorised extractions and use of information from a computer. The 1st, 2nd and 4th Defendants’ use of their own smartphones to take photographs and send or receive photographs by WhatsApp were not unauthorised extractions and use of information from a computer. The 3rd Defendant’s use of the school desktop computer to create the Word file was not unauthorised and she had not obtained or extracted the Word file from the school’s computer system.
The Secretary for Justice applied for a certificate to the Court of Final Appeal on a point of law of great and general importance which question was certified as follows:
“Is the actus reus of the offence under section 161(1)(c) of the Crimes Ordinance, Cap 200 restricted to the unauthorized extraction and use of information from a computer”
In giving its judgement in April 2019, the Court of Final Appeal examined the statutory construction of s. 161(1)(c) identifying the central question as being whether the offence created by the section covers the use by a person of their own computer with the requisite intent.
In looking at the text, context and purpose of the provision, the Court determined that as a matter of language one always “obtains” access to something to which one did not have access before.
The Secretary of Justice argued for a wider construction of s. 161 on the ground that this secured a beneficial public policy. The Court though rejected this argument as it is not the function of the Court to identify a purpose which it thinks would be beneficial (to public policy) and then construe the statute to fit it.
As the 1st, 2nd and 4th Defendants were charged on the basis of using their own phones and in the case of the 3rd Defendant, the Secretary for Justice conceded that for the purpose of the appeal her position was the same as that of the other Defendants (ie using her own computer). On the proper construction of s. 161(1)(c), the Secretary for Justice’s appeal was dismissed.
The Need for Legislation
England and Wales implemented legislation to make upskirting a criminal offence in February of this year. In Scotland, the home of the kilt, legislation came in in 2010. In the light of Cheng Ka Yee there is a real and apparent need for the Legislature to act on the recommendation of the Law Reform Commission and to bring in legislation in Hong Kong to criminalise upskirting.