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Martin Hui

Hong Kong has seen a number of amendments to its criminal law in recent years aimed at strengthening the response to sexual crimes.
Notable examples are the new offences in the Crimes Ordinance regarding voyeurism, upskirting and the publication of intimate images without consent.
There has also been discussion, including in this column, regarding how the law can adapt to the new phenomenon of pornography generated by artificial intelligence and deepfakes.
It is essential that the law, especially criminal law, be continuously updated in light of societal and technological developments. However, apart from looking forward, it is also essential in a rule of law society to look back on existing legislation and ask whether they remain fit for purpose.
Sexual offences are a key area that consider society’s evolving notions around sexual morality and issues of consent. The definition of rape in the Crimes Ordinance, for example, has remained on the books without significant amendment since its introduction in 1978.
The Hong Kong Law Reform Commission has been particularly active in this area, producing a consultation paper in 2012 on rape and other non-consensual sexual offences, as well as a report in 2019 reviewing all major substantive sexual offences in the city.
While the Law Reform Commission’s suggestions have yet to be implemented by the government, the chief executive in his recent policy address vowed to implement reforms to Hong Kong’s law on sexual offences. The Security Bureau is currently studying potential amendments to the law.
Reform in this area is to be welcomed, and it is worth discussing some broad areas that amendments to the law may consider.
The crime of rape is an excellent candidate for reform given its seriousness – it is punishable by up to life imprisonment – and the difficulty in successfully bringing cases to trial and securing convictions. Further legal clarity would not only assist with law enforcement but hopefully also provide the public with greater confidence and legal certainty.
According to statistics from the non-governmental organisation RainLily, between 2019 and 2023, only 47.2 per cent of victims that sought its help reported their “penetrative sexual assault” to police.
One of the main areas where the crime’s definition could be enhanced is the definition of consent, which is at the core of the gravamen of the offence. Sexual intercourse without the willing participation of the other party constitutes a grave infringement of bodily autonomy.
Whether the victim actually consented to the sexual act, therefore, is critical, as is the defendant’s mental state. At present, there is no statutory definition of consent, and it is left to the jury to decide in the circumstances, with directions from the judge, whether the victim consented to sexual intercourse.

There are a number of areas where the law can provide greater clarity as to the absence of consent, which would make it easier for judges to direct the jury and provide additional legal certainty.
One approach could be that taken by New Zealand’s Crimes Act 1961, which sets out a number of non-exhaustive circumstances in which a person permitting sexual activity does not equate to giving consent. Examples include situations in which force or the threat of force is applied.
Importantly, the New Zealand legislation explicitly states that a person should not be presumed to be consenting simply because they do not protest or offer physical resistance in response to sexual activity.
An added benefit of this approach is that its clear categories of conduct assist law enforcement with identifying potential cases of rape that could be investigated and reach the stage of a criminal trial.
There is also a deeper question as to how the question of consent is framed by the criminal law. At present, the statutory definition couches the crime in the absence of consent.
If an affirmative consent model is adopted, the initiator of sexual activity would have to be sure that the other party consented by taking steps to ascertain their consent. This would be coupled with provisions similar to those in New Zealand, where silence, inaction or lack of protest would be insufficient to presume consent.
This would in effect shift the focus of the trial from the acts of the victim (whether what they did can justify an inference that consent was absent) to the acts of the accused (whether they took steps to ascertain whether the other party consented).
Reform to this area of the law is much needed in order for Hong Kong’s sexual offences to reflect more nuanced understandings of consent. Of course, such reform must be undertaken carefully and with public consultation to ensure that the new offences are able to meet the needs of Hong Kong society and protect victims of sexual violence.
Martin Hui SC is the current vice-chairman of the Hong Kong Bar Association, a former deputy director of public prosecutions of Hong Kong and a criminal litigator.
Legal Tales is a new weekly column by senior members of the Hong Kong Bar Association presenting their perspectives on current affairs.


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A new test for consent: reforming Hong Kong’s approach to sexual crimes

.css-1c6uqr6{color:inherit;font-weight:inherit;font-size:inherit;font-family:inherit;line-height:inherit;overflow-wrap:break-word;}Efforts to update the city’s sexual offence laws aim to reflect evolving views on consent and improve prosecution outcomes

Efforts to update the city’s sexual offence laws aim to reflect evolving views on consent and improve prosecution outcomes