Ling is a 15 year old Form 3 student. She got to know Mr. Lee via a social network. Thereafter Ling had immoral transactions with Mr. Lee. Without Ling’s knowledge, Mr. Lee took secret records of the transactions…

1. Has Mr. Lee committed any crime?

   1. Mr. Lee has had sexual intercourse with a girl under the age of 16. This is an offence contrary to Section 124 of the Crimes Ordinance (Chapter 200). Ling’s factual consent to sexual intercourse is no defence. The offence carries a maximum sentence of 5 years’ imprisonment.
   2. Mr. Lee may also commit an offence under Section 3 of the Prevention of Child Pornography Ordinance (Chapter 579) for producing child pornography and/or alternatively, being in possession of child pornography. Ling is under 16 years of age and is a child. Lee has taken naked photos of her. Arguably photographing the naked body of a person less than 16 years of age who is not your child is an offence under Section 3 of the Prevention of Child Pornography Ordinance (Chapter 579).
   3. If Mr. Lee had requested on the Internet for sexual intercourse with payment, he may have committed the offence of soliciting for an immoral purpose, contrary to Section 147 of the Crimes Ordinance (Chapter 200). The offence carries a maximum sentence of a fine of $10,000 and to imprisonment for 6 months.

2. If Mr. Lee distributes Ling’s naked photos to his friends, has he committed any offence?

   It is an offence contrary to Section 3(2) of the Prevention of Child Pornography Ordinance (Chapter 579) to publish any child pornography.

   The maximum penalty upon conviction on indictment is 8 years’ imprisonment and a fine of $2,000,000. Upon conviction after summary trial the maximum penalty is 3 years’ imprisonment and a fine of and $1,000,000.

   By sending the nude photographs of Ling to his friends Mr. Lee has published the photographs. Publishing in this context simply means making the photographs available to other persons. .

   Even where Ling is above the age of 16, the distribution of her nude photographs to friends may breach Section 21 of the Control of Obscene and Indecent Articles Ordinance (Chapter 390). The definition of ‘publish’ under the Ordinance includes distributing to a section of the public, whether or not for gain. Under this definition, Mr. Lee may have committed an offence, and could be liable to a maximum fine of $1,000,000 and imprisonment for 3 years.

3. If Ling agrees to let Mr. Lee take photos of her in nude, and knows that he would save the photos in his mobile phone, has any offence been committed?

   As Ling is only 15 years of age, her consent is no defence. Section 3 of the Prevention of Child Pornography Ordinance (Chapter 579) criminalises the making of child pornography. As a fact Ling is a child. No question of her consent being a defence arises.

4. If Ling initially agreed to let Mr. Lee take photos of her in nude, but then comes to regret this, is there anything she can do?

   Ling should tell her parents, the police or her school teacher what has happened. This will likely lead to an investigation and the seizure of Mr. Lee’s mobile phone and any other child pornography by the police. This will at least mean that the nude photographs are no longer in his possession.