Procuring unlawful sexual acts by threats

The cyberbully’s objective may sometimes involve more than simply threatening, alarming or intimidating the victim. The purpose may be to compel the victim to submit to an unlawful sexual act which would otherwise not occur. Procurement by threats contrary to section 119 of the Crimes Ordinance is committed where a person procures another person by threats or intimidation to do an unlawful sexual act in Hong Kong or elsewhere. Procurement by threats is punishable by imprisonment for 14 years.

According to section 117(1A) of the Crimes Ordinance, an unlawful sexual act is committed if, and only if, that other person:
(a) has unlawful sexual intercourse;
(b) commits buggery or an act of gross indecency with a person of the opposite sex with whom that person may not have lawful sexual intercourse; or
(c) commits buggery or an act of gross indecency with a person of the same sex.

Unlawful sexual intercourse for the purposes of section 119 of the Crimes Ordinance is sexual intercourse for which there was no consent. Sexual activity obtained by threats or intimidation is not consensual. It involves submission rather than consent. Procurement means to get by special effort, to bring about, to acquire, or obtain something that otherwise would not be acquired or obtained.

HKSAR v Wong Dawa Norbu Ching Shan is a good example of a section 119 offence. The victim engaged in unwanted sexual intercourse with the defendant because of his threats to publish a nude photograph of her on YouTube and Facebook, and to send the photograph to her boyfriend. A similar situation involving a defendant threatening to post nude photographs of the victim on the Internet unless she agreed to have sexual intercourse with him arose in HKSAR v Liang Fu Ting. As a result of the defendants’ threats, the victims engaged in unwanted sexual intercourse with them.

Section 119 of the Crimes Ordinance overlaps with blackmail contrary to section 23 of the Theft Ordinance. In cases such as Wong Dawa Norbu Ching Shan and Liang Fu Ting, a section 119 charge may well be the most appropriate charge. Though involving adults, both cases are examples of cyberbullying, as the defendants engaged in a persistent course of conduct through the Internet to wear down their victim to procure unwanted sexual intercourse. Section 119 is, however, limited to the procurement of the unlawful sexual acts set out in section 117 (1A) of the Crimes Ordinance and is much more narrow than section 23 of the Theft Ordinance, which is discussed below.