I was recently invited onto RTHK’s Back Chat radio show to discuss my Hong Kong Free Press op-ed on sexual harassment in Hong Kong and at the FCC.
I’ve also typed up a transcript of the 16th April radio show too:
Good morning welcome to back chat. I’m Danny Gittings, your co-host this morning is Ada Wong. Good morning Ada.
Good morning Danny!
Yeah sure, so thank you so much for asking me about it. So personally I became a member of the FCC about 5 years ago and at the time the FCC said to me that they wanted to attract younger, more female members and I remember on one of the first days that I walked in and on the main bar wall there was a photo of two topless women. And it was a magazine cover. And straight away I pointed this out and I was like ‘what is this. This is so unacceptable. And I complained. Long story short it took over 18 months to try and take one picture down off the wall, and I got so much vicious backlash and it came from a wide range of members, male and female members included and like you said I was called a witch, one member said that they should have a witches coven in the FCC and we should put funds towards keeping all of our broomsticks. So for me it felt really, really hypercritical to say that you’re a professional club that wants to welcome younger female members but this is the representation of us you choose to show, not a profile shot of a really amazing female foreign correspondent but that’s the representation.
Just now you said that the criticism towards you came from a wide variety of members, both male and female and of course there was a story yesterday saying that the critics of this anti-harassment policy are, they say that a majority of them are female.
I would say that that’s what they say but at the moment the list is still completely anonymous so no-one can know for sure, but I do know that there are several female members who have signed this and I would say as I mentioned on twitter last night, just because as female member signed this doesn’t mean it isn’t sexist.
Ok let’s talk more broadly about the issue and as we raised at the start. The FCC isn’t the only place that grapples with this, it is a difficult issue isn’t it? Even the opponents here of the anti-harassment policy they say of course they don’t condone harassment but where do you draw the line between that and free speech?
Of course I understand and it’s quite a complex issue, I think when the FCC proposed this as policy we did welcome any feedback and criticisms and edits but nobody came forward at the time with anything which I think is quite telling, also I think in this specific case, its quite interesting that several of the members that have protested this anti-harassment bill haven’t actually done anything else in the club to protect freedom of speech. They haven’t been at any protests to free imprisoned or arrested journalists in Myanmar, they haven’t protested any other forms of like journalists being murdered across Asia just for doing their jobs. It seems quite convenient to now suddenly take up this cause when suddenly their behaviour is being called into question.
15 years on and off. A long time.
Ok, you do touch on this in the article you wrote, what is your more general impression how things have changed or have they changed in Hong Kong in terms of our awareness of these kind of issues?
I think people are becoming generally more aware which is mirroring global trends about issues of consent and what is appropriate but I do think stigmas still do exist around surrounding, it’s quite a sexually conservative society, so stigmas concerning sexuality, and not really having a general feminist discourse or even having a general public discourse about sexuality where we can talk about these kind of issues. I do find personally, from my personal anecdote, I’m harassed here less than other places, and I think that’s culturally like you don’t have a culture of wolf whistling, cat-calling or vulgar things being shouted at you down the street as you do in other places, which is a really sad thing to say but that’s one of the main reasons that I wanted to move back to Hong Kong because I knew that it was a safer place for women to work. And I think as women we’ve all had to make decisions in our life to counteract sexual harassment, well I know I have, whether its choosing what you wear, where you go, what time you come home at night and I think Hong Kong is a really safe place in that fact as a woman you can walk out of your house at 2am and it’s really, really unlikely that anything will happen to you but I do think, I know we are speaking about broad changes but I do think there is still systemic, institutionalised sexism here as I also mentioned in my article. Gender pay gap is at 22% here, 55% female workforce and its lagging behind other Asian countries and I think we all really need to identify that this is a crucial problem especially when it is taking victims of sexual violence 1389 days on average to come forward, and the longest delay was 58 years. So this a huge crucial issue that we need to be talking about, and why do people not feel comfortable coming forward about that.
Do you think there is a difference between the expatriate society and the local society?
Just from my personal experience, I can say that yes but unfortunately I’ve been sexually harassed on the street by a wide range of people.
So you’ve had bad experience of this in Hong Kong but you still say on balance that Hong Kong is better than other countries that you have lived in.
What other countries?
UK, and US, unfortunately I’ve been harassed in quite a lot of countries even while traveling. China. I’ve been sexually harassed in, so I think it’s maybe more of a culture thing that maybe people are more forward in the UK so yeah unfortunately.
Ok let’s turn to the other current related item that’s been in the news this past week which is the issue of upskirting photos, a law against upskirt photos or at least a lack of a law in Hong Kong, I mean for a number of years those who were caught on it have been prosecuted under a law against obtaining access to a computer for criminal or dishonest gain but a series of court decisions going all the way up to the court of final appeals, that law can no longer be used for this kind of crime, perhaps Vitus Leung, good morning thank you for joining us, Vitus Leung practising solicitor can you explain a little bit more about the legal situation here and the problems we are now facing.
Yes, in the past how we draw the line is as long as you don’t touch people then you won’t get caught, so of course, we have the obtaining access to computer ordinance, that is within the crime ordinance section 161. In the past we have been rightly using this ordinance to apply to cases such as the Heep Woh student primary case,the access to a computer to obtain something that you shouldn’t obtain.
You’re not talking about a harassment case here are you, you’re giving an example of the wide ways these laws have been used, and one of the ways its been used is in harassment cases right?
Yes of course, so we’re talking about upskirt photo-taking. This is very convenient because we’re talking about the computer and mobile phone is also computer, okay so it is very convenient. In the past we consider that, we don’t take note of the word obtain so we just consider that they are using the computer/ mobile phone of your own is the same as obtaining access to these computer, but now because of the court of final appeal case they decided that because of the obtain means you have to get access by obtaining permission / something like that.
Which means that it can’t be used for your own phone basically.
Exactly so that means you have to get obtain access to somebody else’s phone so because of that we can’t apply this law to some private places.
So to put it simply the law that had been used to prosecute people who are caught taking these kind of upskirting photos can no longer be used for that situation.
Exactly. In the past because of this law, we can apply this law to private venue or private places because in the public places we have three common ordinances. One is the disorder in public place, one is loitering and one is outrage public decency. The three areas of law must have the public element, without the public element then we use this access to computer law and then we can fill up the gap. We simply have the whole protection so at the moment because of the CFA case, we cannot apply this law to the private situation.
The law reform commision did issue a consultation last year, but did it attract a lot of attention? In it it suggested that new laws on voyeurism should be enacted.
Yes that is something that may fill up the gap. And i also support that legislation but at the moment there are a few examples, there are Canadian examples, European examples, British examples, so we have to study. So it is up to the Legislative Council to consider how they approach the situation because some women’s groups suggest that some of the element say for example the requirement of having sexual gratification plus the consent. They want to remove the sexual gratification element so that as long as somebody is staring at the private part of say a woman’s body they can be sued. This is how they are considering whether they would enlarge this law or narrowing the law so that they would focus on just somebody who views another person’s private parts with sexual gratification plus without this person’s consent.
It sounds like there are some difficult issues here, it’s not just an issue of deciding whether as most people would agree that we do want a law against these kind of offences, but it’s going to be very difficult to define what exactly is involved, it might take some time to come up with a new law.
Certainly yes I think they will take some time for arguments and social acceptance on this.
I think one of the members of the sub-committee of the law reform commision Eric Cheung from Hong Kong U has been quoted about this saying for example you have to consider for instance if people take pictures in a bar or something like that and those pictures include those who don’t necessarily know that they are going to be photographed in a public place like that, would that be covered by this new law? It’s very easy to say of course there is a clear conduct where people putting cameras on other people’s clothing on the MTR or so on that’s clearly covered but there will be a lot of grey areas as well.
That’s how you draw the line. People walking on the street or in a public bar, with a special with some special dress or see-through dress or something like that that actually is providing a sort of implied consent for people to view his/her body. But then if you are doing this viewing in a private place or maybe an example is that I drew a hole in a hotel room and then I peep-through into another room and at the moment the law doesn’t protect us at all.
So is it likely to take a long time, I mean law reform commission proposals a lot of them are never enacted and even when they do they take a long time to do so and you’re identifying here these various issues that have to be ironed out. We could be talking many years before we have a law.
I think people have been talking about this for quite a while, I think everybody will have some sort of opinion of their own and this is better for them to sit down and consider all the points.
Okay let’s bring in our third guest so here with us in the studio is Jeff Pao, China Editor of the Asia Times, good morning and thanks for joining us. Sexual harassment is not just a problem here in Hong Kong, in fact Miss Radclyffe-Thomas was referring to being sexually harassed while traveling in China. There was a survey recently that actually said that mainland-born women were slightly more forward than Hong Kong-born women in terms of coming forward and complaining about sexual harassment. Is that your experience?
Yes. Actually in China, the law is quite advanced in terms of sexual harassment.
Is it ahead of Hong Kong?
It’s ahead because there are a lot of ways to prosecute a person who has sexually assaulted another person and there are a lot of cases in China that can be successfully prosecuted. So in Hong Kong I think is a little bit late that we don’t have the upskirting law, and now we have a vacancy and I think the government or the whole society should now think of some way to promote this idea that is people indoors are now very dangerous, because they are subject to dangerous upskirting or maybe we know that there are a lot of cases in Hong Kong in the office or at home for example domestic workers can be taken a nude video by her employer.
Yes there have been some cases on that recently.
In Hong Kong offices there a lot of women or men who might be taken photo of without their consent so I think there should be a campaign to tell people that now we have a vacuum in the law.
But in China, let’s say up-skirt photo-taking how is that tackled?
Actually for example on the street if a woman was victimised by an upskirting photo-taker, she can report it to the police and the police will have the right to detain the guy for 15 days with certain reasons if there are some photos in his phone then immediately the guy will be detained for up to 15 days. So this is very powerful.
Does it actually happen though? Because of course the point is in China they have much wider vaguer laws don’t they so you’re not going to have a legal vacuum in China because the laws are written in such general terms, it could cover almost anything.
That’s why in terms of the upskirting crime, in China its more advanced because the law is so big and in Hong Kong we are lacking that element. But is the law actually used? What would the experience be of a Mainland woman if she reported to the police, would she be laughed at or would the police actually take it seriously?
Yes you’re right, it’s really case by case. It depends on the policeman’s judgement. If the policeman says its a joke, don’t care about it, then it’s not a case. If the policeman takes it seriously, if it is a police woman, it can be a case easily.
Vitus look, Jeff Pao has raised some interesting points here, should we be learning from laws in Mainland China? They don’t seem to have the same problem that we have here.
Actually I have an idea, since we have that obtaining access to a computer law for more than 20 years, with that law I don’t see that there is much problem using that. Only until this Court of Final Appeal clarification so why don’t we simply go through this legislation and simply remove the word obtain and then we can continue to use this present law until voyeurism or whatever law comes in. So we can still use this computer law to protect everybody.
That’s very sensible, probably far too logical for our government and our legislators but that would certainly be a lot quicker than enacting a new law.
But in the meantime there is a gap and vacuum, there are a couple of cases that have been lined up and being charged with the existing legal framework so how could those cases proceed?
That really is a problem, that’s a big question to everybody. I think some people will come back and say I shouldn’t be found guilty and they will challenge the court and they will probably appeal against their own previous conviction, there’s a chance of that although they are all out of time but they have this good reason now the Court of Final Appeal has already clarified the situation so we have the new picture. So they have an excuse to try to appeal against their own conviction.
And what happens now when the police catch some pervert on the MTR with a mobile phone taking pictures of a woman?
That’s easy. On the MTR we have the outraging public decency law, and disorderly public conduct so that will be fine but we don’t have the law to protect people when they are inside private rooms or in the home office or private changing rooms, that will be a problem.
So you were saying out on the streets, on the MTR and so on, there’s not really a legal vacuum at the moment, so it narrows the extent of the problem. It’s still a problem but it’s narrowed to just private places.
And how long realistically will it take to put in place a law that will cover this?
That involves the public debate, and also going through this legislation process. As you can see, it probably takes a year or something like that.
Do you think the court was right to rule the way it did? I mean it’s maybe highlighted the difference between the Hong Kong and Mainland legal system, there Mainland court with wide laws and here they can saw maybe there are good reasons for using the law this way but the words just don’t support it.
Well I think even in the Mainland system if you have a judge to consider the meaning of the word or actual meanings of the words then comes up with a conclusion, they will still have the same problem. But I don’t know the exact wordings in China at the moment so I have no idea.
That’s why you said the simpler solution in Hong Kong would actually be just to amend the wording, wouldn’t it?
Yes, remove the word ‘obtain’.
As we say this case comes up, it wasn’t actually a case about harassment was it, it’s not just about harassment the existing law is being used in all kinds of areas, and those are affected in the same ways as harassment now aren’t they?
I think in the other areas this is worse than just the harassment because it is protecting other areas as well, say for example the Heep Woh primary case.
Yes so that was a case about examination papers. And you’re saying that this is worse because there is an old substitute law that can be put in there.
Well there is a point, nobody is obliged to join any particular club in Hong Kong and if the atmosphere is wrong, maybe it’s not the right club?
I think first I would like to address the victim shaming in that person’s statement, that why I didn’t come forward and complain? Why aren’t they accusing the person who harassed me, why am I getting the grief for being harassed first of all?
I suppose they might say that they don’t know who it was.
They are saying why I didn’t I come forward, I should have told the police. Rather than saying like I’m sorry you’ve been harassed and analysing okay why didn’t I feel comfortable going forward to the police. It’s probably because of this.
Is that blaming you or is that just a factual statement that if you are a victim of a crime one logical response is to report it to the police. Everybody has their own right whether or not to do so, in that case it’s certainly one thing to do if you want to discourage the perpetrators going forward.
Ok, so every time I was harassed at the club I did complain to the club and they have an internal disciplinary. I still stand by my original statement I think that there is an underlying victim shaming in this question. And the second point about if I don’t like it I shouldn’t join, how dare you say that to me? This is a professional journalist club and I am a professional journalist and this is a professional members club, I agree that maybe if it was a restaurant or a different gentlemen’s club I wouldn’t be a member, this positions itself as a bastion of press freedom and a working space for current journalists.
How about the issue about the photo? You mentioned earlier on, you went even further on than you did in your original article for HKFP you talked about how you were called a witch you told us earlier on that people refer to broomstick cupboards and things like that. I think the point that the listener was making there was that this photo had been up for 20 years there was also a photo of a man.
Yeah I would like to address that, just because a man is being objectified in the picture nextdoor doesn’t make this ok. That picture of a man with his buttock being shown against his consent this isn’t ok. So this statement has no grounding actually and the fact is that its been there for 20 years what does this say about our club’s mentality? Its like some awful heyday from the 1970s. I don’t even know how I can argue with this really. Just because its been here for 20 years doesn’t mean it’s ok.
How do you see this continue to play out? For example the removal of the anti-harassment policy, would that go through? And how would a private club’s protection or policy give people like you some sort of comfort when we have this big gap in the legislation in Hong Kong?
Sorry can you expand on that so far we have been talking about the FCC entirely and I know its been in the news with the danger of just focusing on the one club there. I’m aware there has been a reaction to it and we’ve discussed this but what do you mean other clubs want to do something similar.
I can’t say now on the record which clubs
Okay that’s fine but you can talk in general terms.
I’m saying in general, other private members’ clubs have said that they also need these sort of policies. And we were taking a brave step forward in doing this and they would be looking into how they could do something similar.
I mean you’re not an expert on what the position is at other clubs, but is it your impression that generally from what you’ve heard private members clubs in Hong Kong don’t tend to have these policies.
Yes, from what I have overheard so it’s completely anecdotal and I would also like to say…
Sorry just one thing there so you’re in one way maybe in a sense slightly hopeful that the FCC is leading the way here.
Yes I honestly think it is so I think it says a lot that we have over 2000 members at the club and 200 or so members of staff and only 100 people have apparently signed this petition so it’s not a large number and I think you can see from the outpourings that the vast majority of journalists, correspondent and associate members actually do welcome this and feel like we do need it.
Well again we should remind our listeners the point we made earlier which was stated in a SCMP story yesterday that half or perhaps more than half of the FCC members who have objected are women.
Yep. I feel sorry for them.
Uh, that’s quite a provocative statement to say, aren’t they entitled to their views as well?
Yeah, they can have their views but then I think if your view then imposes on someone else’s freedom to live. I just want to exist, I just want to go to a press club, a professional club and I do not want random men kissing me and touching me and whispering in my ear and when I tell them to please leave me alone they won’t, and I’ve had to ask bar managers several times to step in can you please save me, this is not an ok situation and I think for years we have just relied on people to have common decency and they just clearly haven’t and therefore this is why the policy is needed to show this is your behaviour and I do want to say like if we are really trying to adopt an idea of gender fluidity just because a woman signed this bill doesn’t mean it isn’t sexist.
And of course the policy we touched on this briefly the policy let me just read it out here the harassment it refers to and it can be reasonably known to offend / intimidate / humiliate the recipient on the basis of appearance, gender, race, ethnicity, religious beliefs, sexual orientation, disability, physical size or weight, age, marital / family status, nationality, language, ancestry or place of origin. We’ve been talking almost entirely about sexual harassment, from your experience are their problems in some of these other areas? Or is it really just the sexual harassment policy?
No there are issues across all of these.
All of these?
Yeah quite a lot come in yeah.
Well there is quite a lot there. Physical size, weight, ethnicity, age – are you saying that people are seeing age discrimination at the FCC?
I have heard horrible things being said about members yes. About how old they are, their size, Yep.
Ok now again just a reminder we are discussing recent developments related to sexual harassment in Hong Kong and you just heard Babette Radclyffe-Thomas who has very strong views about the current situation at the FCC and the anti-harassment policy that has been introduced there. If you have your own opinions you’re welcome as one FCC member already has to email us / comment on our FB page. Jeff Pao let’s just return to the broader situation earlier, we’re talking about how in some senses the Mainland is perhaps ahead of Hong Kong in combating sexual harassment. It’s very rare that we talk about Hong Kong learning from China and in the legal arena, how far can we take that approach?
I think in terms of the upskirting law Hong Kong is not only lagging behind other countries like China, it is lacking behind Singapore a long way. We can see from some figures that we often see some reports about upskirting crimes in Singapore but not often in Hong Kong and this is because they have an upskirting law so people are easily prosecuted so in Hong Kong it’s very difficult to prosecute a person who take upskirting videos even if now because we have a vacuum in the law so even if some photos are found in a mobile phone it will be very difficult to prosecute.
Jeff is also because of the culture and value of a country or city, after all a law is a law and a policy is a policy it’s up to that person whether they have the respect and tolerance of different values.
Yes I think in very general terms we all agree if some upskirting videos or pictures are found in a phone then someone must be accountable or responsible for this crime but in different countries there are different laws and they might treat the crime differently but in general the culture we all know this.
Vitus Leung, how did we get into this situation in Hong Kong? I’m just looking at the Law Reform Commission’s report, and Jeff Pao just mentioned Singapore and they listed numerous other countries that have laws on this, James To Democratic Party legislature when this came up, I think actually on a radio show he said it was just lazy government drafting officials, they could have done something 10 years ago and they didn’t, and now they have been caught by this loophole and if they had something earlier we wouldn’t be in this situation now.
Well I think the law reform commission has done its job at least a year ago and before that they had some study in it. Of course we had this loophole for many years and because of the easy broad brushstroke of the law of the computer related ordinance. At the moment this is urgent now, we have to do something about it, so the voyeurism law, that should be legislated but it seems that still requires a lengthy discussion in the public so that’s a problem.
What’s the best solution, we’ve mentioned all these other jurisdictions they have their own laws so do we just try and copy one of those? Or do we need to try to craft something different for Hong Kong?
Well because even we try to copy the one from England but then there are still arguments as the dimensions as to whether there should be a person with sexual gratification or without sexual gratification then that maybe is dangerous for somebody walking on the street just staring at someone else or maybe gazing or I mean daydreaming or gazing at somebody else’s body then got caught then that will be a sort of problem to the society.
Usually that could be tackled, e.g. do you know how Singapore would tackle that? Singapore is a relatively conservative society?
I’m actually open because it’s always like that with all this legislation we copy things from other countries’ legislation so as I mentioned we can actually have groups of people sitting down and simply carving out those we don’t want. Then we can come up with some good legislation.
One DAB legislator has suggested that she will introduce a private member’s bill, that she wouldn’t wait for the Hong Kong government to act. Is that a good way forward?
Well it’s the same, I think the government will put forward something quickly then we have to go through the discussion period and then there will be still end up with the same argument.
So it wouldn’t make any difference if it was a private member’s bill as opposed to a government bill. Thank you very much, i think we will draw it to a close there.