In October 2017, we wrote about the magistracy appeal decision of香港特別行政區訴蔡偉麟 (HKSAR v Choi Wai Lun) (unreported HCMA 620/2016, 31 July 2017): Is a genuine belief that an underage victim is over 16 a defence to an indecent assault?
On 9 May 2018, the Court of Final Appeal (“CFA”) overruled the decision of the appellate judge and held that:
- the offence of indecent assault is not one of absolute liability when the victim concerned is below 16 years of age; and
- the prosecution does not need to prove mens rea as to the victim’s age, but the accused has a good defence if he can prove on the balance of probabilities that he honestly and reasonably believed that the victim was 16 or over.
Why is indecent assaults on persons under the age of 16 not one of absolute liability?
Section 122(2) of the Crimes Ordinance (Cap. 200) (“CO”) deprives persons under the age of 16 of the capacity to consent to an act which, if not consensual, would amount to an indecent assault. On proper construction of this section, the CFA held that section 122(2) necessarily implies that it does not avail the accused to establish that he honestly believed that the under-aged person was freely consenting to the acts in question.
Although the CFA agreed that where the victim is below 16 years of age, the presumption of mens rea is displaced, i.e. the prosecution does not need to prove mens rea, the CFA rejected the conclusion by the appellate judge that the analysis in So Wai Lun v HKSAR  3 HKLRD 394 of the offence of unlawful sexual intercourse with a girl under the age of 16 (section 124 of CO) applied to the offence of indecent assault (section 122 of CO).
Rather the CFA distinguished So Wai Lun on the basis that the legislative history of the section 124 offence differs significantly from that of section 122. The reasonable belief defence which used to apply to the section 124 offence has been expressly rejected in Hong Kong. However, there is no such express defence later being abolished in the legislative history of section 122.
Another reason for the CFA distinguishing So Wai Lun is that it was decided before two CFA cases (i.e. Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142 and Kulemesin v HKSAR (2013) 16 HKCFAR 195) where intermediate bases of liability were recognised. In So Wai Lun, it was a decision reflecting the stark choice then available between full mens rea and absolute liability. However, if that case had been decided today, the Court would have proceeded to consider the five possible bases of criminal liability, ranging from full mens area to absolute liability with three intermediate possibilities. For details, please refer to our article Halfway house in criminal strict liability offences.
Hence, the CFA held that the offence of indecent assault on persons under the age of 16 is not one of absolute liability.
Which alternative is applicable to the offence of indecent assault where the victim is under the age of 16?
Having considered the statutory purpose of section 122, the CFA decided that the presumption of mens rea is displaced by applying the third Kulemesin alternative. This alternative admits by way of defence, an honest and reasonable belief of the accused that the circumstances or likely consequences of his conduct were such that, if true, he would not be guilty of the offence.
In other words, for the offence of indecent assault, the accused must satisfy the court or jury on the balance of probabilities that he did honestly and reasonable believe that the victim was 16 or over.
The CFA’s answers to the following certified questions of law are:
- whether the offence of indecent assault an offence of absolute liability when the alleged victim is a person under 16 years of age – No.
- whether an accused charged with indecently assaulting a person who was under 16 years of age can legally put forward a defence that the person in fact consented and the accused genuinely believed that he/she was 16 years of age or over – No. Actual consent is deemed irrelevant. The defence requires proof of an honest and reasonable belief that the girl was aged 16 or over.
- where the alleged victim is a person under 16 years of age whether the prosecution is required to prove absence of genuine belief of the accused that the person was 16 years of age or over – No.
The CFA unanimously allowed the appeal, set aside the appellate judge’s decision and restored the accused’s acquittal.