Criminal law and procedure - sexual offences - indecent assault, contrary to s.122 - indecent acts with girl aged 13 but whom defendant believed was aged 17 - defence of honest and reasonable belief as to age - whether, in relation to children under 16, offence one of absolute liability so that defence not available - whether absolute liability necessary to achieve statutory purposes of s.122 - Crimes Ordinance (Cap.200) s.122
Introduction and Case Brief
In November 2017 we reported on this referral to the CFA to determine the question of whether a person commits indecent assault if he engages in consensual sexual conduct with a girl who is actually 13 when he honestly and reasonably believes her to be aged 16 or above. At the High Court, the Deputy High Court Judge had found that as a matter of necessary implication the legislative intent was that indecent assault should be an offence of absolute liability and the appellant could not escape conviction on the basis of an honest and reasonable belief that the girl’s age was 16 or over.
Three questions of law of great and general importance were certified for determination by the Court of Final Appeal as follows:
- whether an offence contrary to s. 122(1) and (2) of the Crimes Ordinance (Cap. 200) (the “Ordinance”), taken together, is an offence of absolute liability when the alleged victim is a person under 16 years of age
- whether an accused charged under s. 122(1) of 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
- whether in a prosecution under s. 122(1) where the alleged victim is a person under 16 years of age, the prosecution is required to prove absence of genuine belief on the part of the accused that the person was 16 years of age or over?
The Court unanimously allowed the appeal. In giving the judgement of the Court, Mr. Justice Ribeiro cited HKSAR v So Wai Lun  1 HKLRD 443 as the modern starting point for a presumption that mens rea is an essential ingredient where a statute is silent on the mental element. Following Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142 and Kulemesin v HKSAR (2013) 16 HKCFAR 195, the law in Hong Kong allows for 5 possible bases of criminal liability as possible conclusions when construing statutory criminal offences.
Section 122(2) of the Ordinance expressly deprives persons under 16 of the capacity to consent to an act which, if non-consensual, would amount to indecent assault and thereby removes consent from both the actus reus and the mens rea of indecent assault in cases involving persons under 16. So a defendant can be found guilty of indecent assault on a victim under 16 even if he can prove that consent was, to his knowledge, and in fact given. However, the defendant’s mental state regarding the other person’s age in such cases becomes an essential ingredient and thus engages the presumption of mens rea. Although the heavy penalty for this offence tended to favour non-displacement of the presumption of mens rea, it is clearly displaced in respect of indecent assaults on persons under 16. Were it otherwise the prosecution would be required to disprove, beyond reasonable doubt, any claim made by the defendant that he honestly believed the victim was aged 16 or over.
Here it was not considered necessary to displace the presumption of mens rea with absolute liability to achieve the statutory purpose of section 122. This could be achieved by the third alternative in Kulemesin i.e. the defendant must satisfy the court or jury on the balance of probabilities that he did honestly and reasonably believe that the victim was 16 or over. The Court rejected the second Kulemesin alternative (which would require the prosecution to negative beyond reasonable doubt a stated belief by a Defendant that a victim was 16 or over) stating that the derogation from the constitutional right to be presumed innocent was justified on the rationality (to give heightened protection to the vulnerable) and proportionality (being no more than necessary) tests.
This judgement clarifies the law on indecent assault on victims who are under 16 and identifies how a defence of reasonable and honest belief needs to operate in order to result in an acquittal. The answer to the certified questions (above) are (i) No; (ii) No. Actual consent is deemed irrelevant. The defence requires proof of an honest and reasonable belief that the girl was 16 or over; and (iii) No.