Indecent Assault: Age, Consent and Genuine Belief

HKSAR v Choi Wai Lun, HCMA 620/2016 involved an under-aged girl ("PW1") offering sex services with a fee schedule through an adult website. PW1 falsely represented that she was aged 17. The applicant claimed that he believed so. On the day they met, the applicant said he did not have any doubt about PW1's age. The applicant took PW1 to a hostel wherein they took a shower together and PW1 had oral sex with the applicant. PW1 consented to all these acts.

Issues Raised

Three questions of law of great and general importance have been referred to 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) of the Ordinance 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?

Key Take-Aways

The determination of these issues will be of enormous importance to criminal practitioners handling indecent assault cases where the authorities both in Hong Kong and overseas have not spoken with one voice.