Legal update: Is a genuine belief that an underage victim is over 16 a defence to an indecent assault?

Update: On 9 May 2018, the Court of Final Appeal (“CFA”) overruled the decision of the appellate judge. Read our update posted on 24 May: Court of Final Appeal’s answers on the issue of establishing a defence to indecent assaults on underage victims

In a recent magistracy appeal case of香港特別行政區訴蔡偉麟 (HKSAR v Choi Wai Lun) (unreported HCMA 620/2016, 31 July 2017) (Chinese judgment), the Court of First Instance held that a defendant’s genuine belief that a 13-year-old girl was over 16 does not constitute a defence to the charge of indecent assault.

What happened in HKSAR v Choi Wai Lun?

The case concerns a 13-year-old girl advertising on an adult website that she was 17 years of age and offering to provide sexual services at specific rates. On the day they met, the accused genuinely believed that the girl was 17 and she went on to provide the services to the accused as agreed.  The accused was later charged with indecent assault.

At trial the magistrate found that the accused had had reasonable cause to believe that the girl was over 16 and accepted that the accused’s belief that the girl was over 16 amounted to a defence. The magistrate further held that indecent assault when the victim concerned is underage is not an absolute liability offence, so the prosecution would have to prove the accused’s intention to commit the offence. The accused was therefore acquitted.

However, the acquittal was overturned on appeal.

Why was the prosecution’s appeal allowed? 

The appellate judge decided that the analysis by the Court of Final Appeal in So Wai Lun v HKSAR [2006] 3 HKLRD 394 of the offence of unlawful sexual intercourse with a girl under the age of 16 (section 124(1) of the CO) applied to the offence of indecent assault (section 122(1) of the CO).

In So Wai Lun the Court of Final Appeal upheld the Court of Appeal’s conclusion that the offence of unlawful sexual intercourse with a girl under the age of 16 was an absolute liability offence. The Court also stated that the reasonable belief defence has been expressly rejected in Hong Kong, unlike in the UK where the reasonable belief defence has always been available for a similar offence.

The appellate judge in Choi Wai Lun quoted from the Court of Final Appeal judgment of So Wai Lun that

“care to avoid what may be unlawful and steering well away from the line between legality and illegality would add materially to the protection for young girls which the section provides”.

He concluded that the offence of indecent assault is one of absolute liability when the victim concerned is underage and thus, in effect, extended the principles in So Wai Lun to indecent assault.

Leave to appeal to the Court of Final Appeal

Choi Wai Lun is the first decision in Hong Kong that deals with the reasonable belief defence in relation to an indecent assault offence.

On 22 September 2017, the Court of First Instance granted leave to appeal to the Court of Final Appeal on the ground of a point of law and great and general importance involving the following three issues:

• whether the offence of indecent assault is one of absolute liability when the victim concerned is below 16 years of age;
• whether the accused may act with the consent of an underage victim and whether the accused may rely on his genuine belief that the victim is 16 or over as a defence; and
• whether the prosecution had to prove an absence of genuine belief on the part of the accused that the victim was aged 16 or over

We will monitor this case closely.

Philip Swainston 

The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.

If you would like to discuss any of the matters discussed in this brief article, please contact:

Jeff Lane
Partner | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

For more on absolute liability and strict liability cases, read Halfway house in criminal strict liability offences.