Introduction

The Court of Final Appeal (“CFA”) has recently overruled the ruling of the Court of First Instance (“CFI”) that section 122(2) of the Crimes Ordinance Cap. 200 (“CO”) imposes absolute liability where the victim is in fact under the age of 16. It has further held that an accused would have a defence if he can prove on the balance of probabilities that he honestly and reasonably believed that the victim was 16 or over.

In HKSAR v Choi Wai Lun [2018] HKCFA 18, Mr Justice Ribeiro PJ outlined the thresholds necessary to put forward a defence to indecent assault.

Crimes Ordinance Cap. 200

The relevant sections in this present case include sections 122(1) and 122(2) of the CO, which provide, inter alia, that:

• a person who indecently assaults another person shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years; and
• a person under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of this section.

Issues

The following questions of law were discussed by the CFA:

• whether the indecent assault offence is an offence of absolute liability (i.e. the prosecution does not need to prove the mental element of wrongdoing) when the alleged victim is a person under 16 years of age;
• whether an accused charged under the indecent assault offence 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; and
• whether in a prosecution under the indecent assault offence 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.

Court’s findings

Upon the CFA’s findings, it was held that the answers to the 3 issues above are all negative and that actual consent by the person under the age of 16 is deemed irrelevant in this case.

A statutory offence is presumed to require proof of mens rea (i.e. the mental element or intention of wrongdoing) unless presumption is displaced expressly or by necessary implication (i.e. that the prosecution does not need to prove mens rea). In this present case, the relevant sections under the CO are silent as to the mental ingredient required regarding the other person’s age. The CFA was of the view that the presumption of mens rea is clearly displaced in respect of indecent assaults on persons under the age of 16. However, the CFA did not consider that the presumption of mens rea is displaced in favour of absolute liability regarding the victim’s age.

Applicability of So Wai Lun

One of the major issues that the CFA dealt with was the applicability of So Wai Lun v HKSAR [2006] 3 HKLRD 394 (“So Wai Lun”) which was relied on by the CFI and held that the legislative intent was that indecent assault should, alike the case of an unlawful sexual intercourse with an under-aged girl (i.e. the offence under section 124 of CO), be an offence of absolute liability.

In the case of So Wai Lun, it was concerned with unlawful sexual intercourse and not indecent assault and the Court determined that absolute liability was imposed principally on the basis of the legislative history of section 124 of CO. Yet, in the present case, it concerns with indecent assault, the legislative history of which had no equivalent of an express “reasonable belief” defence being later abolished. Moreover, the case of So Wai Lun was delivered before the recognition of intermediate bases of liability.

Three intermediate bases of liability

The CFA had considered the honest and reasonable belief defence some years ago for other strict or absolute liability offences. In Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142 and Kulemesin v HKSAR (2013) 16 HKCFAR 195, the Court held that in appropriate cases, the law permits statutes to be construed as intending to displace the presumption of mens rea in favour of an intermediate basis of liability. Five possible bases of liability were recognized, ranging from full mens rea to absolute liability with three intermediate possibilities. The gist of the five possible alternatives is as follows:

• the mens rea presumption persists and the prosecution must prove knowledge, intention or recklessness as to every element of the offence;
• the prosecution need not set out to prove mens rea, but if there is evidence capable of raising a reasonable doubt that the defendant may have acted in the honest and reasonable belief that the circumstances were such that liability would not attach, he must be acquitted unless the prosecution proves beyond reasonable doubt the absence of such exculpatory belief or that there were no reasonable grounds for such belief;
• the presumption has been displaced so that the prosecution need not prove mens rea but that the accused has a good defence if he can prove on the balance of probabilities that he acted in the honest and reasonable belief that the circumstances were such that he would not be guilty of the offence (the “third alternative”);
• the presumption has been displaced and that the accused is confined to relying on the statutory defences expressly provided for; and
• the presumption is displaced and the offence is one of absolute liability so that the prosecution succeeds if the prohibited act is proved against the accused, regardless of his state of mind regarding the relevant elements of the offence in question.

It was held that all the above alternatives should be considered as possible conclusions when construing statutory criminal offences which are silent or ambiguous as to the state of mind relevantly required.

Which alternative applies in the present case?

The CFA found that the third alternative reflects the statutory purpose of section 122(2) of CO for indecent assault. A man who claims to have honest and reasonable belief that the girl was old enough to consent ought to be required to persuade the Court that he probably did in fact so believe.

Furthermore, as such reverse onus derogates from the constitutional right to be presumed innocent, the derogation should be justified and the Court must be satisfied with the tests that the reverse onus has a rational connection with the pursuit of a legitimate aim and that it is no more than necessary for the achievement of that aim.

Ultimately, the CFA was of the opinion that construing section 122(2) CO as imposing a burden on the accused to prove on the balance of probabilities that he honestly and reasonably believed that the girl in question was aged 16 or over is rationally connected with the legitimate aim of giving heightened protection to vulnerable under-aged girls and is no more than necessary to achieve such a level of protection.

Accordingly, the accused’s acquittal was restored and the CFI’s decision was set aside.

Takeaways

Of particular significance was the CFA’s confirmation that section 122(2) CO does not impose absolute liability where the victim is under the age of 16. The CFA also reviewed the test and guidance from other applicable case law and made important observations that the prosecution does not need to prove mens rea as to the girl’s age but the accused would have a good defence if he can prove on balance of probabilities that he honestly and reasonably believed that the girl was 16 or over. Whilst this case affirms the applicability of the intermediate bases of liability, the impact of the decision and whether the decision protects public interest are to be seen in future indecent assault cases.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.