Eric Chan (JD, PCLL) and Tiffany Wong
Hong Kong Law Journal, Volume 48, Part 3, pp. 899-924
published in December 2018
Abstract: Having sexual intercourse with a girl under 16 is an offence under s 124 of the Crimes Ordinance (Cap 200). While the prosecution need not prove mens rea as to the girl’s age, does the accused have a defence if he can prove he honestly and reasonably believed the girl was of age? In 2004, the Court of Appeal (CA) ruled no. In this article, based on recent guidance from the Court of Final Appeal in HKSAR v Choi Wai Lun, we argue yes. On a proper construction of s 124 under the modern law on strict liability, the offence is subject to a common law defence of honest and reasonable belief. This construction is not inconsistent with the legislature’s intention expressed throughout s 124’s legislative history. Contrary to the CA’s ruling in 2004, the true history of s 124 does not show that “the reasonable belief defence has been expressly rejected in Hong Kong”. The relevance of the UK Supreme Court’s decision in R v Brown will also be considered.