New Issue of Hong Kong Law Journal (Part 3 of 2018)

HONG KONG LAW JOURNAL

Vol. 48, Part 3 of 2018

Editor-in-Chief: Professor Rick Glofcheski

Associate Editor: Professor Albert Chen

Publisher: Sweet & Maxwell

    

Comment
Prohibiting the Hong Kong National Party: Has Hong Kong Violated the International Covenant on Civil and Political Rights? Carole J Petersen 789	789
Analysis
Human Trafficking and Judicial “Divination” in Hong Kong Po Jen Yap and Kenneth Lee	807
Lecture
Balancing National Security and Public Order with Human Rights: A Judicial Perspective Lord Neuberger of Abbotsbury	819
Articles
Property Rights of Cohabitants: A Comparison of Four Jurisdictions Thomas Leung Yu Hang	837
Should There Be a Limitation Period for Section 214 of the Securities and Futures Ordinance? Martin Kwan	883
Revisiting Section 124 of the Crimes Ordinance Eric Chan and Tiffany Wong	899
The Apology Ordinance: Bold Steps into Some Uncharted Areas of Apology-Protecting Legislation Prue Vines and Robyn Carroll	925
Party Autonomy and the Selection of Non-State Norms in International Commercial Contracts Jane Y Willems	953
Seventy Years On: The Taiwan Constitutional Court and Judicial Activism in a Changing Constitutional Landscape Tzu-Yi Lin, Ming-Sung Kuo and Hui-Wen Chen	995
China Law
China–Taiwan Repatriation of Criminal Suspects: Room for Human Rights? Yu-Jie Chen and Jerome A Cohen	1029
Guiding Cases as a Form of Statutory Interpretation: Expansion of Supreme People’s Court’s Judicial Lawmaking Authority in China Shucheng Wang	1067
Developments in Inter-Regional Conflict of Laws within China Meirong Zhang	1097
Revision of China’s Legislation Law: Towards a More Orderly, Fair and Just Legal System Guang Shen	1137
The Gap Between the EU and China on the ISDS Mechanisms in the Context of the EU–China BIT Negotiations: Evolving Status and Underlying Logic Lifeng Tao and Wei Shen	1159
Review Article
Convergence (or Divergence) in Private Law: Review Essay on Private Law in China and Taiwan: Legal and Economic Analyses Chang-hsien Tsai	1215

Eric Chan (JD, PCLL) and Tiffany Wong on Revisiting Section 124 of the Crimes Ordinance (HKLJ)

"Revisiting Section 124 of the Crime Ordinance"
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.