Unlawful sexual intercourse with a girl under 13 years’ of age is an offence contrary to Section 123 of the Crimes Ordinance (Chapter 200). The maximum punishment is life imprisonment. Section 123 offences are more serious than Section 124 offences, which deal with girls under 16 years’ of age, because of the younger age of the girls.
The offence is complete upon proof of sexual intercourse with a girl and proof that at the time of the sexual intercourse the girl was under 13 years of age. That the girl consented and/or that the defendant believed the girl was over 13 years’ of age are not defences to this charge. The offence is an absolute liability offence. The objective of the legislation is the protection of girls under 13 years of age. The emphasis is upon deterrence. Belief that the girl was over 13 and/or her consent to sexual intercourse may however be relevant to sentence, though the relevance may not be significant because of the emphasis upon the protection of extremely young girls.
The offence is complete upon proof of sexual intercourse and proof that at the time of the sexual intercourse the girl was under 16 years’ of age. That the girl consented and/or that the defendant believed the girl was over 16 years’ of age are not defences to this charge. The offence is an absolute liability offence. The objective of the legislation is the protection of girls under 16 years’ of age. These matters may however be relevant in mitigation of sentence.
“Child” means a person under 16 years’ of age.
“Child pornography” is defined as any photograph, film, computer generated image or other visual depiction that is a pornographic depiction of a person who is or is depicted as being a child. Pornographic depiction means a visual depiction:
The pornography may be by electronic or other means, and includes data stored in a form that is capable of being converted into a photograph, film, image, such as a computer file.
A person “publishes” child pornography if he or she:
It is an offence at common law for a person to do an act or acts which outrage public decency.
The maximum punishment for the offence is 7 years imprisonment. As the offence is a common law offence, there is no specified punishment in any Ordinance in Hong Kong. The maximum punishment of 7 years imprisonment is provided by Section 101I of the Criminal Procedure Ordinance (Chapter 221) which sets out the maximum penalty for offences which are not created by a Hong Kong Ordinance.
The offence is intended to prevent the corruption of the mind and the destruction or erosion of values of decency, morality and good order. The focus is upon the defendant’s action and its effect upon members of the public. In considering the effect upon members of the public, the courts apply the standards of right thinking members of the community.
In general, the offence applies to all grossly scandalous behaviour or behaviour that openly outrages indecency or is offensive and disgusting, or is injurious to public morals by tending to corrupt them.
The prosecution must prove that the activity complained of was committed in public. That means the offence must be committed in circumstances where there is a real possibility of members of the public witnessing the act. What is done must be sufficiently lewd, obscene or disgusting to be an outrage to public decency. It is not necessary for the prosecution to prove that persons who witnessed the act were outraged. Though the prosecution can call evidence from persons who witnessed the act, ultimately the question of whether the act outrages public decency is for the court trying the case.
It is not necessary to prove that the defendant intended to outrage public decency or was reckless whether or not the public would be outraged. It is sufficient for the prosecution to prove the defendant intended to do the act which gives rise to the allegation of outraging pubic decency. Example of this offence includes indecent exposure in public.
It is an offence contrary to Section 132(1) of the Crimes Ordinance (Chapter 200) to procure a girl under 21 years’ of age to have unlawful sexual intercourse in Hong Kong or elsewhere with a third person.
The maximum penalty for this offence is 5 years’ imprisonment.
To “procure” is to produce or bring about by endeavour. There must be a causal link between what was done by the defendant and the unlawful sexual intercourse with a third person. There will be no “procurement” if the girl acted of her own free will. For example, there will be no procurement if a woman is already a prostitute.
The maximum penalty for this offence is imprisonment for 14 years.
An unlawful sexual act is defined as:
The offence has no age requirement, nor is it gender specific. The threats or intimidation must bring about an unlawful sexual act. For example, threatening to tell others of previous sexual acts in order to have sexual intercourse or further sexual intercourse will breach Section 119. Another example would be threatening to post nude photographs if further intercourse is not consented to. Section 119 offences are often related to illegal money lending. The debtor who cannot repay what has been borrowed may be threatened or intimidated into performing sexual activity to settle the outstanding loan and interest. The borrower is literally forced into prostitution.
In Hong Kong, rape can only be committed by a man upon a woman. A man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it and at the time he knows she does not consent or is reckless whether she consents or not. A woman who helps or encourages a man to rape a woman may be charged with aiding and abetting rape.
An indecent assault is an assault coupled with circumstances of indecency. Some conducts are clearly indecent, for example, touching of the genitals without consent. However, other conducts such as the touching of buttocks or kissing may not always be clear-cut, and such matters as the relationship between the accused and the victim and the background and circumstances leading to the conduct may need to be considered. The prosecution must prove: (1) that the accused intentionally assaulted the victim; (2) that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; (3) that the accused intended to commit such an assault as is referred to in (2) above.
Consent is a defence to indecent assault. However persons under 16 years of age cannot consent to activity which amounts to an indecent assault. Any consent must be a true and informed consent. Consent obtained by a fraud or by deception as to the nature of the activity is not a true and informed consent. Whether or not there was consent is a question of fact and will depend upon the circumstances of the particular case.
It is an offence contrary to Section 146 of the Crimes Ordinance (Chapter 200) for a person to commit an act of gross indecency with or towards a child under the age of 16, or to incite a child under the age of 16 to commit such an act with or towards him or her. The offence is not gender specific and can be committed both by a man and by a woman.
The maximum penalty for this offence is 10 years’ imprisonment.
The act committed by the defendant must be grossly indecent. This means that the act or acts in question must be grossly indecent applying the standards of right thinking members of the community. “Gross indecency” is more than merely indecent. Whether the conduct is grossly indecent will depend upon the circumstances of the particular case.
A Section 146 offence is committed either by the defendant doing a grossly indecent act towards the child or by inciting the child to commit a grossly indecent act with or towards the defendant. “Incite” means to “encourage”. Persons who invite or encourage the child to commit a grossly indecent act upon them commit an offence just as if they had done a grossly indecent act towards the child. Even though the defendant might remain passive during the activity, a Section 146 offence is committed if the grossly indecent activity by the child upon the defendant follows invitation or encouragement by the defendant. An example would be where the defendant exposes his or her private parts and invites the child to touch those private parts.
It is immaterial whether the child consented to the acts which were done to him or her or agreed to the acts he or she was invited to do upon the defendant. Once the acts and the age of the child are proved, the defendant will be convicted.
The word “prostitute” is defined by Section 117(1) of the Crimes Ordinance (Chapter 200), as referring to a person of either sex. A prostitute is a man or a woman who offers his or her body commonly for acts of lewdness in return for payment. Sexual intercourse is not a pre-condition for prostitution.
It is an offence contrary to Section 147 of the Crimes Ordinance (Chapter 200) to solicit in a public place or in the view of the public for an immoral purpose or to loiter in a public place for the purposes of soliciting for an immoral purpose.
The maximum penalty for this offence is a fine of $10,000 and imprisonment for 6 months.
A “public place” is:
The most straightforward example of soliciting for an immoral purpose in a public place is the prostitute who approaches persons in the street and offers sexual services in return for payment. Other, more sophisticated soliciting may involve advertisement on the Internet. The common factor is the active offering of sexual services in return for payment, giving the word “solicit” its usual meaning of asking for something. What is asked for is money, what is offered in return is sexual activity.
The standard for “immoral purpose” is the contemporary standard of morality. Soliciting for prostitution in a public place is soliciting for an immoral purpose. The words “immoral purpose” cover such acts as buggery and acts of gross indecency as well as sexual intercourse.
It is an offence contrary to Section 135 of the Crimes Ordinance (Chapter 200) for a person to cause or encourage the prostitution of, or an unlawful sexual act with a girl or boy under the age of 16 for whom that person is responsible.
The maximum punishment is imprisonment for 10 years.
“Prostitution” means a man or a woman offering his or her body commonly for acts of lewdness in return for payment. Prostitution does not require sexual intercourse though frequently that will occur. The essence of prostitution is the offer of the body for acts of lewdness in return for payment.
A person is responsible for the girl or boy if he or she is the parent or guardian of the girl or boy, has actual possession or control of the girl or boy, or has the custody, charge or care of the girl or boy.
The ordinary meaning of “encourage” is suggesting by words and/or by actions that something should happen. The prosecution must prove that the defendant actively encouraged the prostitution or the unlawful sexual act. This is a question of fact in each case. Prostitution may be caused or encouraged by knowingly allowing the boy or girl to consort with prostitutes or enter or continue in the employment of any prostitute or person of known immoral character. Allowing a girl or boy under the age of 16 for whom the defendant is responsible to work or to continue to work in premises where the defendant knows that prostitution or unlawful sexual acts take place would likely be seen as encouragement for the purposes of Section 135.
The maximum penalty is imprisonment for 10 years.
The essence of the offence is knowingly receiving money from the acts of prostitution or knowingly being supported by the prostitute from the proceeds of that prostitution. The offence is sometimes referred to simply as “living on” which aptly describes the parasitic nature of the offence. The word “person” in Section 137 confirms that the offence may be committed by a man or by a woman. Simply receiving money from a prostitute, for example as payment for food or accommodation supplied, is insufficient for a conviction under Section 137. The circumstances of the defendant’s relationship with the prostitute and the circumstances in which the payment was received from the prostitute must be considered. The prosecution must prove the defendant knew that he or she was living on wholly or partly the earnings of prostitution.
There are 3 distinct situations which the prosecution can rely upon when trying to prove an offence under Section 137. These are:
In either or those circumstances the defendant is presumed to be knowingly living on the earnings of prostitution.