Hong Kong’s highest court has overturned the conviction of a university student for engaging in sexual conduct with a 13 year-old girl because he “honestly and reasonably” believed the child to be aged 17.
Choi Wai-lun, 25, was charged with indecent assault for having oral sex with the girl in 2014. He was originally acquitted by a magistrate but was later found guilty by the High Court on appeal.
The court heard that Choi visited an adult website in 2014 in which the girl claimed to be 17-years-old and offered paid sexual services. They met a guest house where they showered together before the girl performed oral sex on Choi.
Choi told the court that he had received a half-length photo of the girl and did not suspect that she was a minor. He said the girl was relatively tall with “well-developed bodily features,” and spoke in a mature manner. The girl also testified that she would dress more maturely when meeting clients.
The magistrate noted, after observing the girl in court, that she looked older and behaved more maturely than her actual age.
A person commits an offence of indecent assault if they intentionally touch someone without that person’s consent. Under the Crimes Ordinance, anyone under the age of 16 cannot in law give any consent to prevent an act from being an assault.
Reversing the acquittal last year, the High Court found Choi guilty even though the girl consented to the sexual act. The court said indecent assault is an offence of absolute liability, meaning that a mistake of fact – that Choi genuinely thought that the girl was over 16 years old – is not a defence.
But five Court of Final Appeal judges clarified the law on Wednesday in a unanimous judgment, saying that the lower appellate court was wrong in its interpretation.
The court said that whether an underage victim consented or not is irrelevant for the purpose of indecent assault. However, a defendant has a “good defence” if they can prove that they genuinely – albeit mistakenly – believed the victim to be over 16 years old.
The key is whether the defendant had an “honest and reasonable belief” as to the victim’s age, the court said.
Michelle Tam of NGO End Child Sexual Abuse Foundation expressed concern that the judgment would set a bad precedent, making it easier for defendants in similar cases to get away with indecent assault charges.
“Our concern is the interest of underage children after all. We want to make sure they are protected from sexual abuses,” she told Apple Daily.
But barrister Jackson Poon said the Court of Final Appeal judgment is fair and reasonable, as it balances the interests of the defendants and victims. He said it is not possible to generalise over whether the judgment will make prosecutions more difficult, as each case is judged on its merits.
Besides Choi, three others – aged between 17 and 51 – were also previously convicted in the same magistrate’s court for paying the girl for sexual services. They were handed probation orders from 12 to 18 months.