Court of Final Appeal clears Hong Kong man of sex charge against 13-year-old girl who claimed to be 17 on dating website
High Court ‘was wrong’ to disregard defendant’s belief girl was 17 at time of sex act
A man who received a sex act from a 13-year-old girl was cleared of indecent assault on Wednesday by Hong Kong’s top court, because he “honestly and reasonably” believed the girl was 17.
Five Court of Final Appeal judges unanimously found a lower appeal court was wrong when it sided with prosecutors to overturn Choi Wai-lun’s acquittal in 2015.
They said Choi’s belief that the girl was past the age of consent was “a good defence” against the indecent assault charge – so long as he could prove it.
Chief Justice Geoffrey Ma Tao-li wrote in a 31-page judgment: “The court unanimously allows the appeal … and awards the appellant costs.”
The appeal raised the question of whether a person is guilty of indecent assault if he has consensual sex with a minor who he honestly and reasonably believes to be 16 or older.
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Choi, 25, was among five men prosecuted for indecent assault and unlawful sexual intercourse with a girl under the age of 16, after receiving sexual services from the 13-year-old, who claimed to have “attempted compensated dating” out of “curiosity” in 2014. “Compensated dating” is a term for an arrangement where one person pays another for companionship and often sex.
While the others pleaded guilty and received probation of up to 18 months, Choi contested his case.
The court heard that Choi met the girl through an advertisement placed on an adult website, in which she said she was 17.
Choi, who was 22 at the time and a University of Hong Kong student, testified that he did not suspect she was underage because of her appearance and the way she spoke.
Trial magistrate Peter Hui Shiu-keung noted in his verdict that the girl “really looked more mature than her actual age and did not look like a 13-year-old” when she testified, given “her appearance, build and speaking tone”.
Hui also took into account the girl’s “deliberate attempt to appear to be mature when meeting her clients” in the way she dressed.
Choi was acquitted after Hui observed there was “no apparent reason” for the defendant to be suspicious of the girl’s age and that the prosecution did not rebut “the defence that the defendant honestly and reasonably believed that [the girl] was aged 16 or above”.
The acquittal was reversed last year by the High Court, which found Choi had to be convicted because the offence is one of absolute liability – meaning that a defendant’s state of mind did not matter if he committed the act.
But the top court pointed out that the present case was “clearly distinguishable” from a key judgment deputy High Court judge Mr Justice Stanley Chan Kwong-chi cited as precedent, which said that claiming not to know a girl’s age was not a defence for having sex with minors.
Mr Justice Roberto Ribeiro also noted that the law on criminal liability had developed since that judgment, with courts now recognising three intermediate alternatives to absolute liability and full mens rea, meaning the prosecution must prove the defendant’s knowledge, intention or recklessness.
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He found that absolute liability was not necessary, given there is a less Draconian alternative, to achieve the statutory purpose of the offence: to treat the underage as “a vulnerable class in need of a high degree of protection against sexual exploitation”.
The judge further concluded that the defendant has “a good defence if he can prove on the balance of probabilities that he honestly and reasonably believed the girl was 16 or over”.
“A man who says, ‘I honestly and reasonably believed the girl was old enough to consent,’ ought to be required to persuade the court or jury that he probably did in fact so believe, a matter which he is best placed to explain,” Ribeiro said.
“It is a suitably demanding standard, designed to encourage men to steer clear of indecent conduct with young girls who may fall within the protected class.”
Eric Cheung Tat-ming, the University of Hong Kong’s principal law lecturer, said it would be a challenge for a defendant to convince a trial judge or jury that he held an honest, resonable belief in the age of his alleged victim.
“The court would also have to consider how closely the alleged victim resembles a 16-year-old and the circumstances of the incident,” he said. “The present case is a good example, with the magistrate observing the girl to determine the plausibility of the defendant’s claim.”
The Law Reform Commission is currently examining submissions collected through a consultation exercise on the same subject, and is expected to draft recommendations after studying those submissions and the present judgment.