Hong Kong - Sexual Consent

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HONG KONG

 

Source:  http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/

China - Chine - China                        Hong Kong
I. Ages for legal purposes
Age of simple majority           The legal age of majority is eighteen (18) years

Age of consent for sexual activity
The legal age of consent for sexual activity is sixteen (16) years (Crimes Ord., Cap 200).

Age of consent for marriage
The legal age of consent for marriage is twenty-one (21) years (Marriage Ord., Cap 181).

Definition of a ‘child’
A person under fourteen (14) years old (Juvenile Offenders Ord., Cap 226).

Definition of a ‘juvenile'
A person between fourteen (14) and eighteen (18) years old (Protection of Children and Juvenile Ord., Cap 213).

Definition of a ‘young person’
A person between fourteen (14) and sixteen (16) years old (Juvenile Offenders Ord., Cap 226)

II. Rape
‘Rape’, Article 118 of the Penal Code, " Sexual Offences ", CAP. 200

" (1) A man who rapes a woman shall be guilty of an offence and shall be liable on conviction on
indictment to imprisonment for life.

(2) A man who induces a married woman to have sexual intercourse with him by impersonating
her husband, commits rape.

(3) A man commits rape if -

a) he has unlawful sexual intercourse with a woman who at the time of the
intercourse does not consent to it ; and

b) at that time he knows that she does not consent to the intercourse or he is
reckless as to whether she consents to it.

(4) It is thereby declared that if at a trial for a rape offence the jury has to consider whether a man
believed that a woman was consenting to sexual intercourse, the presence or absence or
reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction
with any other relevant matters, in considering whether he so believed.

(5) In relation to such a trial as is mentioned in subsection (4) which is a trial in the District
Court or a summary trial before a magistrate or in a juvenile court, references to the jury in that
subsection shall be construed as references to the District Court, the magistrate or the juvenile
court, as the case may be. "

III. Other forms of child sex abuse
‘Non-consensual buggery’, Article 118A of the Penal Code, " Crimes ", CAP. 200

" A person who commits buggery with another person who at the time of the buggery does not
consent to it shall be guilty of an offence and shall be liable on conviction on indictment to
imprisonment for life. "

‘Assault with intent to commit buggery’, Article 118B of the Penal Code, " Crimes ", CAP. 200

" A person who assaults another person with intent to commit buggery shall be guilty of an offence
and shall be liable on conviction on indictment to imprisonment for ten (10) years. "

‘Homosexual buggery with or by man under twenty-one (21)’, Article 118C of the Penal Code, " Crimes ", CAP.
200
" A man who -
a) commits buggery with a man under the age of twenty-one (21) ; or
b) being under the age of twenty-one (21) commits buggery with another man, shall
be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life. "


‘Buggery with girl under twenty-one (21)’, Article 118D of the Penal Code, " Crimes ", CAP. 200
" A man who commits buggery with a girl under the age of twenty-one (21) shall be guilty of an
offence and shall be liable on conviction on indictment to imprisonment for life. "

‘Gross indecency with or by man under twenty-one (21)’, Article 118H of the Penal Code, " Crimes ", CAP. 200
"A man who -
a) commits an act of gross indecency with a man under the age of twenty-one (21) ; or
b) being under the age of twenty-one (21) commits an act of gross indecency with another man,
shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for
two (2) years. "

‘Indecent assault’, Article 122 of the Penal Code, " Crimes ", CAP. 200
" (1) Subject to subsection (3), a person who indecently assaults another person shall be guilty of
an offence and shall be liable on conviction on indictment to imprisonment for ten (10) years.

(2) A person under the age of sixteen (16) cannot in law give any consent which would prevent
an act being an assault for the purposes of this section.

(3) A person is not, by virtue of subsection (2), guilty of indecently assaulting another person, if
that person is, or believes on reasonable grounds that he or she is, married to that other person.

(4) A woman who is a defective cannot in law give any consent which would prevent an act being
an assault for the purposes of this section, but a person is only to be treated as guilty of indecently
assaulting a defective by reason of that incapacity to consent, if that person knew or had reason
to suspect her to be a defective. "

‘Intercourse with a girl under thirteen (13)’, Article 123 of the Penal Code, " Crimes ", CAP. 200
" A man who has unlawful sexual intercourse with a girl under the age of thirteen (13) shall be guilty
of an offence and shall be liable on conviction on indictment to imprisonment for life. "

‘Intercourse with a girl under sixteen (16)’, Article 124 of the Penal Code, " Crimes ", CAP. 200
" (1) Subject to subsection (2), a man who has unlawful sexual intercourse with a girl under the age
of sixteen (16) shall be guilty of an offence and shall be liable on conviction on indictment to
imprisonment for five (5) years.

(2) Where a marriage is invalid under section 27(2) of the Marriage Ordinance (Cap. 181) by
reason of the wife being under the age of sixteen (16), the invalidity shall not make the husband
guilty of an offence under this section because he has sexual intercourse with her, if he believes
her to be his wife and has reasonable cause for the belief. "

‘Abduction of an unmarried girl under eighteen (18) for sexual intercourse’, Article 128 of the Penal Code,
" Crimes ", CAP. 200

" (1) A person who takes an unmarried girl under the age of eighteen (18) out of the possession of
her parent or guardian against the will of the parent or guardian with the intention that she shall
have unlawful sexual intercourse with men or with a particular man shall be guilty of an offence and
shall be liable on conviction on indictment to imprisonment for seven (7) years.

(2) In subsection (1), ‘guardian’ means any person having the lawful care or charge of the girl. "

‘Permitting a girl or boy under thirteen (13) to resort to or be on premises or vessel for intercourse’, Article 140
of the Penal Code, " Crimes ", CAP. 200
" An owner or occupier of any premises or vessel, and any person who manages or assists in the
management or control of any premises or vessel, who induces or knowingly suffers a girl or boy
under the age of thirteen (13) to resort to or be on such premises or vessel for the purpose of doing
an unlawful sexual act or for the purpose of prostitution, shall be guilty of an offence and shall be
liable on conviction on indictment to imprisonment for life. "

‘Permitting a young person to resort to or be on premises or vessel for intercourse, prostitution, buggery or
homosexual act’, Article 141 of the Penal Code, " Crimes ", CAP. 200
" An owner or occupier of any premises or vessel, and any person who manages or assists in the
management or control of any premises or vessel, who induces or knowingly suffers -

a) a girl under the age of sixteen (16) to resort to or be on such premises or vessel
for the purpose of having unlawful sexual intercourse with a man or for the
purpose of prostitution ;

b) a girl or boy under the age of twenty-one (21) to resort to or be on such
premises or vessel for the purpose of committing buggery with a man ; or

c) a boy under the age of twenty-one (21) to resort to or be on such premises or
vessel for the purpose of committing an act of gross indecency with a man,

shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for
fourteen (14) years. "

‘Indecent conduct towards a child under the age of sixteen (16) years’, Article 146 of the Penal Code, " Crimes ",
CAP. 200
" (1) Subject to subsection (3), a person who commits an act of gross indecency with or towards a
child under the age of sixteen (16), or who incites a child under the age of sixteen (16) to commit
such an act with or towards him or her or another, shall be guilty of an offence and shall be liable on
conviction on indictment to imprisonment for ten (10) years.

(2) It shall not be a defence to a charge under this section to prove that the child consented to the
act of gross indecency.

(3) A person who commits an act of gross indecency with or towards a child or who incites a child
to commit such an act with or towards him or her is not guilty of an offence under this section if
that person is, or believes on reasonable grounds that he or she is married to the child. "

‘Incest by men’, Article 47 of the Penal Code, " Crimes ", CAP. 200
" (1) Any man who has sexual intercourse with a woman, who is to his knowledge his
granddaughter, daughter, sister or mother, shall be guilty of an offence and shall be liable on
conviction upon indictment to imprisonment for fourteen (14) years :

Provided that if, on an indictment for any such offence, it is alleged in the indictment and proved
that the woman is under the age of thirteen (13) years, the same punishment may be imposed as
may be imposed under Section 123.

(2) It is immaterial that the sexual intercourse was being done with the consent of the woman.

(3) Any man who attempts to commit any such offence as aforesaid, or who incites a girl under the
age of sixteen (16) years, who is to his knowledge his granddaughter, daughter or sister, to have
sexual intercourse with hem, shall be guilty of an offence triable summarily or upon indictment
and shall be liable on conviction to imprisonment for two (2) years.

(4) (...) "

‘Incest by women of or over sixteen (16)’, Article 48 of the Penal Code, " Crimes ", CAP. 200
" Any woman of or above the age of sixteen (16) years who with consent permits her grandfather,
father, brother or son to have sexual intercourse with her (knowing him to be her grandfather,
father, brother or son, as the case may be) shall be guilty of an offence and shall be liable on
conviction upon indictment to imprisonment for fourteen (14) years. "

IV. Child prostitution
‘Trafficking in persons to or from Hong Kong’, Article 129 of the Penal Code, " Crimes ", CAP. 200
" (1) A person who takes part in bringing another person into, or taking another person out of
Hong Kong for the purpose of prostitution shall be guilty of an offence and shall be liable on
conviction on indictment to imprisonment for ten (10) years.

(2) It shall not be a defence to a charge under this section to prove that the other person
consented to being brought into or taken out of Hong Kong whether or not she or he knew it was
for the purpose of prostitution or that she or he received any advantage therefor. "

‘Control over persons for purpose of unlawful sexual intercourse or prostitution’, Article 130 of the Penal Code,
" Crimes ", CAP. 200
" (1) A person who -

a) harbours another person or exercises control or direction over another person
with the intention that that person shall do unlawful sexual acts with others ; or

b) harbours another person or exercises control, direction or influence over
another person for the purpose of or with a view to that person’s prostitution,

-shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for
fourteen (14) years.

(2) A person shall not be convicted of an offence under this section on the evidence of one witness
only, unless the witness is corroborated in some material particular by evidence implicating the
accused. "

‘Causing or encouraging prostitution of , intercourse with, or indecent assault on a girl or boy under sixteen
(16)’, Article 135 of the Penal Code, " Crimes ", CAP. 200
" (1) A person who causes or encourages the prostitution of or an unlawful sexual act with a girl or
boy under the age of sixteen (16) for whom that person is responsible, shall be guilty of an offence
and shall be liable on conviction on indictment to imprisonment for ten (10) years.

(2) Where a girl or boy is a prostitute or has done an unlawful sexual act, a person shall be
deemed for the purpose of this section to have caused or encouraged the same if that person
knowingly allowed the girl or boy to consort with, or to enter or continue in the employment of,
any prostitute or person of known immoral character.

(3) Subject to subsection (4), the persons who for the purposes of this section are to be treated as
responsible for a girl or boy are -

a) any person who is her or his parent or legal guardian ;

b) any person who has actual possession or control of her or him, or to whose
charge she or he has been committed by her or his parent or legal guardian or by a
person having the custody of her or him ;

c) any other person who has the custody, charge or care of her or him.

(4) In subsection (3), ‘parent’ does not include, in relation to any girl or boy, a person deprived
of her or his custody by order of a court of competent jurisdiction but, subject to that, in the case
of a girl or boy who has been adopted under the Adoption Ordinance (Cap . 290) means her or
his adopters and in the case of a girl or boy who is illegitimate, and has not been so adopted,
means her or his mother and any person who has been adjudged to be her or his putative father. "

‘Living on the earnings of prostitution of others’, Article 137 of the Penal Code, " Crimes ", CAP. 200
" (1) A person who knowingly lives wholly or in part on earnings of prostitution of another shall be
guilty of an offence and shall be liable on conviction on indictment to imprisonment for ten (10)
years.

(2) For the purposes of subsection (1), a person who lives with or is habitually in the company of
a prostitute, or who exercises control, direction or influence over another person’s movements in
a way which shows he or she is aiding, abetting or compelling that other person’s prostitution
with others, shall be presumed to be knowingly living on the earnings of prostitution, unless he or
she proves the contrary. "

V. Child pornography
‘Prohibition on publishing obscene articles’, Article 21 of the Penal Code, " Control of Obscene and Indecent
Articles ", CAP. 390
" (1) Subject to subsection (2) any person who -
a) publishes ;
b) possesses for the purpose of publication ; or
c) imports for the purpose of publication,
any obscene article, whether or not he knows that it is an obscene article, any obscene article,
commits an offence and is liable to a fine of $ 1.000.000 and to imprisonment for three (3) years.

(2) (...) "

‘Prohibiting on publishing an indecent article to a juvenile’, Article 22 of the Penal Code, " Control of Obscene
and Indecent Articles ", CAP. 390

" (1) Subject to subsection (2), any person who publishes any indecent article on a person who is a
juvenile, whether or not he knows that it is an indecent article or that such person is a juvenile,
commits an offence and is liable to a fine of $ 4000.000 and to imprisonment for twelve (12) months
on his first conviction, and to a fine of $ 800.000 and to imprisonment for twelve (12) months on a
second or subsequent conviction.

(2) (...) "

‘Prohibition on display of indecent matter’, Article 23 of the Penal Code, " Control of Obscene and Indecent
Articles ", CAP. 390

" (1) If any indecent matter is publicly displayed, the person making display and any person causing
or permitting the display to be made, whether or not he knows that the matter is indecent, commits
an offence and is liable to a fine of $ 400.000 and to imprisonment for twelve (12) months on his first
conviction, and to a fine of $ 800.000 and to imprisonment for twelve (12) months on a second or
subsequent conviction.

(2) Nothing in this section shall apply in relation to any matter-

a) included in a television broadcast by a company licensed to broadcast under
the Television Ordinance (CAP. 52) ; or

b) included in the display of an article in a bona fide art gallery or museum and
visible only from within that gallery or museum. "

‘Prohibition on possession of an indecent article for the purposes of publication’, Article 27A of the Penal Code,
" Control of Obscene and Indecent Articles ", CAP. 390

" (1) (...) any person who possesses for the purpose of publication any indecent article (...) whether
or not he knows that it is an indecent article, (...), commits an offence and is liable to a fine of $
400.000 and to imprisonment for twelve (12) months on his first conviction, and to a fine of $ 800.000
and to imprisonment for twelve (12) months on a second or subsequent conviction.(...) "

 

 

It seems clear from this that R v R will be followed in Hong Kong and, for the purposes of ‘unlawful sexual intercourse’
(whether in section 118(3) or in section 117(1A)(a)) ‘unlawful’ will be treated as ‘mere surplusage’. It is unclear whether
Power VP intended his remarks to be addressed only to section 119 and rape, or also to all other offences in the Crimes
Ordinance referring to ‘unlawful’ sexual intercourse or sexual acts. If so, then this, it is submitted, would go too far - for it
would mean that a husband whose wife is aged under 16 years or is a defective, would commit an offence (against ss124(1) or 125(1), Crimes Ordinance) by having sexual intercourse with her since she cannot validly consent to sexual intercourse.   From:  http://www.hku.hk/law/criminal/crimweb8.htm

Similarly, it is generally said that consent will be invalid if it is given by a child who is too young to understand the meaning of
intercourse (Howard [1966] 1 WLR 13). The burden of proving such lack of understanding lies on the prosecution.

 

Rape

According to the Crimes Ordinance, a man commits rape if :

(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and
(b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.

And, a man who induces a woman to have sexual intercourse with him by impersonating her husband also commits rape. The
term "male" includes boys. A boy under the age of 14, however, cannot be convicted of the offence of rape because according
to the law, a boy under the age of 14 is unable to have sexual intercourse. This is an irrefutable inference. Similarly, neither can
a boy under the age of 14 be convicted of attempted rape because if he is unable to commit the main offence, he would be
unable to commit the attempted offence either. Although a boy under 14 is unable to commit rape according to the law, if he in
fact did commit rape, he would be convicted of indecent assault. And if he aided others to rape, he would also be liable to be
convicted of aiding and abetting rape.

Usually, a man cannot be convicted of raping his wife. It is because all along, it has been a stipulation of the common law that a
woman consent to have sex with her husband once she wedded him- a point that is irrefutable. The husband, however, can be
convicted of a particular sort of assault. And, the husband can be taken as having committed indecent assault or rape if the
couple is legally separated, or an injunction is laid upon him not to molest his wife, or if he has promised before the court not to
molest his wife.

Legally, sexual intercourse is the act of inserting the penis into the vagina, sex behaviour of other forms are not considered as
"sexual intercourse" Such behaviour may be legal or illegal. Sexual intercourse is considered as such regardless of how deep
the penis is inserted, neither is evidence needed to testify the occurrence of the act of ejaculation. "Unlawful" sexual
intercourse usually means sex behaviour between man and woman not officially wedded, however, sex with a partner other
than one's spouse does not necessarily constitute a criminal offence which warrants penalty.

When it comes to rape, the "intention of committing the crime" is that a man intends to have sexual intercourse with a woman :
(a) at the time he knows that she does not consent to it; or
(b) at the time he is reckless as to whether she consents to it.

If the defendant did believe that the woman consents to it, he would not be considered to have committed rape legally even
though the reason he holds is unreasonable, it is because the court cannot convict someone who has no intention to commit a
crime. As to whether the defendant really believed that the woman consents, it is left for the jury to decide.

Consent and submission are different. Consent includes submission, but mere submission does not necessarily include consent.
The key does not lie in "whether the sexual intercourse is against the woman's will", but in "whether her consent is not
obtained". It is not possible for a woman to really consent to sexual intercourse under the following circumstances :

(a) at the time when she is got drunk and was unconscious;
(b) at the time when she is fast asleep;
(c) she is mentally retarded;
(d) she is too young to understand the nature of such behaviour;
(e) she is forced to submit to it, for example, she is made to submit by somebody's force, or threatened to be treated with force
by somebody;
(f) the man impersonating her husband; and
(g) the nature of sexual intercourse is disguised by fraudulent act, for example, falsely purports it to be a surgery. However,
fraud unrelated to the nature of sex behaviour, for example, the man claims to be rich or in a single status that he can marry at
will does not constitute the aforementioned fraud.

Victims of rape should seek help from the police and Hong Kong Family Planning Association.

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