HKSAR v. SO WAI LUN

HKSAR v. SO WAI LUN

The Court held that s124(1) of the Crimes Ordinance is an absolute liability offence in respect of the victim's age; the presumption of mens rea is displaced by necessary implication given the statutory scheme and legislative history (including the 1897 repeal of a belief defence) and therefore a defendant's belief that the girl was 16 or over does not constitute a defence; the Magistrate's acquittal was therefore wrong and must be reversed, with conviction entered and sentencing remitted to the Magistrate.

Citation
HKSAR v. SO WAI LUN
Parties
Appellant (prosecution): Appellant; Respondent (accused): Respondent
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 November 2004
Case Number
HCMA39/2004
Procedural Posture
Criminal Appeal (appeal Against Acquittal on a Case Stated) / Court of Appeal Hearing and Judgment (appeal Allowed; Matter Remitted to Magistrate for Sentence)
Outcome
Appeal allowed; acquittal overturned; conviction ordered under s124(1) Crimes Ordinance; matter remitted to Magistrate for sentencing
Legal Topics
Mens Rea, Absolute Liability, Age of Consent, Defences, Legislative History
Source Language
EN
Criminal Law Sexual Offences Statutory Interpretation Mens Rea Absolute Liability Age of Consent Defences Legislative History

Case Brief

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Parties

Appellant

Appellant (prosecution)

Respondent

Respondent (accused)

Procedural Posture

Criminal Appeal (appeal Against Acquittal on a Case Stated) / Court of Appeal Hearing and Judgment (appeal Allowed; Matter Remitted to Magistrate for Sentence)

Legal Issues

  1. 1 Whether belief that the complainant was 16 or older is a defence to charge under s124(1) Crimes Ordinance
  2. 2 Whether s124(1) is an absolute liability offence
  3. 3 Whether the Magistrate's acquittal was correct

Ratio Decidendi

The Court held that s124(1) of the Crimes Ordinance is an absolute liability offence in respect of the victim's age; the presumption of mens rea is displaced by necessary implication given the statutory scheme and legislative history (including the 1897 repeal of a belief defence) and therefore a defendant's belief that the girl was 16 or over does not constitute a defence; the Magistrate's acquittal was therefore wrong and must be reversed, with conviction entered and sentencing remitted to the Magistrate.

Court Disposition

Appeal allowed; acquittal overturned; conviction ordered under s124(1) Crimes Ordinance; matter remitted to Magistrate for sentencing

Orders

  • Answer to first question in Case Stated: in the negative (belief is not a defence)
  • Answer to third question in Case Stated: acquittal was incorrect