III. Sexual abuse of children
The Crimes Ordinance , Cap. 200 , and the Prevention of Child Pornography Ordinance (“PCPO”), Cap. 579 , contain a number of offences designed to protect children against sexual abuse. These offences are apposite to Convention Articles 34, 35 and 36 relate to protecting children against sexual exploitation and abuse, involvement in unlawful sexual activity, prostitution, exploitation in pornographic performances and materials and abduction and trafficking.
A. Unlawful sexual activities performed on children
Relevant offences in the Crimes Ordinance can be found in Appendix II .
The Crimes Ordinance (CO) contains offences designed to protect persons under 16 years of age from themselves. Under section 122 (indecent assault) for example, a person under 16 years of age cannot consent to an act that would otherwise be unlawful under the section. Indecent assault is the application of force in circumstances of indecency. Sexual activity, short of intercourse with a person under 16 years of age is an offence even if the person under 16 consented to such activity. Ignorance of the age of the person indecently assaulted is no defence.
Under section 123 of the CO , in the case of sexual intercourse with a girl under 13 years of age, and under section 124 of the CO , sexual intercourse with a girl under 16 years of age, consent is similarly no defence. Both sections are intended to protect girls under 16 years of age from themselves and avoid pregnancy at too young an age. A person’s lack of knowledge of the age of the girl concerned is similarly no defence. Section 123 offences are punishable with imprisonment for life. Section 124 offences are punishable with imprisonment for five years. Particularly with section 123 and 124 offences defendants’ rights must be balanced against the interests of protecting the child and the interests of society. Suggestions that somehow the child encouraged or instigated the sexual activity should have no weight either as a defence or in mitigation, particularly where the defendant was aware of the age of the girl, had groomed the girl for sexual activity, was in a position of responsibility or the circumstances were such that the defendant should have enquired about the age of the girl concerned.
B. Abduction of an unmarried girl
Under section 126 of the CO it is an offence to take an unmarried girl under the age of 16 out of the possession of her parent or guardian without lawful authority or excuse. This offence is punishable by imprisonment for 10 years. This offence recognises the importance of persons, particularly females under the age of 16, being with their parent or guardian. Section 126 of the CO is directed towards preserving the family unit. It also recognises and projects parental rights and the importance of the family as the basic unit of society upon which so much emphasis is placed by the Convention.
Section 127 of the CO makes it an offence to take an unmarried girl under the age of 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 a particular man. Unlawful sexual intercourse in this context means sexual intercourse outside of marriage. Again this section is designed both to protect the girl and preserve the family unit. The section covers the situation where the girl is a willing participant in the proposed sexual intercourse. There is no need that sexual intercourse should actually occur: it is the intention with which the girl is taken out of the possession of her parent or guardian that matters. The offence is punishable by imprisonment for seven years.
C. Sex tourism and extra-territorial sexual crimes related to children
In accordance with objectives of the Convention, Hong Kong has amended the Crimes Ordinance , Cap.200 , to add an extra-territorial reach in relation to sexual tourism by adding a new section to the Ordinance, section 153P . Under section 153P , a person who commits any act outside of Hong Kong against a child that would have amounted to an offence specified in Schedule 2 of the Crimes Ordinance had it been committed in Hong Kong, commits an offence if he/she is either: (a) a permanent resident of the HKSAR or ordinarily resides in the HKSAR; or (b) the victim is a permanent resident or ordinarily resides in Hong Kong. Schedule 2 offences range from sexual intercourse with girls under 13 and under 16, causing or encouraging prostitution of, intercourse with, or indecent assault on a girl or boy under the age of 16, to administering drugs to obtain or facilitate an unlawful sexual act.
The purpose, extent and reach of the section, and its compatibility with the Basic Law of the HKSAR and the Hong Kong Bill of Rights, is demonstrated by a decision of the Court of Appeal in HKSAR v Lee Kwok Wah Francis . The defendant was convicted of three offences of sexual intercourse with a girl under 16 years of age contrary to sections 124(1) and 153P(1) of the Crimes Ordinance , Cap. 200 . He was also convicted of indecent conduct towards a child under the age of 16 years, contrary to sections 146(1) and 153P(1) of the Ordinance and of indecent assault upon another girl contrary to sections 122(1) and 153P(1) of the Crimes Ordinance . The offences occurred at a children’s home in Mainland China where the two victims resided.
On appeal he argued that the extra-territorial effect of section 153P discriminated against him as a Hong Kong permanent resident by violating the principle of equality before the law under Article 25 of the Hong Kong Basic Law and his entitlement to rights without distinction and protection against discrimination under Articles 1(1) and 22 of the Hong Kong Bill Of Rights .
In dismissing the appeals the Court of Appeal ruled that the United Nations Convention on the Rights of the Child was intended to protect children against sexual exploitation. Hong Kong was required to enact legislation to protect children against sexual exploitation. This included legislating against sexual tourism. By criminalising sexual abuse of children which occurred outside Hong Kong, section 153P was legitimately striking at paedophiles who committed such acts outside Hong Kong and then returned to the SAR. The section was legitimate and proportionate.