OVERVIEW
Understanding the offence of indecent assault.
Indecent Assault is the sexual offence that we most often encounter in our practice. The offence carries a maximum sentence of imprisonment of 10 years. Indecent Assault covers a vast range of conduct from touching to non-penile sexual penetration. For this reason, charges of indecent assault are heard in the Magistrates Court, the District Court and the High Court. An indecent assault by touching alleged to have been committed on the MTR, for instance, is likely to be heard in the Magistracy. The indecent assault of a minor by a person in a position of trust is more likely to be heard in the District Court. The venue (decided by the Department of Justice) will depend on the facts of the case. The ingredients of the offence are that the accused intentionally assaulted the victim; the assault is capable of being considered by right-minded people as being indecent; and that the accused intended to commit the assault in that way. Indecent Assault on the MTR is a prevalent offence, one which the Court of Appeal has determined should normally attract a deterrent sentence of a short period of imprisonment. Evidence sought by those investigating indecent assaults on the MTR may include Octopus cards (to show the pattern and timing of travel of the suspect on the MTR) or the underpants of a suspect (to ascertain if there is any emission of semen).
STATUTORY PROVISIONS
Section 122 of the Crimes Ordinance (Cap. 200)
The relevant part of the current statutory provision states:
Section 122(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 10 years.
Section 122(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.
Application
The prosecution must prove an assault that, viewed objectively, was indecent. Consent and the accused's belief concerning consent are central where raised.
The accused must intentionally commit the act constituting the assault and intend the circumstances that make it indecent, applying the governing law on consent.
Legal Consent and Restrictions
- Age of Consent: A person under the age of 16 cannot legally give consent to an act that constitutes an indecent assault.
- Mental Capacity: A woman who is a mentally incapacitated person cannot in law give valid consent, though a defendant is only guilty by reason of that incapacity if they knew or had reason to suspect that she was a mentally incapacitated person.
- Consent Validity: Consent must be genuine, informed and given freely. Fraud or deception may invalidate consent where it prevents true and informed agreement to the nature of the act.
IMPORTANT CASE
HKSAR v Choi Wai Lun, FACC No. 11 of 2017
The Court of Final Appeal considered whether indecent assault involving a person under 16 is an offence of absolute liability where the accused honestly and reasonably believed that the person was aged 16 or over. The Court unanimously allowed the appeal.
Section 122(2) makes the actual consent of a person under 16 legally ineffective for the purposes of indecent assault. However, the accused's state of mind concerning age remains relevant. Where the conduct was in fact consensual, the accused may avoid liability by proving, on the balance of probabilities, an honest and reasonable belief that the person was aged 16 or over.
Three questions of law of great and general importance were certified for determination by the Court of Final Appeal:
- Whether an offence contrary to sections 122(1) and 122(2) of the Crimes Ordinance (Cap. 200), taken together, is an offence of absolute liability when the alleged victim is under 16 years of age.CFA: No.
- Whether an accused charged under section 122(1) with indecently assaulting a person under 16 can rely on the person's actual consent and the accused's genuine belief that the person was aged 16 or over.CFA: No. Actual consent is deemed irrelevant. The defence requires proof of an honest and reasonable belief that the person was aged 16 or over.
- Whether, in a prosecution under section 122(1) involving a person under 16, the prosecution must prove that the accused did not genuinely believe the person was aged 16 or over.CFA: No.
Maximum Penalty
The maximum penalty on conviction on indictment is 10 years' imprisonment.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.