OVERVIEW
Age and the precise statutory provision determine the charge.
A man who has unlawful sexual intercourse with a girl under the age of 16 under section 124 faces a maximum sentence of 5 years of imprisonment. A man who has unlawful sexual intercourse with a girl under the age of 13 under section 123 faces a maximum sentence of life imprisonment. If convicted of unlawful sexual intercourse, the courts often look at the age difference between the parties. For example, a 17-year-old male who has sexual intercourse with his girlfriend as she approaches her 16th birthday will be treated far less severely than a 50-year-old male who targets underage girls online and pays them for sexual intercourse.
STATUTORY PROVISIONS
Sections 123 and 124 of the Crimes Ordinance (Cap. 200)
The relevant part of the current statutory provision states:
Section 123 — Intercourse with girl under 13
A man who has unlawful sexual intercourse with a girl under the age of 13 shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.
Section 124 — Intercourse with girl under 16
A man who has unlawful sexual intercourse with a girl under the age of 16 shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 5 years.
ELEMENTS OF THE OFFENCE
What the prosecution must prove.
Sexual Intercourse
The prosecution must prove penile penetration of the vagina. Under the statutory rules, the offence is complete upon the slightest penetration; proof of ejaculation is not required.
Age
The prosecution must prove that, at the precise time of the act, the victim was female and under the applicable statutory age limit—either under 13 for section 123 or under 16 for section 124. Section 118O of the Crimes Ordinance (Cap. 200) abolishes the historic common-law presumption that a boy under 14 is incapable of sexual intercourse, buggery or bestiality. Young male defendants aged 10 to 14 can be prosecuted for sexual intercourse offences.
Strict Liability
The prosecution does not need to prove that the defendant knew the victim was underage or was reckless as to her age.
Maximum Penalty
Section 123 carries life imprisonment; section 124 carries a maximum of 5 years of imprisonment, subject to the current statutory text and applicable constitutional law.
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.