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2. Unlawful sexual intercourse with a girl under 16 years’ of age

Unlawful sexual intercourse with a girl under 16 years’ of age is an offence contrary to section 124 of the Crimes Ordinance (Cap. 200). The maximum punishment is 5 years’ imprisonment.

 

For offences where “sexual intercourse” needs to be proved, it is not necessary to prove ejaculation. The offence is complete upon proof of penetration of the vagina by the penis.

 

The offence is complete upon proof of sexual intercourse and proof that at the time of the sexual intercourse the girl was under 16 years’ of age. The fact that the girl consented and/or that the defendant believed the girl was over 16 years’ of age are not defences to this charge. The offence is an absolute liability offence. The objective of the legislation is the protection of girls under 16 years of age. These matters may however be relevant in mitigation of sentence.

 

It is, however, a defence to a charge under section 124 where the man believes the girl to be his wife and has reasonable cause for that belief even if the “marriage” is invalid because the “wife” is under 16 years of age. This is a narrow defence. It is dependent upon there having been a marriage which is invalid under section 27 of the Marriage Ordinance (Cap. 181) because the girl is under 16 years’ of age. It is not enough for the man simply to claim a belief in a marriage, there must be reasonable cause. The burden of showing reasonable cause for the claimed belief is upon the defendant. This statutory defence only applies to offences under section 124 of the Crimes Ordinance. Because the statutory defence will rarely, if ever, be established, in reality, section 124 is an offence of absolute liability.

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