3. Buggery with a girl under the age of 21
“Buggery” is sexual intercourse by way of the anus by a man with another man.
Section 118D makes the same conduct with a girl under 21 years’ of age an offence. The offence is committed where there is penetration of the anus by the penis. The slightest penetration is sufficient: ejaculation is not necessary. Whether there has been penetration is a question of fact.
Whether or not there is consent to the buggery is irrelevant. Provided penetration is proved and the girl was under 21 years’ of age at the time, the offence is committed.
Buggery may be seen as equivalent to sexual intercourse in the traditional sense of those words. Provided there is consent, sexual intercourse between a man and a woman aged 16 is not unlawful. Arguments may, therefore, arise whether section 118D is unconstitutional insofar as it applies to a girl aged 16 or above but below 21, because it discriminates unfairly between sexual intercourse and buggery. It may be suggested that the different age limits for permissible sexual intercourse and permissible buggery with a girl infringe the right of equality contained in the Basic Law and in the Hong Kong Bill of Rights Ordinance, Cap. 383. This point was expressly left open in Leung T C William Roy v Secretary for Justice, a case involving section 118C of the Crimes Ordinance. Arguments may similarly arise about whether section 118D is an absolute liability offence in view of an appeal case in Court of Final Appeal (Hin Lin Yee v HKSAR).
Each case will depend upon its own facts. Generally, the following factors will be considered upon sentence:
- Custodial sentences are normally imposed.
- The age of the girl is the most relevant aspect for sentencing purposes. The larger the age difference between the defendant and the girl, the more severe the sentence.
- A defendant’s genuine mistaken belief as to the victim’s age is relevant to sentencing. A more severe sentence will be imposed where the defendant knew the victim’s age and, despite that, continued his action.