1. Will I commit an offence if I believe the underage girl is over the prescribed age?
Yes. Under the current law, unlawful sexual intercourse contrary to sections 123 and 124 of the Crimes Ordinance are offences of strict liability. Once it is proved that the girl in question was under 13 years of age for a section 123 charge, or under 16 years of age for a section 124 charge, when the sexual intercourse took place, you are guilty of the offence whether or not you were aware of the girl’s age. Your belief that the girl was over 13 years of age, or over 16 years of age as the case may be, is no defence.
However, in relation to the offence of indecent assault contrary to section 122 of the Crimes Ordinance, while a person under the age of 16 cannot in law give any consent which would prevent an act being an assault, an honest and reasonable belief that the girl was aged 16 or over is a defence due to the Court of Final Appeal case of HKSAR v Choi Wai Lun.
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