C. Indecency with children under 16
It is an offence contrary to section 146 of the Crimes Ordinance (Cap. 200) for a person to commit an act of gross indecency with or towards a child under the age of 16, or to incite a child under the age of 16 to commit such an act with or towards him/her. The offence is not gender specific and can be committed both by a man and by a woman.
The maximum penalty for this offence is 10 years’ imprisonment.
The act committed by the defendant must be grossly indecent. This means that the act or acts in question must be grossly indecent applying the standards of right thinking members of the community. “Gross indecency” is more than merely indecent. Whether the conduct is grossly indecent will depend upon the circumstances of the particular case.
In a case it was held that a teacher who had kissed his student on the face and lips did not commit an offence under section 146. His act, although indecent, was not grossly indecent according to the standards of contemporary society.
A section 146 offence is committed either by the defendant doing a grossly indecent act towards the child or by inciting the child to commit a grossly indecent act with or towards the defendant. “Incite” means to “encourage”. Persons who invite or encourage the child to commit a grossly indecent act upon them commit an offence just as if they had done a grossly indecent act towards the child. Even though the defendant might remain passive during the activity, a section 146 offence is committed if the grossly indecent activity by the child upon the defendant follows invitation or encouragement by the defendant. An example would be where the defendant exposes his or her private parts and invites the child to touch those private parts.
It is immaterial whether the child consented to the acts which were done to him or her or agreed to the acts he or she was invited to do upon the defendant. Once the acts and the age of the child are proved, the defendant will be convicted.
Section 146(3) provides a statutory defence if the person who commits an act of gross indecency with or towards a child or incites a child to commit such an act with or towards him or her believes on reasonable grounds that he or she is married to the child. This is a narrow defence and is similar to the defence provided by section 124 of the Crimes Ordinance for unlawful sexual intercourse with a girl under 16 years’ of age (but over 13 years of age). As a result of the Court of Final Appeal case of HKSAR v Choi Wai Lun, an honest and reasonable belief that the girl was aged 16 or over may now be an arguable defence.