1. Elements of the offence
Rape is committed by a man having non-consensual sexual intercourse with a woman. Section 118(3) of the Crimes Ordinance (Cap. 200) provides that a man commits rape if:
"(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and
(b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it."
The maximum penalty is life imprisonment.
In Hong Kong, rape can only be committed by a man upon a woman. A man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it and at the time he knows she does not consent or is reckless whether she consents or not. A woman who helps or encourages a man to rape a woman may be charged with aiding and abetting rape.
Under the common law, it was conclusively presumed that a boy under 14 years of age is incapable of sexual intercourse. However, pursuant to section 118O of the Crimes Ordinance (Cap.200), the presumption of law that a boy under the age of 14 is incapable of sexual intercourse, buggery or bestiality is now abolished. Therefore, a boy under 14 years of age but above 10 years’ of age (the age at which criminal liability commences) will be criminally liable for offences involving sexual intercourse.
For defendants between 10 years’ of age and 14 years’ of age, there is another legal doctrine called doli incapax , which requires the prosecution to prove beyond reasonable doubt that the defendant knew that what he was doing was seriously wrong as opposed to being merely naughty or mischievous.