Abduction of an Unmarried Girl Under the Age of 16

Abduction of an Unmarried Girl Under the Age of 16

Under section 126 of the Crimes Ordinance: 

(1) A person who, without lawful authority or excuse, takes an unmarried girl under the age of 16 out of the possession of her parent or guardian against the will of the parent or guardian shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years. 

(2) In subsection (1), guardian ( 監護人 ) means any person having the lawful care or charge of the girl. 

Explanation 

It was formerly generally thought that any offence involving harm to a girl under the age of 16 was an "offence of absolute liability"—that is, the prosecution need not prove that the defendant had any criminal intent—on the basis that victims of this kind belong to a particularly vulnerable group in need of protection. 

However, the Court of Final Appeal has held that, at least in the context of an indecent assault on a girl under 16 under section 122 of the Crimes Ordinance, although the legislation has displaced the presumption that "the prosecution must prove mens rea", so that the prosecution need not prove that the defendant knew the victim's age, the defendant may still raise a valid defence—namely, that he can prove, on the balance of probabilities, that he honestly and on reasonable grounds believed that the girl was aged 16 or above.