2. Unlawful sexual intercourse with a girl under 16 years of age
Unlawful sexual intercourse with a girl under 16 years of age is an offence contrary to section 124 of the Crimes Ordinance (Cap. 200). The maximum punishment is 5 years' imprisonment.
For offences where “sexual intercourse” needs to be proved, it is not necessary to prove ejaculation. The offence is complete upon proof of penetration of the vagina by the penis.
The offence is complete upon proof of sexual intercourse and proof that at the time of the sexual intercourse the girl was under 16 years of age. The fact that the girl consented and/or that the defendant believed the girl was over 16 years of age are not defences to this charge though may be relevant as a mitigating factor in a sentence. The offence is a strict liability offence. The objective of the legislation is to protect girls under 16 years of age.
It is a defence to a charge under section 124 where the man believes the girl to be his wife and has reasonable cause for that belief even if the “marriage” is invalid because the “wife” is under 16 years of age. This is a narrow defence. It is dependent upon there having been a marriage that is invalid under section 27 of the Marriage Ordinance (Cap. 181) because the girl is under 16 years of age. It is not enough for the man to simply claim a belief in marriage, there must be reasonable cause. The burden of showing reasonable cause for the claimed belief is upon the defendant. This statutory defence only applies to offences under section 124 of the Crimes Ordinance. The statutory defence will rarely be established as section 124 is an offence of strict liability.
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