Overview of the Law Reform Commission’s Consultation Paper on Sexual Offences involving Children and Persons with Mental Impairment

In November 2016, the Law Reform Commission’s Sexual Offences Sub-committee published a consultation paper on Sexual Offences Involving Children and Persons with Mental Impairment, setting out its provisional recommendations for reform. This is the second in a series of four consultation papers intended to cover the overall review of the sexual offences, and covers sexual offences which are largely concerned with the protective principle, that is to say, that the criminal law should give protection to certain categories of vulnerable persons against sexual abuse or exploitation. These vulnerable persons include children, persons with mental impairment, and young persons over whom others hold a position of trust. The consultation period closes on 10 February 2017.

Overview of Principal Recommendations

The Age of Consent

The age of consent is the threshold age below which sexual activity is unlawful. Most of the existing offences in Hong Kong have an age of consent of 16. However, while the age of consent for homosexual buggery has been lowered to 16 by the Statute Law (Miscellaneous Provisions) Ordinance 2014, it is still an offence for a man to commit buggery with a girl under the age of 21 pursuant to s. 118D of the Crimes Ordinance (Cap. 200). 

In light of the William Roy Leung decision (Leung TC William Roy v SJ [2005] 3 HKLRD 657 (Court of First Instance) (see CACV 317/2005, Court of Appeal upholding decision)), which held that s. 118C of the Crimes Ordinance was unconstitutional and invalid to the extent that it applied to a man aged 16 or over and under 21; and having considered the rising trend of setting a uniform age of consent in other jurisdictions, the Sub-committee sees no justification for raising or lowering from the present age of consent, nor any justification for allowing a legislative disparity between homosexual and heterosexual sexual activity. 

One may argue that lowering the age of consent may have the undesirable consequence of encouraging premature child sexual activity at an early age. Then again, any suggestion to raise the age of consent may also be criticised for failing to recognise that children are physically and psychologically mature at a much earlier age nowadays. Recommendation 1 therefore proposes a uniform age of consent in Hong Kong of 16 years of age, which should be applicable irrespective of gender or sexual orientation.

Gender difference?

In respect of gender neutrality, the general trend of the legislation of overseas jurisdictions (including Australia, Canada, England & Wales, and Scotland) is to apply equality of treatment between boys and girls regardingprotection against sexual exploitation, and gender neutrality in offences involving children and young persons. Recommendation 2 thus proposes that the offences involving children and young persons should be gender-neutral. However, there should be two separate types of offences to protect young persons: one involving children under 13 and the other, children under 16 (Recommendations 3). Furthermore, offences should be capable of being committed by either an adult or a child offender (Recommendation 5).

Absolute Liability

At the moment, sexual intercourse with a person under 16 is of absolute liability in Hong Kong. It is no defence that the accused did not know and had no reason to suspect that the child was under 16.

Contrary to the current position in Hong Kong, in some overseas jurisdictions, sexual offences involving children between 13 and 16 do not carry absolute liability. The main rationale is that it is in the interests of justice and fairness that a person who makes a genuine mistake on reasonable grounds that the child is not under-age should not be penalised. The Sub-committee is well aware of the arguments for and against having absolute liability in offences involving children between 13 and 16, and appreciates that there are bound to be divergent views on the issue. Hence, Recommendation 6 proposes that the issue as to whether absolute liability should apply to offences involving children between 13 and 16 years of age should be considered by the Hong Kong community before a recommendation is made. 

Consensual Sexual Activity between Persons who are Between 13 and 16 

Generally speaking, it is considered absolutely wrong for anyone to engage in sexual activity with very young persons under the age of 13. People may, however, have different views as to whether the criminal law should intervene in respect of consensual sexual activity between persons who are between 13 and 16 years of age.

The Sub-committee considers that under the protective principle, children should not be encouraged to engage in sexual activity before they are emotionally and physically ready to cope with the consequences. Therefore, it recommends that consensual sexual activity between persons who are between 13 and 16 be criminalised but allow prosecutorial discretion to bring a charge in appropriate cases (Recommendation 8). For instance, if sexual exploitation is not involved, such a case may be dealt with by cautions under the Police Superintendents’ Discretion Scheme which appears to have been operating well in Hong Kong.

Creation of New Offences

In Chapter 7, the Sub-committee recommends the creation of a range of new offences involving children which are gender-neutral and provide wider protection to children (Recommendations 9 to 15). These offences include: penetration of a child under 13, and a similar offence for a child under 16; sexual assault of a child under 13/16; causing or inciting a child under 13/16 to engage in sexual activity; engaging in sexual activity in the presence of a child under 13/16; causing a child under 13/16 to look at a sexual image; and arranging or facilitating the commission of a child sex offence.

Sexual Grooming

Sexual grooming refers to the phenomenon of a paedophile who “grooms” a child with a view to engaging in conduct which constitutes a sexual offence against the child. The paedophile may do so by communicating to him/her on a number of occasions in order to gain the child’s trust and confidence. The act is often performed by electronic means such as through the use of a mobile phone or the internet. The paedophile would eventually arrange to meet the child with the intention to sexually abuse him/her.

To combat such undesirable situations, the Sub-committee recommends the creation of the offence of sexual grooming which would serve to protect children before the sexual abuse took place (Recommendation 22). This should also allow the Police to take early action to investigate suggested cases of abuse or potential abuse of children and young persons which may serve as a deterrent to would-be sex predators.

Reform of Legislation in Respect of Persons with Mental Impairment (“PMIs”)

Around the time when this consultation paper was published in November 2016, the local community had a heated debate over the adequacy of protection provided to mentally incapacitated persons. In this paper, Chapter 10 provides a comprehensive discussion on what approaches might be adopted for reform of legislation in respect of PMIs.

A review of current legislation in Hong Kong and overseas revealed that the types of offences provided for in respect of sexual activity with PMIs fell into two broad categories. The first category of offences covers a situation when a PMI fits the definition of a mentally incapacitated person and certain defined types of sexual activity with the PMI would be outlawed (eg, buggery by a man with a mentally incapacitated person). The second category of offences applies to a PMI whose level of mental impairment is not severe to the extent that he/she lacks the capacity to consent to sexual activity. While the PMI is capable of giving consent, his/her “consent” is improperly obtained by perpetrators using exploitative means.

The Sub-committee favours the approach taken in the second category of offences, as they can maintain an appropriate balance between respecting the sexual autonomy of those persons whose extent of mental impairment is not so severe as to prevent their capacity to consent, and the need to protect them from sexual exploitation by perpetrators using exploitative means or maintaining an imbalanced relationship with them. The Sub-committee considers that the first category of offences can be subsumed under the general lack of consent model previously recommended by the Sub-committee.

In Chapter 11, the Sub-committee proposes a range of new offences which would be gender-neutral and provide improved protection to PMIs (Recommendations 23 to 30). Some general provisions applicable to the new offences are also proposed, including: defining situations where a relationship of care exists; exceptions to liability; requirement as to knowledge of mental illness; and the evidential burden as regards the accused’s knowledge of the illness (Recommendations 31 to 34).

Reform of Sexual Offences involving Abuse of a Position of Trust

This area of reform relates to the protection of young persons aged 16 or above, but under 18 (ie, 16 and 17 year-olds), from those who are in a position of trust with regard to them. These young persons are above the age of consent but are not yet adults. There are arguments for and against enacting legislation for this group of young persons. For instance, some may argue that the 16 and 17 year-olds are mature enough to choose and that a genuine relationship should be recognised. On the other hand, there is an argument that this group of young persons should still be safeguarded under the protective principle. Given the divergent views on the issue, the Sub-committee considers that this should be the subject of public consultation before a recommendation is made (Recommendation 40).

Consultation

The consultation period will last for three months until 10 February 2017 and the Sub-committee welcomes views, comments and suggestions on any issues discussed in the consultation paper. Copies of the consultation paper can be obtained either from the Secretary, Law Reform Commission, 4/F, East Wing, Justice Place, 18 Lower Albert Road, Central, Hong Kong, or on the internet at www.hkreform.gov.hk.

Jurisdictions: 

Review of Sexual Offences Sub-Committee, Chairman

Mr. Peter Duncan, SC practiced in New Zealand before moving to Hong Kong in 1973 to join the Attorney General’s Chambers as Crown Counsel. He then joined ICAC as one of its in-house counsel shortly after its inception in 1974. In 1983, he joined the Hongkong Land Company Limited as Group Legal Manager, and was appointed Regional Counsel with Dow Chemical Pacific Limited in 1990.  

Mr. Duncan left the business sector to join the Bar in 1998 and was appointed Senior Counsel in 2004. He has since developed a substantial practice in criminal law with an emphasis on “white collar” crime. He has also appeared in a number of High Court civil/commercial litigation cases and acted as an arbitrator. Mr. Peter Duncan has also sat as a Deputy High Court Judge of the Court of First Instance.