Even though Yen consented to Wai touching her private parts, Wai has committed indecent assault contrary to Section 122 of the Crimes Ordinance (Chapter 200). Section 122(1) of the Crimes Ordinance (Chapter 200) states that a person under the age of 16 cannot in law consent to any act which amounts to an indecent assault. Yen is under 16 years of age. What Wai did to Yen is an assault involving circumstances of indecency: the touching was of a sexual nature. The offence is complete.
If Yen had touched Wai’s private parts with Wai’s consent, Yen would not have committed indecent assault. Wai is 16 years of age and therefore can consent to the indecent touching. However under Section 146 of the Crimes Ordinance (Chapter 200) it is an offence to commit an act of gross indecency with a person under 16 or to incite a child under 16 to commit an act of gross indecency. As Yen is only 14, she cannot in law consent to an act of gross indecency. Wai’s action in inviting and allowing 14 year old Yen to touch his private part in a public park may be regarded as grossly indecent conduct according to the standards of right minded members of the community.
Most indecent assaults will be clearly of a sexual nature, some may have only sexual undertones. A conviction for indecent assault requires the prosecution to prove beyond reasonable doubt that the defendant not only committed an assault but that the assault involved indecency.
An assault is the intentional or reckless use of force against another person. The force must be unlawful, that is without consent or without any lawful justification. Whether there is consent or lawful justification depends upon the facts of each case. A person over 16 years’ of age can consent to acts of indecency. Where consent or lawful justification is argued as a defence, the prosecution has the burden of proving that there was no consent or lawful justification. The defendant is not required to prove there was consent or lawful justification. In common sense, however, the defendant will normally need to point to some evidence before the court to raise the issue of consent or lawful justification.
Once an assault is proved the court will consider whether it was indecent. This involves an examination of the conduct. This would include the relationship between the parties, what was done, where it was done and how it was done. The court will apply the standards of decency of right minded members of the community.
An example of an indecent assault is touching another person’s private parts without his or her consent.
It is not unlawful for a registered medical practitioner to terminate a pregnancy, provided that is done in accordance with Section 47A of the Offences Against the Person Ordinance (Chapter 212).
The person who operated upon Yen has committed an offence under Section 47A of the Offences Against the Person Ordinance (Chapter 212). That person is not a registered medical practitioner and the clinic where the operation took place is an illegal clinic. As a fact Yen was pregnant and the operation was carried out with the intention of ending that pregnancy. That the operation did not end her pregnancy is irrelevant. All the requirements of Section 47A of the Offences Against the Person Ordinance (Chapter 212) are satisfied.
Besides, under Section 46(b) of the Offences Against the Person Ordinance (Chapter 212) the unlawful use of any instrument or other means with intent to bring about a miscarriage in a pregnant woman is an offence.
The maximum penalty is life imprisonment and such fine as the court may impose.
A man who has unlawful sexual intercourse with a girl under the age of 16 commits an offence contrary to Section 124 of the Crimes Ordinance (Chapter 200).
The maximum penalty for the offence is 5 years’ imprisonment.
As Yen is under 16 years of age, her factual consent to sexual intercourse is therefore no defence. All the requirements of Section 124 of the Crimes Ordinance (Chapter 200) are satisfied in Wai’s case.
On the scenario Yen has not committed any offence by undergoing the operation. However if she had unlawfully administered any poison or noxious thing to herself or unlawfully used any instrument upon herself with intent to cause her own miscarriage, she commits an offence contrary to Section 46(a) of the Offences Against the Person Ordinance (Chapter 212).
The maximum penalty for the offence is 7 years’ imprisonment and such fine as the court may award.