HKSAR v. Choi Wai Lun

FAMC No.28 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO.28 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO.620 OF 2016)

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BETWEEN

	HKSAR	Respondent
	and
	CHOI WAI LUN (蔡偉麟)	Applicant

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Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Mr Justice Fok PJ

Date of Hearing and Determination: 1 November 2017

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.We grant leave to appeal on the basis that the following questions of law involved in the decision in the present case and certified by the Court of First Instance are of the requisite importance, namely:

(a) Whether an offence contrary to s 122 (1) & (2) of the Crimes Ordinance, Cap 200, taken together is an offence of absolute liability when the alleged victim is a person under 16 years of age.

(b) Whether an accused charged under s 122 (1) with indecently assaulting a person who was under 16 years of age can legally put forward a defence that the person in fact consented and the accused genuinely believed that he/she was 16 years of age or over.

(c) Whether in a prosecution under s 122 (1) where the alleged victim is a person under 16 years of age the prosecution is required to prove absence of genuine belief on the part of the accused that the person was 16 years of age or over.

2.The appeal will be heard on 23 April 2018.

(R A V Ribeiro) Permanent Judge

(Robert Tang) Permanent Judge

(Joseph Fok) Permanent Judge

Mr Wong Po Wing, instructed by Eli K.K. Tsui & Co., assigned by the Director of Legal Aid, for the Applicant

Mr Ned Lai, SADPP and Ms Audrey Parwani, SPP (Ag.) of the Department of Justice, for the Respondent