HKLII

Hong Kong Law Reform Commission
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Preface

1. In Hong Kong, the minimum age of criminal responsibility is statute based. Section 3 of the Juvenile Offenders Ordinance (Cap. 226) provides that: “It shall be conclusively presumed that no child under the age of 7 can be guilty of an offence.” This creates in Hong Kong a conclusive or irrebuttable presumption that a child is doli incapax (incapable of committing a crime). Under the law as it stands, any person under the age of seven will be fully and legally excused from criminal responsibility, even if there is cogent evidence which unequivocally points to the child’s commission of a crime.

2. In respect of a child of seven but under 14 years of age, Hong Kong follows the common law rule established in medieval England that a rebuttable presumption of doli incapax will apply. The presumption can be rebutted by the prosecution on proof beyond reasonable doubt that, at the time of the offence, the child was well aware that his or her act was seriously wrong, and not merely naughty or mischievous. When this presumption is rebutted or removed, full criminal responsibility will be imposed on the child who can then be charged, prosecuted and convicted for any offence allegedly committed.

3. In recent years, there have been calls in Hong Kong for the minimum age of criminal responsibility to be raised. Those favouring a change argue that it is undesirable to subject young children who are still socially and mentally immature to the full panoply of criminal proceedings, with their attendant sanctions and stigma. These demands have been echoed in the Committee on the Rights of the Child of the United Nations, which has called for a review of the law of Hong Kong with a view to raising the minimum age of criminal responsibility in the light of the principles and provisions of the United Nations Convention on the Rights of the Child.

4. In reply, those who favour maintaining the present minimum age of criminal responsibility argue that bringing young delinquents into the criminal justice system in their formative years provides an opportunity for systematic rehabilitation. Sanctions imposed on a child reduce the likelihood that he will develop a life-long pattern of criminal behaviour.

5. In the light of this divergence of views as to whether the present minimum age of criminal responsibility should be raised (and, if so, to what age), and as to whether the rebuttable presumption of doli incapax should continue to apply to children between seven and 14, the Commission considers it timely for the whole issue of the age of criminal responsibility to be reviewed, and to seek the public’s views on a number of options for reform.

6. Accordingly, on 15 June 1998, the Chief Justice and the Secretary for Justice made a reference to the Commission in the following terms:

“To review the law regarding the minimum age of criminal responsibility and the presumption of doli incapax and to consider such reforms as may be necessary.”


7. This consultation paper is the result of that reference. It endeavours to set out the existing law that governs the age of criminal responsibility in Hong Kong and the arguments for and against amendment to that law. The paper also outlines the relevant law and practice of a number of overseas jurisdictions; and presents a range of possible options for reform, with their respective advantages and disadvantages. It should, however, be stressed at the outset that in writing this paper, the Commission has reached no firm conclusion as to which of the options is to be preferred. The paper is issued to provoke public discussion on the issues raised and the options which would best serve the interests of both the children and the community. The Commission welcomes views on this paper and the options for reform it presents.