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Hong Kong Law Reform Commission |
1.3 In its formative years, the common law provided no definite
point as the age at which a child would be held criminally responsible. Early
records show that different treatment was meted out to children below the age of
seven years, according to whether or not they were considered able to
distinguish right from wrong. Thus, up to the seventeenth century in England,
it was almost impossible to tell with certainty the age at which a person would
be held answerable for a crime committed. It was left to the individual judge
in each case to decide whether the child brought before the court was old enough
to be criminally sanctioned. This approach stemmed from a recognition of the
severity of the punishments imposed at that time, which were based on vengeance.
In an age where a person would be hanged for stealing a sheep, it was considered
necessary to protect young children from the full rigours of harsh adult
justice.
1.4 In an article entitled “Criminal Responsibility of
Infants”[3], the author states
that during Anglo-Saxon times, a child could not be found guilty of a crime
until he attained the age of 12. By the time of Edward I, the law had become
more severe and the age of criminal responsibility was reduced to seven. This
marked the beginning of an era where, until that age was attained, no evidence
that the child knew that his conduct was wrong would avail. This was based
upon the notion that a child within that age group should not be punished as he
or she had yet to acquire adequate discretion or understanding of the crime.
Photis points out, however, that although the Year Books 30, 31 Ed. 1 recorded
that a child of tender years was incapable of committing a crime, the Register
of Writs refers to a precedent of a pardon to a child under seven, and so
implies that children under that age were still on occasions prosecuted. The
controversy as to the age at which criminal responsibility should commence
continued until the age of seven was confirmed by Hale, who further confirmed
the common law rule that children between the ages of seven and 14 were presumed
to be doli incapax, though this presumption was capable of being rebutted
by evidence to the contrary.[4]
1.5 It is perhaps worth noting at this point that the antiquity of the
origin of the common law rule setting the minimum age of criminal responsibility
at seven years of age does not of itself imply that the rule is no longer valid
in modern times. Many common law rules of long standing are still applied today
and have survived the test of time. The issue is whether the circumstances and
conditions which prevailed in medieval England and in the light of which the age
of seven was set are still of relevance to present day Hong Kong. In addition,
there is a need to weigh the evidence of modern findings as to the age at which
a child can reasonably be expected to differentiate right from wrong. A more
systematic and scientific approach to establishing the age at which criminal
responsibility should commence would thus seem justified.
1.6 The common
law rule as to the minimum age of criminal responsibility has long been
abandoned in England and Wales. The minimum age in England and Wales was raised
from seven to eight years of age under section 50 of the Children and Young
Persons Act 1933. It has been further raised to ten years of age by section 16
of the Children and Young Persons Act 1963. The common law rule of a rebuttable
presumption that children between seven and 14 were doli incapax
continued to apply in England and Wales, subject only to an increase in the
statutory minimum age, until recently abolished by section 34 of the Crime and
Disorder Act 1998. Section 34 provides that:
“The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished.”
1.7 The minimum age of criminal responsibility in Hong Kong is
statute based, albeit the age fixed is identical to that laid down in the
medieval English common law rule. Section 3 of the JOO provides that:
“It shall be conclusively presumed that no child under the age of 7
years can be guilty of an offence.” Thus, under this provision, a
conclusive or irrebuttable presumption arises that the child is doli incapax
(incapable of committing a crime) on proof or admission of the basic fact
that he is under seven years of age. No evidence is admissible to rebut this
presumption. It follows that if a child was under seven years old at the time
of the offence, the child is doli incapax and cannot be found guilty of a
crime even though “there may be the clearest evidence that the child
caused an actus reus with mens rea”
[5].
1.8 As mentioned in
the earlier part of this chapter, the minimum age of criminal responsibility in
England and Wales has experienced two upward adjustments, with the present
minimum age now set at ten years. Hong Kong has made similar attempts but
failed to achieve the desired result. In 1973, an attempt was made to raise the
minimum age of criminal responsibility from seven to ten through the Juvenile
Offenders (Amendment) Bill 1973. The Bill foundered as it was thought that
children below the age of ten were old enough to be manipulated by undesirable
characters for unlawful purposes. There has been pressure for change since, but
Hong Kong’s minimum age of criminal responsibility remains seven years of
age.
1.9 In Hong Kong, for a child who has attained seven but is under 14
years of age, the presumption of doli incapax continues to apply but can
be rebutted by the prosecution on proof “beyond reasonable doubt not
only that he caused an actus reus with mens rea but also he knew that the
particular act was not merely naughty or mischievous, but ‘seriously
wrong’.”[6]
Under this common law rule, the rebuttable presumption of doli incapax
operates on proof or admission of the basic fact that the child was between the
ages of seven and 14. The child must be presumed to be doli incapax in
the absence of evidence that at the time of the offence he knew the particular
act constituting the offence was seriously wrong. Under this rebuttable
presumption, it follows that once it is proved beyond reasonable doubt that the
child knew the act to be seriously wrong, in the sense that he was not merely
naughty or mischievous, the presumption of doli incapax will be rebutted.
The child will thus become doli capax (capable of committing a crime) and
will be subject to prosecution and conviction accordingly. The principle
governing this area of the law was explained in R v Gorrie as
follows:
“In the case of persons under fourteen years of age, the law presumed that they were not criminally responsible; they were not supposed to have that discretion which would make them criminally responsible. But in any particular case, if the prosecution could show that although the accused was under fourteen the act was done with what was called mischievous discretion, then they could rebut the presumption that the child was not responsible. Therefore, the jury should first of all consider whether it would be their duty to find him guilty if he were over fourteen, and then consider whether mischievous discretion deprived him of the shelter which he would otherwise have. If it was an assault and not an accident- if, however little he might have meant to do him any harm, he did in fact intentionally stab the other boy with the penknife and thereby caused his death, that was manslaughter ... Then they came to the second point. The boy was under fourteen, and the law presumed that he was not responsible criminally; and if the prosecution sought to show that he was responsible although under fourteen, they must give them very clear and complete evidence of what was called mischievous discretion: that meant that they must satisfy the jury that when the boy did this he knew that he was doing what was wrong - not merely what was wrong, but what was gravely wrong, seriously wrong. It was for the jury to say whether there was any evidence that this boy when, as was alleged, he ‘jabbed’ the other with the knife in this horseplay, had any consciousness that he was doing that which was gravely wrong.”[7]
1.10 Under
the principle as stated in Gorrie, in order to secure the conviction of a
child aged between the ages of seven and 14 years, the prosecution must
first prove beyond reasonable doubt that the child committed the offence
with the necessary mens rea. It must also show that the child
should be criminally responsible for the alleged offence by proof beyond
reasonable doubt that the child had in him or her a mischievous
discretion, in the sense that, at the time of the alleged offence, the child
knew that the act constituting the offence was gravely or seriously
wrong. It is therefore insufficient for the prosecution to prove that the
offence was committed by the child. The prosecution has to go a step further to
prove that the child knew his conduct was seriously wrong at the material time.
Under this principle, the “mere proof of the doing of the act charged,
however horrifying or obviously wrong the act might have been, cannot establish
the requisite guilty knowledge and rebut the
presumption.”[8]
1.11 The
requirement for knowledge that the child’s conduct was “seriously
wrong” was further examined in J. M. (A Minor) v Runeckles where it
was held that knowledge that his conduct was seriously wrong went beyond being
merely naughty or mischievous. Goff L.J. in this case observed that:
“the prosecution has to prove that the child knew that what he or she was doing was seriously wrong. The point is that it is not enough that the child realized that what he or she was doing was naughty or mischievous. It must go beyond childish things of that kind. That, as I understand it, is the real point underlying the presumption that a child under the age of 14 has not yet reached the age of discretion, because children under that age may think what they are doing is nothing more than mischievous. It would not be right for a child under that age to be convicted of a crime, even if they had committed the relevant actus reas and had the relevant mens rea specified in the statute, unless they appreciated that what they were doing was seriously wrong and so went beyond childish activity of that kind.”[9]
1.12 In
the same case, it was further observed that knowledge that his conduct was
seriously wrong was not necessarily an appreciation on the part of the child
that the act was morally wrong, as that was considered to be only one type of
act which a child could appreciate to be seriously wrong. Mann J held
that:
“I regard an act which a child knew to be morally wrong as being but one type of those acts which a child can appreciate to be seriously wrong. I think it is unnecessary to show that the child appreciated that his or her action was morally wrong. It is sufficient that the child appreciated the action was seriously wrong. A court has to look for something beyond mere naughtiness or childish mischief.”[10]
1.13 Despite
the fact that the test laid down for rebutting the presumption of doli
incapax has been well established, there is as yet no absolute formula for
satisfying all the requirements set out in the test. The reason is that in
rebutting the presumption, the court would consider the particular background of
the particular child, as well as the unique features of the case, before
arriving at its decision as to the knowledge of the child at the time in
question. The actual age of the child, though an important factor to be taken
into consideration, is not conclusive. However, in most cases, matters such as
the circumstances of the case, things said or done by the child both before and
after the act, the age of the child, and the individual particulars of the child
are considerations relevant to the court’s consideration.
1.14 In
B v R[11], Lord Chief
Justice Parker observed that evidence which was clear and showed beyond all
possibility of doubt that the child knew the act to be a serious wrong was
relevant to rebut the presumption. The evidence must be “strong and
pregnant.” Indeed, the lower the age of the child, the stronger would be
the evidence required for the successful rebuttal of the presumption. Lord
Chief Justice Parker in the same case further observed that the family
background of a child would also be a valuable consideration. The fact that a
child was raised in a respectable family, properly brought up and was generally
well behaved were all important factors to be considered. Lord Chief Justice
Parker said:
“There is no doubt in the case of a child between the age of eight [12] and fourteen that there is a presumption that the child is not in possession of that knowledge of which mens rea is an essential ingredient, and it is to be observed that, the lower the child is in the scale between eight and fourteen, the stronger the evidence necessary to rebut that presumption, because in the case of a child under eight it is conclusively presumed he is incapable of committing crime. It has often been put in this way, that in order to rebut the presumption ‘guilty knowledge must be proved and the evidence to that effect must be clear and beyond all possibility of doubt,’ or, as it has also been put, ‘there must be strong and pregnant evidence that he understood what he did....’ Here is a child who has had apparently every opportunity in life, coming from a respectable family and properly brought up, who, one would think, would know in the ordinary sense the difference between good and evil and what he should do and what he should not do. Here, he is taking part, first, in the testing of the house at the back and front, climbing through the window, and on leaving taking the key and returning later with a gang, completely wrecking the house and taking certain articles. For my part, I cannot say there was no evidence on which the magistrates could come to the conclusion that this boy had guilty knowledge.”
1.15 Evidence of the circumstances of the case and the
child’s conduct, statement or demeanour associated with the offence is
admissible to prove knowledge of a serious wrong. In R v Li Wai-lun, it
was held that the answers provided by the child appellant to questions put to
him by the police would be a valid consideration upon which knowledge of a
serious wrong could be inferred as the child was considered by the court to be
“careful enough to avoid giving any incriminating
answers.”[13] In A v
DPP[14], it was held that the
circumstances in which the victim of an indecent assault charge was taken to a
remote location and threatened were sufficient evidence to rebut the presumption
that the 12 year old appellant was doli incapax. However, if the conduct
of a child is such that it is uncertain or equivocal to conclude that he had in
him or her the knowledge of a serious wrong, this would be insufficient to rebut
the presumption. Thus, in A v
DPP[15], it was held that the
fact that the 11 year old appellant was seen running away from the scene of
crime was not:
“... by itself sufficient to enable the justices to find that the presumption in law had been rebutted. A naughty child would run away even if what it has done is not criminal but merely a breach of school or parental rule. In the absence of other evidence, such as evidence about the appellant’s upbringing or his reaction when seen by the police, the justices could not justifiably base their decision on that fact alone.”
1.16 It
is important to note that although knowledge of a serious wrong, coupled with
any necessary implication from the age of the child, can be inferred from the
circumstances of the case, a child cannot be presumed to know the nature of the
act simply because other children of his age and background would normally be
held to possess such knowledge. In rebutting the presumption, the prosecution
must prove beyond reasonable doubt that the child “himself” or
“herself” knew what he or she had done was seriously wrong, and was
not being merely childish, naughty or mischievous. This important issue was
raised in CC (A Minor) v DPP, where Mitchell J observed as
follows:
“In determining that question, the tribunal of fact must avoid the trap of applying another presumption, one which has been termed the ‘presumption of normality’. That presumption is to the effect that any normal boy of his age in society, as it is today, must have known that what he was doing was seriously wrong. Such an approach as that reverses the relevant presumption of doli incapax.”[16]
1.17 There
are other factors which have been considered by the courts, but the observations
made by Simon Brown L.J in Sheldon provide a useful summary:
“1. It is presumed that a child between the ages of 10 and 14 is doli incapax[17] and in all cases it is for the crown to rebut the presumption: to prove that when doing the act charged the child knew that this act was seriously wrong as distinct from an act of mere naughtiness or childish mischief.
2. The criminal standard of proof applies: clear positive evidence is required, not consisting merely in the evidence of the act amounting to the offence itself, however horrifying or obviously wrong that act may be.
3. The older the defendant is and (logically, notwithstanding paragraph 2 above) the more obviously wrong the act, the easier it will generally be to prove guilty knowledge.
4. The surrounding circumstances are clearly relevant and what the defendant said and did both before and after the act may go to prove guilty knowledge. Certain conduct, however, such as running away or lying, may, depending on the circumstances, be equivocal, as consistent with naughtiness as with wickedness.
5. Proof that the defendant was a normal child for his age (which must not be presumed but, assuming guilty knowledge can otherwise be established, need not be proved) will not necessarily prove also that he knew his action was seriously wrong. The less obviously wrong the act, the less likely is it to do so.
6. Even where, as in Coulburn (1988) 87 Cr. App. R. 309 (a murder case), the doli incapax presumption is overlooked, if on appeal the Court is satisfied that had the issue been left to the jury they must inevitably have found that the defendant knew that his act was seriously wrong, the verdict will be found safe and the appeal will fail.”[18]
1.18 In recent years there have been increasing calls to review both
the irrebuttable and rebuttable presumptions of doli incapax on the
general ground that the relevant ages set for the two presumptions are
unrealistically low; and are thus contrary to the interests of children and the
community at large. In England and Wales, we have seen that the common law
minimum age of criminal responsibility has been abandoned in favour of a more
mature age of ten years of age.
1.19 One of the reasons given in
support of change is the unfavourable comparison between the minimum age in Hong
Kong and that currently adopted in other countries, where the minimum age is
generally set within the range of ten to 12 years of age
1.20 A further
argument advanced for the raising of Hong Kong’s minimum age of
responsibility is the suggestion that a seven year old child is too young to
take full criminal responsibility and to be made subject to complex and perhaps
lengthy criminal proceedings which flow from a prosecution. These advocates
have queried the appropriateness of exposing a child of, say, nine years of age
to the full rigours of the criminal justice system.
1.21 In answer to
these arguments, those who favour maintaining the existing age of criminal
responsibility argue that, because of the greater opportunity for education
through the system of compulsory education in Hong Kong, children now acquire
mental and social maturity at a relatively early age. Today’s children in
Hong Kong, it is argued, can readily distinguish right from wrong at an early
age. It is further argued that raising the minimum age from seven years would
not only enable children to be abused by adult criminals in the advancement of
their criminal designs, but would also be harmful in that it would deprive these
children of a chance for early rehabilitation through the criminal justice
system.
1.22 The call to raise the minimum age of criminal responsibility is
not a recent phenomenon. Indeed, a Juvenile Offenders (Amendment) Bill was
debated in the Hong Kong Legislative Council in 1973 in an unsuccessful attempt
to raise the minimum age to ten years of age. As we have seen, this attempt
failed as it was thought that children above the age of seven were old enough to
be used by adult criminals for unlawful purposes. Subsequent to this
unsuccessful attempt at reform, there have been periodic calls for change.
1.23 In a letter dated 31 July 1992 to the then Attorney General, Mr
Jeremy Matthews, the Hong Kong Bar Association invited Mr Matthews to consider,
in conjunction with this Commission, the whole question of the appropriate
minimum age of criminal responsibility in Hong Kong. In his letter of reply to
the Association dated 12 October 1992, Mr Matthews pointed out that the issue
of the minimum age of criminal responsibility had been considered by the
Standing Committee of Young Offenders in February 1988 where it was agreed that
the age of criminal responsibility should remain at seven years. In his letter,
Mr Matthews argued that the time was not ripe for a review of the subject,
having regard to local concerns about the rising crime rate; the fact that young
juveniles were more susceptible to the influence of triads and to vices such as
drug abuse and violence; the fact that the majority of young offenders aged
under ten continued to be cautioned under the Police Superintendent’s
Discretion Scheme; and the views of the then Secretary for Security and the
Police.
1.24 Over the years, a number of representations for change have
been made to the Administration, supported by the research findings of
sociologists and psychologists which suggest that children only begin to have
full control of themselves at about the age of 12, and that a mature moral
concept of right from wrong would only develop at the ages of 12 to 13. It is
therefore argued that it is harsh and unreasonable to impose criminal
responsibility on children below these ages, when they are neither able to
exercise full self-control nor have developed a mature personality.
1.25 Demands to raise the age of criminal responsibility are not
confined to local commentators. The United Nations Committee on the Rights of
the Child (the UN Committee) has also expressed concern at the minimum age of
criminal responsibility in Hong Kong. Pursuant to Article 44 of the United
Nations Convention on the Rights of the Child which was extended to Hong Kong in
1994, the Hong Kong Government responded to the concerns of the UN Committee
through its submission of an “Initial Report of the United Kingdom of
Great Britain and Northern Ireland in respect of Hong Kong under article 44 of
the Convention on the Rights of the Child” to the Committee on 2 and 3
October 1996. At that hearing, issues arising from the prosecution in Hong Kong
from 1992 to 1995 of children between seven and ten years of age were
considered. Following the hearing, the Committee issued its
“Concluding Observations”, in which it recommended at
paragraph 34 that:
“... a review of legislation in relation to the issue of the age of criminal responsibility be undertaken with a view to raising this age in the light of the principles and provision of the Convention.”
1.26 As
mentioned earlier, however, views are not one-sided in favour of raising the
minimum age of criminal responsibility. Those in favour of maintaining seven as
the minimum age have argued that bringing young children within the criminal
justice system enables them to be given greater professional care and attention
and should be taken as a positive move. Raising the minimum age of criminal
responsibility would do a disservice to those currently subject to full criminal
process, as these children would be deprived of the protective and
rehabilitative opportunities incidental to criminal
proceedings.
1.27 This divergence of opinion has led to questions as to
whether the presumptions of doli incapax should be maintained, and if so,
whether the present ages for their application should be preserved. To some
extent, any age which is chosen to apply full criminal responsibility must be
arbitrary. It is, however, in the interests of both children and the community
at large that the law should be based so far as is possible on rational grounds
which reflect current societal values. In order to enable the public to reach a
properly considered view as to whether or not the law should be changed (and, if
so, in what way), we set out in chapters 3 and 4 the arguments for and against
reform.
[1] Under section 2 of the JOO,
a “young person” is defined as “a person who is, in the
opinion of the court having cognizance of any case in relation to such person,
14 years of age or upwards and under the age of 16
years”.
[2] Restrictions
on punishment of young persons are provided in section 11(2) of the JOO which
provides that: “No young person shall be sentenced to imprisonment if
he can be suitably dealt with in any other
way.”
[3] A D Photis,
“Criminal Responsibility of Infants” (April 25, 1987) Justice of the
Peace, at 263.
[4] Cited above,
“Criminal Responsibility of Infants”, at
263.
[5] J Smith and the late B
Hogan, Criminal Law (Butterworths, 1996), at
195.
[6] Cited above, Criminal
Law, at 195.
[7] [1918] 83 JP,
at 136.
[8] Archbold, The
Indictment (Sweet & Maxwell, 1998 ed), at paragraph
1-91.
[9] [1984] 79 Cr App R 255,
at 260.
[10] Cited above, J M
(A Minor) v Runeckles, at
259.
[11] [1958] 44 Cr App R 1,
at 3-4.
[12] The minimum age of
criminal responsibility was 8 years of age at the time when this case was heard.
It thus followed that the age-lines for the rebuttable presumption of doli
incapax were 8 to 14 years of
age.
[13] [1989] Mag App 436/89,
at 5.
[14] [1997] 1 Cr App R
27.
[15] [1991] C.O.D. 442,
D.C.
[16] [1996] 1 Cr App R 375,
at 381.
[17] This is contrasted
with the position in Hong Kong where the ages to which the rebuttable
presumption of doli incapax apply are between 7 and 14
years.
[18] [1996] 2 Cr App. R
50, at 53.