Hong Kong Law Reform Commission

Chapter 2 - The minimum age of criminal responsibility in other jurisdictions

• Introduction
• Guidance from the United Nations
• Europe
• North America
• United States of America
• Canada
• Australasia
• Australia
• New Zealand
• Asia
• Mainland China
• Taiwan
• Singapore
• India
• Japan
• Africa
• South Africa
• Oceania and the Pacific islands
• Fiji
• Other overseas jurisdictions
• International trends

Introduction

2.1 In endeavouring to determine whether or not change is necessary to Hong Kong’s existing minimum age of responsibility, it is clearly relevant to examine the approach adopted in other jurisdictions. This chapter looks at the comparative position not only in common law jurisdictions with which Hong Kong traditionally has links, but also in non-common law jurisdictions such as Mainland China, Taiwan and Japan with which Hong Kong has cultural similarities or a geographical nexus. The purpose of this chapter, therefore, is to outline the laws on the minimum age of criminal responsibility in these jurisdictions, not necessarily as conclusive indicators which Hong Kong must follow, but rather as an objective yardstick to which Hong Kong may wish to refer, having taken account of Hong Kong’s particular circumstances, in determining the best way forward.

2.2 It must be stressed at the outset that this chapter is concerned only with the narrow compass of the minimum age of criminal responsibility in other jurisdictions and does not attempt to examine substantive matters such as the juvenile justice systems of the jurisdictions covered, save for the purpose of illustrating how children below the minimum age or young offenders involved in serious crimes are dealt with by the relevant jurisdictions. To do so would inevitably complicate the study and take it beyond the major purpose which this chapter intends to serve.

Guidance from the United Nations

2.3 A significant factor in determining appropriate standards is the view adopted by the United Nations (the UN) on the issue of the age of criminal responsibility. This is embodied in the United Nations Convention on the Rights of the Child (the Convention) which was extended to Hong Kong in 1994. The Convention is silent as to what should be the appropriate minimum age, save for the provision in Article 1 of the Convention that a child is a person below the age of 18 unless the age of majority is attained earlier under the domestic law as applicable to the child. Under Article 40 of the Convention, states parties are required to give recognition to the rights of every child who has allegedly acted contrary to the penal law of the land, and to take account of his age:

“States parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in the a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”

Article 40(3) refers to the age of criminal responsibility:

“States parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:

(a) the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;

(b) whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.”

Under Article 40(4) of the Convention, it is further provided that:

“A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.”

2.4 While the Convention does not purport to fix a minimum age of criminal responsibility of universal application, the Committee on the Rights of the Child of the United Nations has felt able to criticise jurisdictions which it believes adopt too low an age. Subsequent to a hearing on the position of Hong Kong on matters involving the interests of children, the UN Committee called for a review of the relevant Hong Kong legislation with a view to raising the age of criminal responsibility in the light of the principles and provisions of the Convention.

Europe

2.5 In a written answer to the House of Lords in the United Kingdom on 27 February 1995, Baroness Chalker of Wallasey provided details of the age of criminal responsibility adopted in each of the member states of the Council of Europe[19]:

Council of Europe

2.6 It is significant to note that of the 36 jurisdictions shown on the list only four (Cyprus, Ireland, Liechtenstein and Switzerland) still maintain seven years as the minimum age of criminal responsibility. This triggered the following comments from Mr Humfrey Malins during the debate in the House of Commons on the Crime and Disorder Bill 1998:

“What about the age of criminal responsibility? I did some research and discovered that, as at three years ago, the age of criminal responsibility varied enormously in the 38 countries in the Council of Europe. Most of them have an age of criminal responsibility much higher than ours; in only five countries is it as young as ours or younger. The average age was 12 years seven months; in this country it is 10. That ought perhaps to be looked at on another day.”[20]

2.7 The simple age at which a child bears full criminal responsibility does not necessarily tell the full story, however. It is equally relevant to consider whether or not there exists in a given jurisdiction a provision similar to Hong Kong’s rebuttable presumption of doli incapax. France, Germany and Spain, for example, appear to adopt such a provision:

“... in France a child under 13 cannot be prosecuted, while for children aged 13-18 a presumption of incapacity applies which is rebuttable by the prosecution on evidence in each individual case. Similarly, in Germany a child aged under 14 cannot be prosecuted, while for children aged between 14 and 18, responsibility is linked with the maturity of the child on trial. The Spanish penal code states that children under 16 are exempt from criminal liability, while young people aged 16-18 must have their criminal responsibility alleviated by reason of their age.”[21]

2.8 A legitimate concern aroused by proposals to raise the minimum age of criminal responsibility would be that it would allow deviant behaviour of those below the minimum age of criminal responsibility to go unchecked. A number of European jurisdictions have adopted measures designed to ensure care and control of these children:

“In most other European countries, children under 14 who commit offences do not appear before the criminal courts, but are dealt with by family courts concerned with the need for compulsory measures of care.”[22]

For example, in France, although a child below the age of 13 cannot be held criminally responsible, a child aged ten or above can be brought to a civil court in relation to certain offences for a detention order to be made.

North America

United States of America

2.9 In the United States of America, the age of criminal responsibility varies between states. A written reply submitted to the Parliament of the United Kingdom on 27 February 1995 provided a summary of the position in the United States:

“In most of the United States of America the age of criminal responsibility is 18. In eight states the age is 16; these are Georgia, Illinois, Louisiana, Massachusetts, Michigan, Missouri, South Carolina and Texas. In Connecticut, New York and South Carolina the age of criminal responsibility is 15.

All US states have provision for juveniles to be tried as adults in a criminal court. Certain serious offences, such as murder, are statutorily excluded from the jurisdiction of the juvenile courts. In all states except Nebraska and New York, a juvenile court may waive jurisdiction over a case and transfer it to a criminal court.”[23]

The lowest age adopted in any of the US states is reportedly ten years.[24]

Canada

2.10 In Canada, the age of criminal responsibility has recently been raised from the established common law rule of seven to 12 years of age. The rebuttable presumption of doli incapax has ceased to operate in Canada. Section 13 of the Canadian Criminal Code provides that:

“No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years.”

While no child under 12 years of age may be held criminally responsible, a child below this age whilst involved in criminal activity may be subject to provincial child welfare legislation. Children aged between 12 and 14 years of age are not dealt with by ordinary criminal courts, but are instead brought before a youth court, where special procedures are adopted at the hearing which make allowance for their relative young age. Those between 14 and 18 years of age are, under normal circumstances, tried in youth courts. Where serious indictable offences are involved, however, they would be transferred to ordinary criminal courts for trial should the arrangements be considered appropriate under all the circumstances of the case, including the interests of both the community and the young defendants.

Australasia

Australia

2.11 In most Australian states other than Tasmania, the minimum age of criminal responsibility is ten years of age. In Tasmania, the corresponding age is seven years. In some of the Australian states, there are legislative provisions similar to the rebuttable presumption of doli incapax giving exemption from criminal responsibility for children aged between the minimum age and a certain higher age unless it is proved that, at the time of the offence, the child knew that he or she ought not do the act or make the omission constituting the offence. The following is an outline of the various ages of criminal responsibility in some of the Australian states.

2.12 In the Commonwealth, under the Crimes Act 1914, it is provided that a child under ten years of age cannot be liable for an offence against a law of the Commonwealth.

2.13 In the Northern Territory, section 38 of the Criminal Code provides that:

“(1) A person under the age of 10 years is excused from criminal responsibility for an act, omission or event.

(2) A person under the age of 14 years is excused from criminal responsibility for an act, omission or event unless it is proved that at the time of doing the act, making the omission or causing the event he had capacity to know that he ought not to do the act, make the omission or cause the event.”

2.14 In New South Wales, section 5 of the Children (Criminal Proceedings) Act 1987 provides that: “It shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence.”

2.15 In Queensland, similar provisions are made for persons of immature age under section 29 of the Criminal Code Act 1899:

“(1) A person under the age of 10 years is not criminally responsible for any act or omission.

(2) A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission the person had capacity to know that the person ought not to do the act or make the omission.”

2.16 Section 5 of the Young Offenders Act 1993 in South Australia provides as follows: “A person under the age of 10 years cannot commit an offence.”

2.17 Section 18 of the Criminal Code Act 1924 in Tasmania provides as follows:

“(1) No act or omission done or made by a person under 7 years of age is an offence.

(2) No act or omission done or made by a person under 14 years of age is an offence unless it be proved that he had sufficient capacity to know that the act or omission was one which he ought not to do or make.”

2.18 In Western Australia, under section 29 of the Criminal Code:

“A person under the age of 10 years is not criminally responsible for an act or omission. A person under the age of 14 is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.”

New Zealand

2.19 In New Zealand, both the minimum age of criminal responsibility and the rebuttable presumption of doli incapax are governed by statute. Sections 21 and 22 of the New Zealand Crimes Act 1961 provide as follows:

“21(1) No person shall be convicted of an offence by reason of an act done or omitted by him when under the age of 10 years.

22(1) No person shall be convicted of an offence by reason of any act done or omitted by him when of the age of 10 but under the age of 14 years, unless he knew either that the act or omission was wrong or that it was contrary to law.”

Asia

Mainland China

2.20 In Mainland China, a child who has not attained the age of 14 is exempt from criminal responsibility. Under Article 17, Chapter 2 of the Criminal Law of the People’s Republic of China, a person who has attained the age of 16 shall be criminally responsible for the crime committed. However, where the crime of intentional killing of another, intentional injuring of another causing serious injury or death, rape, robbery, drug trafficking, arson, explosion or poisoning is committed by a person who has attained the age of 14 but is below the age of 16 years, he or she shall be criminally responsible for any of these offences. However, a person who has attained the age of 14 but is below the age of 18 shall be given a lesser punishment or a mitigated punishment for the crime committed. It is further provided under the same Article that where a person is not criminally punished because he has not reached 16 years of age, the head of his family or guardian will be ordered to subject the person to discipline. Shelter and rehabilitation will be provided by the government on a need basis.

Taiwan

2.21 In Taiwan, Article 18 of the Criminal Law provides that a child who has not attained the age of 14 years will not be punished for his act. An order will instead be made under Article 86 for him to be sent to a rehabilitation centre where rehabilitating education will be provided. A person over 14 but below the age of 18 years is criminally responsible for the crime committed, but will receive a mitigated sentence.

Singapore

2.22 Under the Singapore Children and Young Persons Act 1993, a child is defined as a person who is below the age of 14 years. A juvenile is defined as a person aged between seven and 16 years of age while a young person is a person aged between 14 and 16 years of age. In Singapore, provisions are made in respect of the criminal responsibility of a child up to the age of 12 years of age. Sections 82 and 83 of the Singapore Penal Code respectively provide that:

“82 Nothing is an offence which is done by a child under 7 years of age.

83 Nothing is an offence which is done by a child above 7 years of age and under 12, who has not attained sufficient maturity of understanding to judge of the nature and consequence of his conduct on that occasion.”

2.23 Under section 2 of the Singapore Criminal Procedure Code:

“... the youthful offender is defined as including any child convicted of any offence punishable by fine or imprisonment who in the absence of legal proof to the contrary is above the age of seven and under the age of 16 years in the opinion of the court before which the child is convicted.” [25]

A youthful offender in Singapore would thus include those who fall within the definitions of a child, a juvenile and a young person. Under section 235 of the Singapore Criminal Procedure Code, the criminal court is given a discretion to deal with a youthful offender in accordance with the Children and Young Persons Act 1993. This legislation has the effect of allowing youthful offenders to be tried and dealt with in juvenile courts where their interests will be taken into consideration in sentencing. Powers of sentencing include the making of care and supervision orders in respect of these offenders.


Malaysia

2.24 In Malaysia, the age of criminal responsibility is defined in sections 82 and 83 of the Malaysia Penal Code:

“(82) Nothing is an offence which is done by a child under ten years of age.

(83) Nothing is an offence which is done by a child above ten years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequence of his conduct on that occasion.”

In this respect, the legal position in Malaysia is similar to that in Singapore, save that “the floor age is ten instead of seven years.“[26] Under section 293 of the Malaysian Criminal Procedure Code, the criminal court is given a discretion to deal with a youthful offender under the Juvenile Courts Act 1947, thus giving a similar flexibility to that provided by the Children and Young Persons Act in Singapore.

India

2.25 In India, section 82 of the Indian Penal Code provides that “Nothing is an offence which is done by a child under seven years of age.” A child under seven years of age is thus exempt from any criminal responsibility. For a child above seven and under twelve years of age, section 83 of the Penal Code provides that:

“Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.”

Japan

2.26 In Japan, the age of criminal responsibility is 16. Offenders aged between 16 and 20 are generally dealt with in family courts where the sentences imposed are relatively lenient compared with those imposed on adult offenders on similar charges, and would include counselling, monitoring at home or detention at a juvenile institution. The recent unlawful killing in Japan of a 16 year old boy, Takakazu Take, by a 16 year old boy has provoked demands for the lowering of the age at which a person can be charged.

Africa

South Africa

2.27 The minimum age of criminal responsibility in South Africa is seven years of age. A child below the age of seven years is irrebuttably presumed to lack criminal capacity, while a child between the ages of seven and 14 years is “deemed to lack criminal responsibility unless the State proves that the person in question can distinguish between right and wrong and knew the wrongfulness of the offence at the time of its commission.”[27] Unlike the position in Hong Kong, the burden of proof imposed on the prosecution in seeking to rebut the presumption is proof on a balance of probabilities, rather than proof beyond reasonable doubt.

Oceania and the Pacific islands

Fiji

2.28 In Fiji, similar presumptions of doli incapax are adopted in respect of the law governing the age of criminal responsibility of children and young persons, albeit the ages set for the irrebuttable and rebuttable presumptions are different from those adopted in Hong Kong. Section 14 of the Fiji Penal Code (Cap. 17) provides as follows:

“1. A person under the age of ten years is not criminally responsible for any act or omission.

2. A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

3. A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.”

2.29 Section 29 of the Juvenile Act (Cap. 56) further provides that:

“1. It shall be conclusively presumed that no child under the age of ten years can be guilty of any offence.

2. A person of or over the age of ten and under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not do the act or make the omission.

3. A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.”

Other overseas jurisdictions

2.30 To give a more complete picture of the range of ages at which criminal responsibility is fixed in other overseas jurisdictions, the following list shows the minimum age of criminal responsibility in a number of jurisdictions which have not been examined in the preceding paragraphs:

2.31 In addition, a comprehensive list showing the age of criminal responsibility in all the jurisdictions referred to in this consultation paper is provided in Annex 3.

International trends

2.32 It is clear from the material contained in this chapter that there is considerable disparity among different jurisdictions as to the minimum ages adopted for imposing criminal responsibility. There is no doubt that Hong Kong’s minimum age is at the low end, with minimum ages ranging internationally from seven to 16 years. Hong Kong is not alone in adopting seven as the minimum age, however. That age is followed in such varied jurisdictions as Singapore, Switzerland and South Africa. What is perhaps of more significance is that where change has taken place, the trend appears to have been towards a raising of the minimum age. This has prompted the observation that :

“There has been a trend internationally towards raising the age in recent years-for example, in Canada from seven to 12 and in Israel from nine to 13. In a report of January 1995, the UN Committee on the Rights of the Child recommended that ‘serious consideration be given to raising the age of criminal responsibility throughout the areas of the United Kingdom’.”[28]

2.33 Australia, too, has changed its laws in this area and has abandoned the common law rule of seven years as the minimum age of criminal responsibility. With the exception of Tasmania which still retains seven years as the minimum age, most of the Australian states and territories have now adopted ten years as the minimum age of criminal responsibility. New South Wales, South Australia, Queensland, Western Australia, Victoria and the Northern Territory have all now adopted ten years of age as the minimum age of criminal responsibility. Similarly, in Africa, the Children’s Statute 1996 in Uganda raised the minimum age from seven to 12, while proposals have been made in both Ghana and South Africa to raise the minimum age from the present seven years of age.[29]

2.34 The international trend towards a raising of the minimum age of criminal responsibility must be viewed with some caution, however. Equally, while the practice in other jurisdictions is of relevance, it cannot be regarded as presenting a conclusive case for change, particularly in an area of the law which even more than most reflects the cultural and social values of the particular jurisdiction. In the following chapter we set out the arguments for and against the raising of the minimum age of criminal responsibility in Hong Kong.

[19] Hansard, HL Deb, vol 564, col WA 82, 27 February 1995. The order of the list has been changed for our purposes from an alphabetical list to one arranged according to age.

[20] House of Commons Standing Committee B (pt 10) <http://www.parliament.the-stationery-o...798/cmstand/b/st980430/am/80430s10.htm> (23 June 1998).

[21] P Cavadino, “Goodbye Doli, Must We Leave You?” (1997) Vol 9, No 2, Child and Family Law Quarterly 165, at 170.

[22] P Cavadino, “Children Who Kill: a European Perspective” (1996) September 13 New Law Journal, at 1325.

[23] Hansard, HL Deb, vol 564, col WA 82, 27 February 1995.
[24] C McClain, “Problems relating to age and criminal capacity” in J Soth-Nielsen (ed) South African Juvenile Justice: Law Practice and Policy, quoted in South African Law Commission, Juvenile Justice (1997), Issue Paper 9, at paragraph 3.10.
[25] Tan Yock Lin, Criminal Procedure (Butterworths Asia, 1997) at para 4 XXI 2.
[26] Cited above, Criminal Procedure, at para 4 XXI 2.
[27] South African Law Commission, Juvenile Justice (1997), Issue Paper 9, at paragraph 3.5.
[28] Cited above, “Goodbye Doli, Must We Leave You?”, at 170.
[29] Report by the Ghana National Commission on Children (1996), Part VII, article 1, referred to in South African Law Commission, Juvenile Justice, above, at 3.11.