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Hong Kong Law Reform Commission |
3.1 As we have seen, while the minimum age of criminal responsibility
in Hong Kong is fixed at seven years, the operation of the rebuttable
presumption of doli incapax in respect of children between the ages of
seven and fourteen means that such children will not be criminally liable unless
the prosecution can prove that they knew at the time they committed the offence
that their conduct was seriously wrong. There is, in effect, an intermediate
stage through which a child passes when the full rigours of the criminal justice
system are not automatically applied to him, even though he has attained the
minimum age of criminal responsibility. Any adjustment to the minimum age of
criminal responsibility will obviously affect the number of children who fall
within this category and the question of the minimum age and the application of
the rebuttable presumption of doli incapax are closely
linked.
3.2 We consider in the next chapter whether it is desirable to
maintain the rebuttable presumption of doli incapax or whether this
should be abolished altogether, as has recently been done in England. In this
chapter we confine ourselves to the question of the minimum age of criminal
responsibility and set out the arguments for and against change. There have
been no suggestions in Hong Kong that the age should be lowered; in setting out
the arguments for and against change in the following paragraphs we are
therefore concerned only with proposals that the minimum age should be
raised.
3.3 One of the most cogent arguments in favour of preserving the
present minimum age is the concern that raising the minimum age would widen the
pool of young children available for exploitation by undesirable characters.
The higher the minimum age is fixed, the greater will be the number of children
exempt from prosecution, thus enlarging the number of “more mature”
young children capable of exploitation by adult criminals. Indeed, the fear
that children above the age of seven were old enough to be used by criminals for
unlawful purposes was the principal reason for the rejection by the Legislative
Council in 1973 of a proposal in the Juvenile Offenders (Amendment) Bill (the
Bill) to raise the minimum age of criminal responsibility to ten. In the second
reading of the Bill, Mr Woo Pak-chuen raised the following objections to the
proposed increase in the minimum age of criminal responsibility:
“Mr Woo: - Sir, my Unofficial colleagues and I have given anxious consideration to the increase in the minimum age of criminal responsibility proposed in clause 4 of this bill. Our conclusion is that this change would be most undesirable in the present circumstance of Hong Kong.
It is arguable whether a child of 7, 8, or 9 years of age is capable of carrying out an act with criminal intent. But leaving this question aside we consider that children of those ages are old enough to be used by criminals for unlawful purposes. Members of this Council will no doubt recall that there have been reports of racketeers using such young children to carry drug packets. To raise the minimum age therefore we may play into the hands of those who would use young children as safe pawns in furtherance of their own vile rackets.
My Unofficial colleagues and I are of the opinion that the minimum age of criminal responsibility should remain, at least for the time being, unchanged. I shall accordingly move an amendment to clause 4 of the bill at the Committee Stage, the effect of which will be to restore that age from 10 years to 7 years.
THE ATTORNEY GENERAL (MR ROBERTS): - Sir, in view of the anxiety expressed by the honourable Member, the Government will not oppose the amendment which he proposes to make at the Committee Stage.”[30]
Similar
concerns were expressed in the UN Report submitted in 1996 on behalf of the Hong
Kong Government to the Committee on the Rights of the Child of the United
Nations:
“Organised crime syndicates could conceivably exploit a rise in the age at which a child would be liable to prosecution by coercing or employing young children to act as thieves or drug-runners in the knowledge that they could not be prosecuted. The higher the age of criminal responsibility, the easier it would be for gangsters to exploit children.”[31]
It
should be pointed out, however, that where it could be proved that an adult had
instigated criminal conduct by a child, the existing criminal law would allow
the adult to be prosecuted as a principal.
3.4 It has been suggested that the enhanced educational opportunities
for children (not least through the increased availability of knowledge through
the media and the internet) mean that children nowadays have acquired a greater
degree of social maturity than their counterparts in the past; and are thus
capable of distinguishing right from wrong at a young age.
3.5 In Hong
Kong, most children begin their kindergarten education at the early age of three
or four. School attendance is compulsory for those between the ages of six and
15. Under the “General Guidelines on Moral Education in
Schools” promulgated by the Education Department, schools are required
not only to provide for their students academic training, but are also tasked to
develop in them:
“... reflective and critical thinking, moral attitudes and social values. Pupils are provided with opportunities to practise moral values and make moral decisions under teachers’ guidance.”[32]
3.6 On
these premises, it is argued that since children would have received some four
years of formal education (two years in kindergarten and another two years in
primary schooling) by the age of seven years; they must by then have had
inculcated in them the notion of “right” and “wrong”, as
well as the necessary “moral attitudes” and “social
values” essential for their recognition that a certain act is a
“serious wrong” in the ordinary sense of the term. This contrasts
with the era where opportunity for education was more limited; and social
maturity in children accordingly came at a later stage of their infancy, thus
justifying the deferral of the imposition of criminal
responsibility.
3.7 A principal reason for the development of the common law rules on
criminal responsibility was to avoid the necessity of imposing on children the
harsh penalties which applied to transgressions of the criminal law in medieval
times. Hence, the fixing of a minimum age of criminal responsibility was
coupled with the rebuttable presumption of doli incapax in respect of
children between seven and fourteen. Draconian penalties are now consigned to
history, and there is no reason to seek to raise the age of criminal
responsibility to protect children from inappropriate
punishment.
3.8 The UN Report argues that the Juvenile Offenders
Ordinance (Cap. 226) (the JOO) “adequately protects children from the
full penalties of the law as they apply to
adults....”[33] Under
section 3A of the JOO, a Juvenile Court presided over by a permanent magistrate
shall have jurisdiction to hear and determine a charge against a child or a
young person of any offence other than homicide. Although the procedure adopted
in the Juvenile Court is basically identical to that in ordinary courts, special
allowances are permitted to cater for the age and maturity of the particular
child defendant. Moreover, when a child is found guilty of an offence in the
Juvenile Court, the presiding magistrate, in considering what should be the
appropriate sentence to be imposed, may take advice from two members of the
Juvenile Courts Advisory Panel. These persons are well-versed in what should be
the appropriate methods for dealing with juvenile offenders.
3.9 The
range of sentences which may be imposed on children and young persons are
deliberately restricted with a view to encouraging rehabilitation rather than
punishment of these offenders. This principle is enshrined in section 11 of
the JOO:
“(1) No child shall be sentenced to imprisonment or committed to prison in default of payments of a fine, damages, or costs.
(2) No young person shall be sentenced to imprisonment if he can be suitably dealt with in any other way.”
In
addition, under section 15 of the JOO, various sentencing alternatives to
imprisonment are provided for children and young persons for the purposes of
rehabilitation through counselling, discipline and training. These methods
include: the provision of care and protection under section 34 of the Protection
of Children and Juveniles Ordinance (Cap. 213) (the PCJO); the paying of a fine,
damages or costs either by the offender or parent or guardian of the offender;
the ordering of the parent or guardian of the offender to give security for his
good behaviour; the committing of the offender to custody in a place of
detention; and “dealing with the case in any other manner in which it
may be legally dealt with” (section 15(1)(n) of the JOO). In
addition, where a child or a young person is tried by any court for any offence
and the court is satisfied of the person’s guilt, the court may
nevertheless dismiss the charge by virtue of section 15(1)(a) of the JOO. This
discretion is widely exercised by magistrates in the juvenile courts. Before
exercising this discretion, the magistrate would usually take into consideration
all the relevant circumstances, including the seriousness of the offence and the
background of the child or young person in question. Usually, a probation
officer’s report or a report from the Social Welfare Department are called
for to assist in the court’s better understanding of the person’s
background. Once the charge is dismissed under this section, no conviction
record would be entered against the person.
3.10 The following are the
common options generally available to courts for the purposes of rehabilitating
young offenders between seven and fourteen years of age:
(i) A Probation Order
Under the Probation of Offenders Ordinance (Cap 298), a probation order can be made against an offender of any age group. It has a maximum duration of three years. Within the probation period, regular meetings with the probation officer are required for counselling. The probation officer can also direct the offender in terms of work, study, and residence. For young offenders under the age of 16 years, they may be required under the probation order to reside in a probation home during some of the probation period where they are required to undergo a five-hour academic or pre-vocational training each day, on top of a two-hour group training on weekdays. In addition, with a view to cultivating a sense of civic responsibility amongst these youngsters, the residents are required to provide community service to the elderly and the disabled.
(ii) A Reformatory School Order
Under the Reformatory Schools Ordinance (Cap 225), the court may order offenders below 16 years of age to be detained in reformatory schools. One of the major purposes of these school is to remove young offenders from undesirable influences, and so enhance the chance of successful rehabilitation. The maximum period of “in-home” training is three years where academic and pre-vocational training are provided. Participation in community service programmes is also arranged for the purposes of cultivating a sense of civic responsibility.
(iii) The Community Support Service Scheme
The scheme was introduced by the Social Welfare Department and two non-Government organisations with the purpose of reactivating young persons’ interest in school or in work, and to develop their social skills. The scheme operates as an added support to those who are subject to probation orders, reformatory school orders or who have been cautioned under the Police Superintendents’ Discretionary Scheme.
3.11 This
outline of the sentencing options available to the courts is provided to support
the argument that present day sentences on children and young persons are aimed
at rehabilitation rather than retribution and do not warrant a raising of the
minimum age of criminal responsibility. It is not the intention of this paper
to go further into a detailed examination of the broader juvenile justice system
of Hong Kong, nor consider other sentencing options such as orders for the
detention of young offenders to Detention Centres, Training Centres, Drug
Addiction Treatment Centres as these sentencing options are mainly designed for
those at or above the age of 14 years.
3.12 It follows that as the options available to a court of law in
dealing with young offenders focusing mainly on rehabilitation, the raising of
the minimum age of criminal responsibility would have the negative effect that
it would remove children from the safety net of these rehabilitation measures
until they were older and therefore more likely to have established a pattern of
delinquent behaviour. Attempts at rehabilitation may prove less successful
where such behaviour has become established.
3.13 It is argued by those in favour of raising the present minimum
age of criminal responsibility that children in their formative years should not
be made subject to criminal proceedings as the trauma caused may be damaging.
It is thus suggested that seven years is too young an age for court proceedings
as well as too young an age for criminal sanctions.
3.14 In response, it can
be argued that under the existing prosecution policy, special allowances have
been made for offenders aged between seven and ten years. It is pointed out in
the Report to the UN[34] that in
reaching a decision as to whether or not to prosecute a particular case, the
prosecuting authority would take into consideration a range of factors
including:
“It is a long standing statutory requirement that the Courts shall have regard to the welfare of the juvenile appearing before them, in criminal as in civil proceedings. It is accordingly necessary that, in deciding whether or not the public interest requires a prosecution, the welfare of the juvenile should be fully considered as well as the provisions of section 109A of the Criminal Procedure Ordinance, Chapter 221 which restricts sentences of imprisonment of persons between 16 and 21 years of age.
There may be positive advantages for the individual and for society in using prosecution as a last resort. In general there is, in the case of juvenile offenders, a much stronger presumption in favour of methods of disposal which fall short of prosecution unless the seriousness of the offence or other exceptional circumstances dictate otherwise. The objective should be to divert juveniles from court wherever possible. Prosecution should always be regarded as a severe step.
It will never be right to prosecute a juvenile solely to secure access to the welfare powers of the court. Where Government Counsel thinks that there may be grounds for care proceedings and that this might better serve the public interest and welfare of the individual, he should invite the police to put this possibility to the Social Welfare Department.
In deciding whether or not the public interest warrants the prosecution of a juvenile regard should be had to such of the factors set out below:
(i) the seriousness of the alleged offence;
(ii) the age and apparent maturity and mental capacity of the juvenile;
(iii) the available alternatives to prosecution, particularly a Police Superintendent’s discretion power to issue a caution to juveniles, and their efficacy;
(iv) the sentencing options available to the relevant Juvenile Court if the matter were to be prosecuted;
(v) the juvenile’s family circumstances particularly whether the parents of the juvenile appear able and prepared to exercise effective discipline and control over the juvenile;
(vi) the juvenile’s antecedents, including the circumstances of any previous caution the juvenile may have been given, and whether they are such as to indicate that a less formal disposal of the present matter would be inappropriate; and
(vii) whether a prosecution would be likely to be harmful to the juvenile or be inappropriate, having regard to such matters as the personality of the juvenile and his or her family circumstances.”[35]
3.15 One
of the most frequently used alternatives to criminal prosecution in dealing with
an arrested person below the age of 18 is to administer a caution under the
Police Superintendents’ Discretion Scheme (the PSDS). Under this scheme,
a police officer of or above the rank of Superintendent may exercise his or her
discretion not to prosecute an offender under 18 years of age, but instead to
administer a caution. However, before a decision in favour of a caution can be
made, the police officer must be satisfied that:
3.18 It can be argued that the preservation of the power to prosecute
children between the ages of seven and 14 is an essential instrument through
which serious challenges to law and order by young delinquents can be
effectively dealt with. While instances of such conduct may be rare, it is
necessary to retain the option of formal prosecution in the most serious cases.
As we have seen, existing prosecution policy ensures that this power is used
sparingly, but exceptional cases may require its use. One such was the Bulger
case in England, where James Bulger was killed by two boys who were aged ten at
the time of the offence and were 11 years of age when
tried.
3.19 Statistical data provided by the Police on the number of
persons aged between seven and 14 years arrested in the period 1993 to 1997 make
clear that, while only a very small number of children below aged between seven
and ten are arrested for serious offences such as robbery or burglary, such
cases do occur. The statistics are at Tables 1 to 5 at Annex 1. The number of
persons arrested for breaking the law increases proportionally to age, and it is
not unusual for children aged between 12 and 14 years to be arrested for serious
offences such as indecent assault, wounding, serious assault, criminal
intimidation, robbery, burglary, criminal damage. It is therefore argued that,
although the number of occasions when children of seven may be involved in
serious criminal conduct are few, such cases do arise and justify the retention
of the present minimum age to provide the necessary power to deal with children
and young persons whose acts amount to serious challenges to the law and order
of the community.
3.20 In answer to the suggestion that it is inappropriate to subject
children as young as seven years of age to the formal prosecution process, it
can be argued that the existing rebuttable presumption of doli incapax
operates to protect children aged between seven and 14 years from the full
force of criminal responsibility. Only those children within the age-group who
can be proved to know that their conduct amounted to a serious wrong will be
held criminally responsible for their acts. Where such knowledge cannot be
established because of the child’s immaturity, a prosecution will not
succeed. The existing law therefore enables criminal sanctions to be applied to
young children who are aware of the nature of their conduct, while protecting
from prosecution those of a similar age who have not yet reached a sufficient
level of maturity.
3.21 Those who argue in favour of raising of the minimum age of
criminal responsibility propose a number of different ages as the new minimum.
There is, however, no strong suggestion that the minimum age of criminal
responsibility should be fixed at an age higher than 14 years. It appears to be
generally accepted that in modern society a child aged 14 or above should be
mentally mature enough to be accountable for his or her deeds. This leads to
the generally recognised notion that the criminal liability of a person at or
above the age of 14 should be the same as those who are 20, 30 or 40, although
the sentence imposed on a 14 year old would take into consideration the young
age of the offender. This, however, goes to mitigation and not to
responsibility. With that in mind, the arguments which follow in favour of a
raising of the age of criminal responsibility assume that any new minimum would
not exceed 14 years of age.
3.22 One of the most forceful arguments put forward by those in
favour of raising the present minimum age of criminal responsibility in Hong
Kong is that the age was set at a time when there was no scientific basis for
the assertion, albeit rebuttable, that a seven year old child was capable of
appreciating that his acts were seriously wrong. Indeed, as stated earlier, the
age of seven years was arbitrarily fixed by the courts in late medieval England.
In the light of modern knowledge of child psychology and human development, the
situation is unsatisfactory. Those proficient in these fields argue that a
child of seven is unable to appreciate whether particular conduct amounts to a
serious wrong. Indeed, it is argued that a young child’s entanglement in
crime makes him more a “victim” than a perpetrator of the offences
alleged.
3.23 This paper does not pretend to present a detailed
description of the various theories of child psychology and human development,
and can at best provide only a limited outline of views expressed by leading
psychologists which are relevant to the question of whether the present minimum
age is appropriate.
3.24 The concepts of “good” and “
bad”; “right” and “wrong” are essentially
culturally based. What is “right” for one particular culture might
not be “right” for another cultural setting. A person’s
concept of “right” and “wrong” is acquired through
learning or socialisation within the cultural setting in which the person is
raised. It follows that a decision to do “right” or
“wrong” is an exercise of moral judgment which reflects the
established laws, social norms, rules and convention of the cultural setting.
According to Lawrence Kohlberg, a leading American psychologist specialising in
moral development, moral judgment and reasoning are developed in three distinct
levels which can be further sub-divided into six different stages. In the
“preconventional level” (level 1) which is generally believed to
include children between the ages of four and ten years, Kohlberg argues that
observance of rules and regulations is mainly based on a desire to avoid
punishment. In the “conventional level” (level 2) which is
generally believed to include children between the ages of ten and 13 years,
Kohlberg believes that children at the lower end of this age-group are
conforming to the generally acceptable norms and rules with an intent to avoid
disapproval or dislike of others. As they grow older within this age bracket,
children begin to conform for the purposes of avoiding sanctions by legitimate
authorities and findings of guilt as a result of breaking the law. At
adolescence at around 13 years of age, the child proceeds to what Kohlberg has
termed the “postconventional stage” (level 3) where conformity to
the law is motivated by the desire to maintain and preserve community welfare.
3.25 Kohlberg’s theory suggests that conformity by a child under
the age of 13 to rules and commands is generally motivated by a desire to avoid
punishment or disapproval, rather than by an awareness that the conduct is
seriously wrong. It is therefore argued that it is wrong to subject a child of
seven to the consequences of criminal proceedings on the basis that he might be
capable of appreciating the nature of his conduct. It can further be argued
that even if a child of nine or ten is able to tell “right” from
“wrong”; it is doubtful whether he would be able to appreciate an
act to be a serious wrong. The inappropriateness of imposing criminal liability
on a young child has been expressed as follows:
“It seems ridiculous to say that, at the age of 10, when it is probably somebody else who chooses which clothes you wear, what you eat and where you go, a child should be held accountable for what it does in the same way that an autonomous and independent adult should be. The distinction between adult and child is blurred-and in the process, the real meaning of being independent and responsible is lost.”[38]
3.26 Kohlberg’s
findings should be treated with some caution in a Hong Kong context, as they
were based on studies in the USA. There have been no credible studies of Asian
children of which we are aware. Some studies have suggested that Asian adults
are controlled by external values (such as a fear of retribution, or a
loss of face) rather than an internal set of moral values. Regardless of
racial background, it would appear that science is inconclusive as to the age at
which a child clearly perceives right from wrong.
3.27 The nature of the trial process means that a young child
will be placed at a severe disadvantage in conducting his defence, as compared
to an adult defendant. That disadvantage may be so significant as to negate the
possibility of a fair trial. The inability of a young child to cope with the
daunting experience of going to court, or to comprehend the proceedings, may
mean that he is neither able to appreciate advice given to him by his legal
representative nor provide proper and well-reasoned instructions. This must
inevitably affect adversely the child’s interests at the trial. Indeed,
the trial in England of the two 11 year old boys charged with the killing of
James Bulger prompted the following comment:
“... most foreign commentators were amazed that children of this age should be dealt with by an adult-style Crown Court criminal trial. Many observers questioned whether such young children were really able to comprehend the complexities of a lengthy criminal prosecution and trial; whether they should have appeared in the full glare of media coverage of Crown Court proceedings; whether they understood all the issues and language used, in order to give clear instructions as necessary; whether their decision not to give evidence arose from fear of speaking in such a public forum; and whether it was right to lift reporting restriction after conviction, thereby allowing their names and photographs to be widely published with the difficulties which this would pose for their eventual rehabilitation.”[39]
3.28 Apart from being unfair and inappropriate to subject a seven
year old child to the traumatic and confusing experience of appearing in court,
another undesirable effect of prosecuting and convicting a young child is the
fact that he will bear the stigma for the rest of his life for wrongs committed
at a young age. On conviction, the child will be left with a criminal record
which may adversely affect him in later life, whether in respect of overseas
studies, career development or emigration. A conviction early in life may serve
to alienate the child from society and prompt him to a life of anti-social
conduct.
3.29 Our examination in Chapter 2 of the minimum ages of criminal
responsibility in other jurisdictions reveals that Hong Kong is in a minority in
imposing criminal responsibility at the age of seven. The trend is towards a
raising of the age of criminal responsibility, and that trend has been
emphasised by the recommendation by the UN Committee that Hong Kong should
review its present minimum age with a view to raising it. The majority of other
jurisdictions adopt a higher minimum age, and it is argued that Hong Kong should
reflect developments in other common law jurisdictions by raising the minimum
age of criminal responsibility.
3.30 Those favouring retention of the existing age of criminal
responsibility argue that better education opportunities in Hong Kong through
compulsory school attendance for children between the ages of six and 15 have
rendered present day children more mature, and they are thus capable of
distinguishing right from wrong at an early age. In response, those arguing for
a raising of the age claim that better education does not necessarily guarantee
a greater ability in young children to distinguish right from wrong. This
observation was further elaborated by Lord Lowry in the House of Lords’
decision in C (A Minor) v DPP:
“It is true that there is (and has been for a considerable time) compulsory education and, as the judge said, perhaps children now grow up more quickly. But better formal education and earlier sophistication do not guarantee that the child will more readily distinguish right from wrong.”[40]
Echoing
this comment from Lord Lowry is the suggestion that “... in view of the
association between truancy and offending and the recent sharp rise in school
exclusion, that many of the children concerned have in practice failed to
benefit from universal compulsory
education.”[41]
3.31 It is clear from the outline of prosecution policy given earlier
in this chapter that, while children between the ages of seven and 14 are liable
to be prosecuted under the law as it stands, the majority of criminal cases
involving children below the age of 10 years have been dealt with by
alternatives other than prosecution. Many of these cases are dealt with by the
PSDS. It can thus be argued that prosecution policy has in fact tacitly
recognised the inappropriateness and undesirability of subjecting young children
to criminal proceedings which are essentially designed for adult offenders.
Advocates for the raising of the minimum age of criminal responsibility suggest
that what is needed is for the law to be amended to reflect the practice by
raising the minimum age.
3.32 The figures contained in the following Table are computed from
statistical data provided by the Police for the purposes of illustrating the
total number of persons aged between seven and 14 arrested from 1993 to
1997.
Persons aged 7 - 14 arrested for crime from 1993 to 1997
(by age at arrest)
3.35 Critics of the present minimum age point out that it is
inconsistent with the general tenor of most legislative provisions involving
children in Hong Kong, which recognise that special provision must be made for
young children to reflect their lack of maturity and judgment. In view of the
relatively young age the law has fixed for criminal responsibility to commence,
it has been observed that the situation in Hong Kong is ironical as
“people may be deemed too young for some activities, yet old enough for
others”[42]
3.36 A
convenient summary of the different definitions adopted in Hong Kong’s
legislation for “child” is provided in the Report to the UN:
“The Age of Majority (Related Provision) Ordinance (Cap. 410) provides for a person generally to attain majority at the age of 18. Consequential legislative amendments have been made to enable a person who has attained the age of 18 to make testamentary dispositions, act as a co-trustee and guarantor, be qualified to assume the duties of a company director and enter contracts.... The Rules of the Supreme Court provide that a person under 18 cannot sue or be sued in his own name in civil proceedings: he sues by his ‘next friend’ and is sued in the name of his ‘guardian ad litem’ ... All children aged between six and 15 are required by law to attend school.... Under the Crimes Ordinance (Cap 200), the minimum age of consent for sexual acts is 16 years for heterosexual acts and 21 years for homosexual acts.... The Marriage Ordinance (Chapter 181) provides that the minimum age at which persons may marry is 16. Parental consent is required if the person intending to marry is under the age of 21 years.... The Criminal Procedure Ordinance (Chapter 221) and the Evidence Ordinance (Chapter 8) provide for special procedures to be adopted for the giving of evidence in court by witnesses under 14 years of age. Under the Criminal Procedure Ordinance, the special procedures apply to witnesses under 17 years of age in relation to offences of sexual abuse.... The Criminal Procedure Ordinance (Chapter 221) provides for testimony from a child witness to be given through closed circuit television from a place outside the courtroom by way of a video-recording of an interview.... The Evidence Ordinance (Chapter 8) provides that the evidence of a child under 14 years of age shall be given unsworn. Corroboration from other material evidence is not necessary for a conviction nor is it required that a jury be warned against convicting an accused on the uncorroborated evidence of a child.... The Juvenile Offenders Ordinance (Chapter 226) contains further provisions protecting the privacy of children who are involved in court proceedings....”[43]
3.37 It
is argued that the present application of criminal responsibility at the age of
seven is inconsistent with the protection afforded to children in a wide range
of other legal provisions, and should accordingly be revised upwards.
3.38 Raising the age of criminal responsibility would not prompt an
increase in juvenile crime by those no longer falling within the net of criminal
liability. There already exist alternatives to prosecution which enable unruly
children to be brought under control. For example, the Protection of Children
and Juveniles Ordinance (Cap. 213) (the PCJO) is designed to protect children
and juveniles who are in need of care or protection. Under section 34(2)(d) of
the PCJO, a child or juvenile in need of care and protection is one
“who is beyond control, to the extent that harm may be caused to him or
to others”. Thus, a child who is beneath the age of criminal
responsibility may nonetheless be susceptible to control under section 34(1) of
the PCJO:
“A juvenile court, on its own motion or upon the application of the Director of Social Welfare or any person authorized by the Director of Social Welfare in writing in that behalf either generally or specially or of any police officer upon being satisfied that any person of or above the age of 7 years brought before the court or any other person under the age of 7 years is a child or juvenile in need of care or protection, may:-
(a) appoint the Director of Social Welfare to be the legal guardian of such child or juvenile; or
(b) commit him to the care of any person whether a relative or not, who is willing to undertake the care of him, or of any institution which is so willing; or
(c) order his parent or guardian to enter into recognizance to exercise proper care and guardianship; or
(d) without making such order or in addition to making an order under paragraph (b) or (c), make an order placing him for a specific period, not exceeding 3 years under the supervision of a person appointed for the purpose of the court”.
3.39 The
raising of the minimum age of criminal responsibility would not result in
children between the age of seven and the new, higher, age being left
uncontrolled. Orders would be available under the PCJO, which may in any case
be preferable to criminal prosecution as counselling and supervision provided
under such orders to young delinquent children may prove more beneficial than a
criminal sanction.
[30] Hong Kong Hansard,
Session 72/73, 446 (14 February 1973).
[31] 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 (the Report to the
UN), at 186.
[32] Cited above,
the Report to the UN, at
163.
[33] Cited above, the
Report to the UN, at 186.
[34]
Cited above, the Report to the UN, at
187-188.
[35] Department of
Justice, Prosecution Policy: Guidance For Government Counsel (1998), at
18-19.
[36] From information
provided in a letter and its enclosure dated 26 September 1998 by the Police to
the Secretary of the Law Reform Commission, for which the Commission is
grateful.
[37] According to the
Police, a person is regarded as a recidivist if he/she is re-arrested for crime
within two years from the date of the caution, or before he/she reaches 17 years
old (for those arrested after 1st September 1995, before reaching 18 years old),
whichever occurs first.
[38] L
M, Archives “Now we are all 10 again”,
<http://www.informinc.co.uk/LM/Lm105/LM105 Doli.html>, (Issue 105, 1997)
at 2.
[39] P Cavadino,
“Goodbye Doli, Must We Leave You?” (1997) 9, No 2 Child and
Family Law Quarterly 165 at
169.
[40] [1995] 2 WLR 383, at
396.
[41] Cited above,
“Goodbye Doli, Must We Leave You?” at
167.
[42] B Franklin, The
Right of Children, (Basil Blackwell Ltd., 1986), at
7.
[43] Cited above, the Report
to the UN, at 15-18.