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Hong Kong Law Reform Commission |
4.1 An inevitable part of any review of the law governing the minimum
age of criminal responsibility in Hong Kong must be the rebuttable presumption
of doli incapax which applies in respect of children between the ages of
seven and fourteen, a fact reflected in our terms of reference. The law
on the presumption of doli incapax has been examined in Chapter 2 of this
paper, but to recap its essential elements, under section 3 of the Juvenile
Offenders Ordinance (Cap 226) (the JOO), a conclusive or irrebuttable
presumption arises that a child is doli incapax or is incapable of
committing a crime on proof or admission of the basic fact that the child is
under seven years of age. The presumption of doli incapax continues to
apply for a child who has attained seven but is under 14 years of age; but can
be rebutted by the prosecution on proof that at the time of the offence, the
child knew that the particular act was not merely naughty or mischievous, but
“seriously wrong”.
4.2 We have outlined in the previous
chapter the arguments for and against raising the age at which the irrebuttable
presumption of doli incapax ceases to apply and gives way to a rebuttable
presumption. Allied to the question of determining the appropriate point at
which to fix the minimum age of criminal responsibility is the question of
whether or not the rebuttable presumption of doli incapax should be
retained, and if so to what age group it should apply
4.3 In this
regard, there seems little dispute that full criminal responsibility should
apply to a child of 14. It is generally assumed that by 14 years of age, a
person would have reached a degree of social and mental maturity sufficient to
make him accountable for his own deeds, including criminal deeds. According to
Kohlberg’s theory on human development referred to in Chapter 3, an
adolescent should be capable from around the age of 13 years of learning to be
law abiding for the maintenance and preservation of community welfare. The
question is therefore not whether the existing rebuttable presumption should be
extended to children of 14 and above but whether it should be restricted, or
disapplied altogether. The arguments set out in this chapter proceed on that
basis.
4.4 Those in favour of retaining the rebuttable presumption of
doli incapax argue that it provides the necessary leeway for a class of
young people whose degree of maturity may vary not only among children of
different ages, but also among children of the same age. It is suggested that
the rebuttable presumption has helped to achieve a fair and objective assessment
which ensures that only those who have been proved to possess sufficient
maturity to appreciate that their criminal acts amount to serious wrongs would
be held fully responsible and would face criminal
sanction.
4.5 Furthermore, it is argued that the removal of the
rebuttable presumption would result in unfairness. If the minimum age is set at
too low an age, the removal of the rebuttable presumption would necessitate the
indiscriminate prosecution of children at a young age, without the discretion to
take account of the individual child’s level of maturity, or to disregard
those cases where the child acted through a sense of mischief rather than a
realisation that what he was doing amounted to a serious wrong.
4.6 Even
where the minimum age is fixed at a reasonably high level so that those older
than that minimum age will generally be mature enough to appreciate the
wrongfulness of their acts, there remains the possibility that a handful of
those within the group will be less mature than the majority. Should the
rebuttable presumption of doli incapax be removed, it is argued that this
would prejudice less well developed children who would be irrebuttably presumed
to be doli capax. The preservation of the rebuttable presumption would
help to prevent such unfairness.
4.7 One of the assertions of those in favour of removing the
rebuttable presumption is that if the minimum age of criminal responsibility
were adjusted upwards, the rebuttable presumption could be removed altogether as
sufficient protection would be given to younger children by the absolute bar on
prosecution imposed by the minimum age of criminal responsibility. To counter
the argument, it has been observed that:
“Whilst it is common sense to presume that most children know the difference between right and wrong in a general sense, we do not believe that this should automatically lead to the conclusion that they can be expected to assume the same degree of responsibility for their actions as an adult.”[44]
Added
to this observation is the concern that once the rebuttable presumption is
abolished, children will be treated in the same way as adults, and exposed to
the full trauma of the prosecution process.
4.8 Laws J set out in his judgment in C (A Minor) v DPP a
detailed critique of the rebuttable presumption of doli incapax. He
began by stating that:
“... if this presumption is to be rebutted, there must be clear positive evidence that the defendant knew his act was seriously wrong, not consisting merely in the evidence of the acts amounting to the offence itself.”[45]
On
this issue, Laws J took the view that the presumption was in principle
objectionable and out of step with the general law:
“It is no part of the general law that a defendant should be proved to appreciate that his act is ‘seriously wrong’. He may even think his crime to be justified; in the ordinary way no such consideration can be prayed in aid in his favour. Yet in a case where the presumption applies, an additional requirement, not insisted upon in the case of an adult, is imposed as a condition of guilt, namely a specific understanding in the mind of the child that his act is seriously wrong. This is out of step with the general law.”[46]
4.9 Laws
J in the Divisional Court argued strongly for the abolition of the
rebuttable presumption:
“The common law is not a system of rigid rules, but of principles, whose application may alter over time, and which themselves may be modified. It may, and should, be renewed by succeeding generations of judges, and so meet the needs of a society that is itself subject to change. In the present case the conditions under which this presumption was developed in the earlier law now have no application. It is our duty to get rid of it, if we properly can.”[47]
Laws
J concluded that: “In those circumstances, I would hold that the
presumption relied on by the defendant is no longer part of the law of
England.”[48]
4.10 On
appeal in 1995, the House of Lords overruled the Divisional Court’s
decision and confirmed that the rebuttable presumption of doli incapax
was still the law. However, it was observed in the House of Lords that the
doctrine was not without problems and that a review by the legislature, it was
suggested, would be appropriate. Just such a review resulted in the repeal of
the rebuttable presumption in England and Wales by section 34 of the Crime and
Disorder Act 1998, which provides:
“The rebuttable presumption of criminal law that a child aged 10 or
over is incapable of committing an offence is hereby
abolished.”
4.11 To rebut the presumption, it is necessary for the
prosecution to prove that the child knew at the time of the offence that his
actions were “seriously wrong”. Laws J criticised this requirement
as being “conceptually obscure” as the term meant neither
“legally wrong” nor “morally wrong”.
4.12 Those in favour of removing the rebuttable presumption question
whether it is right to maintain the presumption that all children between the
ages of seven and 14 are invariably unable to understand the difference between
right and wrong, or that children within that age bracket are unable to
appreciate when an act amounts to a serious wrong. Many of these advocates see
the presumption as providing a means for children (particularly between the ages
of ten and 14) to avoid proper court sanctions. Given the complexities of the
modern world in which today’s children have been brought up, it is argued
that they acquire the ability to distinguish right from wrong at an earlier age
than their forbears. There is therefore no justification for applying the
presumption of doli incapax to them. If anything, the presumption should
be that children are presumed to know right from wrong unless the contrary can
be shown. In the parliamentary debate on the Crime and Disorder Bill 1997 (the
UK Bill), Mr Alun Michael observed that:
“The essence of the doli incapax doctrine is that children under 10 are below the age of criminal responsibility, and nothing in the proposal will change that. The presumption that generally children aged between 10 and 14 do not know the difference between right and wrong defies common sense. Anyone who has worked with children in that age group knows that they have a very well developed sense of right and wrong, and if that is not so in a particular case, evidence of the problem should be brought before the court. It is better for the court to take account of the offender’s age and maturity at the point of sentence.”[49]
4.13 An argument repeatedly advanced in the Parliamentary debates on
the UK Bill was the fact that the abolition of the rebuttable presumption would
serve to impress upon youngsters the need to be responsible for their own
actions. Mr Michael observed that:
“... If children of the age in question have committed a criminal offence, it is more, not less, necessary for their wrongdoing to be acknowledged, and corrective action to be taken. Appropriate punishment and effective intervention at that stage would prevent many such children from becoming tomorrow’s adult criminals. Neither justice nor the young people are served by permitting the latter to evade responsibility for their actions.”[50]
4.14 According to information provided by the Police, young children
between the ages of seven and 14 in Hong Kong are arrested for a range of
offences. Tables 1 to 5 of Annex 1 show the arrest figures for a number of
these offences which are relatively serious in nature. It can be seen that from
1993 to 1997, while children between the ages of seven and 14 were arrested for
a range of offences, arrests involving children at or below the age of nine
years were (with the exception of shop theft) relatively insignificant. The
number of those arrested starts to pick up at the age of ten years, grows in
momentum and reaches a point of concern at the age of 12 years and beyond. The
figures illustrate that children within the age range to which the rebuttable
presumption currently applies (particularly those aged ten and above) have in
fact been involved in relatively serious offences. The nature of those
offences, it is argued, must imply knowledge on the part of the child that his
or her conduct goes beyond mere mischievousness and illustrates the
inappropriateness of continuing to apply the rebuttable presumption of doli
incapax.
4.15 The figures included in the Tables show that from the
age of seven to 14 years, there is a steady increase in the number of children
arrested. This leads to the argument that the presumption of doli
incapax should not be indiscriminately applied to all children within that
age-bracket. Readers may wish to consider whether the differing degrees of
participation in crime by children of different ages justify a narrowing of the
age range to which the rebuttable presumption applies, or its outright
abolition.
4.16 It has been argued that the operation of the rebuttable
presumption does a disservice to both the child concerned and the community at
large as it stands in the way of early rehabilitation and makes a return to the
“right track” unlikely, if not impossible. Such a view was raised
by Professor Glanville Williams in the 1950s when he said:
“Thus at the present day the ‘knowledge of wrong test’ stands in the way not of punishment, but of educational treatment. It saves the child not from prison, transportation, or the gallows, but from the probation officer, the foster-parent, or the approved school. The paradoxical result is that, the more warped the child’s moral standards, the safer he is from the correctional treatment of the criminal law.”[51]
4.17 The
observations of Professor Glanville Williams were echoed in the English
Parliamentary debates where Mrs Eleanor Laing observed that:
“As has been mentioned, the doctrine of doli incapax was originally introduced in the 14th century, when it protected 10 to 13-year-olds from harsh adult justice. Surely things have changed significantly, so that rather than being exposed to harsh adult justice, a child is in the 1990s more likely to be helped than punished on being found guilty of a crime at that age. If we do not abolish the doctrine of doli incapax, we shall be denying another chance to children who, if found guilty, could be protected, given additional education or removed from unfortunate surroundings.... If a person is considered to be a child and therefore doli incapax until the age of 14, someone a week short of his or her 14th birthday can escape justice and proper punishment....”[52]
4.18 Laws
J expressed similar views and condemned the doctrine on the grounds that it
meant that young delinquents: “...are left outside the law, free
to commit further crime, perhaps of increasing gravity, unchecked by the courts
whose very duty it is to bring them to
book.”[53]
4.19 It is further argued that the removal of the rebuttable
presumption would not unfairly expose children to adult justice. As mentioned
in Chapter 3, the JOO provides adequate protection to children from the full
rigours of the law that would otherwise be imposed on adult offenders. Children
and young persons would in most cases be tried in juvenile courts, while as far
as practicable young persons would not be sentenced to imprisonment if there are
other suitable disposals available.
4.20 Laws J pointed out that the doctrine was defective as it
presumed a defendant under 14 years of age to possess a “subnormal mental
capacity”; in the sense that a child under 14 years of age is not to be
presumed to know the nature of his or her acts simply because other children of
his or her age and background would normally be held to possess such knowledge.
Laws J considered this presumption to be unacceptable and commented
that:
“There can be no respectable justification for such a bizarre state of affairs. It means that what is by definition the exception is presumed to be the rule. It means that the law presumes nothing as regards a child between 10 and 14 except that he lacks the understanding of all his average peers. If that is the state of law, we should be ashamed of it.”[54]
4.21 In addition to these alleged defects, Laws J further criticised
the doctrine as being both divisive and perverse. According to the judge, it
was divisive as it tended to regard children from respectable families as more
capable of appreciating their criminal acts to be seriously wrong; thus
rendering these children more likely to be classified as being doli capax
than those from relatively humble origins. Laws J considered the doctrine to be
perverse as it tended to absolve from criminal responsibility the very children
most likely to commit criminal acts.
4.22 On the basis of these arguments, Laws J reached the conclusion
that the rebuttable presumption of doli incapax had ceased to be the law
of England. On appeal, the House of Lords reversed the ruling and held that the
rebuttable presumption would continue to be the governing law. The Lords did
not, however; refute the argument that the doctrine was defective. On the
contrary, having thoroughly considered the views of Laws J, Lord Lowry observed
that the matter was a classic case for parliamentary investigation, deliberation
and legislation. The recent abolition of the rebuttable presumption by section
34 of the Crime and Disorder Act 1998 may be seen as a direct consequence of the
views expressed by the House of Lords.
4.23 In his judgment, Lord Lowry
agreed that the rebuttable presumption was “out of step with the general
law”, but explained that the general law was not meant to apply without
qualification to children under 14. Lord Lowry also agreed that the phrase
“seriously wrong” was conceptually obscure. He qualified this
statement, however, by saying that the meaning of the phrase was reasonably
clear when contrasted with the phrase “merely naughty or
mischievous”. On Laws J’s allegation that the rebuttable
presumption had led to the conclusion that a child was presumed not to be of
normal capacity for his age, Lord Lowry observed:
“Proof of mental normality has in practice (understandably but perhaps not logically) been largely accepted as proof that the child can distinguish right from wrong and from a criminal intent. The presumption itself is not, and never has been, completely logical; it provides a benevolent safeguard which evidence can remove. Very little evidence is needed but it must be adduced as part of the prosecution’s case, or else there will be no case to answer.”[55]
4.24 On
Laws J’s assertion that the presumption was both “divisive”
and “perverse” as children from a more respectable background would
be tested by a higher standard, Lord Lowry was also unable to provide a
satisfactory reply. He said that:
“One answer to this observation (not entirely satisfying, I agree) is that the presumption contemplated the conviction and punishment of children who, possibly by virtue of their superior upbringing, bore moral responsibility for their actions and the exoneration of those who did not.”[56]
4.25 Lord
Lowry made clear in his judgment, however, that it was never his intention to
refute the conclusions reached by Laws J. Indeed, Lord Lowry concluded
that:
“... the time had come to examine further a doctrine which appears to have been inconsistently applied and which is certainly capable of producing inconsistent results, according to the way in which courts treat the presumption and depending on the evidence to rebut it which is available in each case.”[57]
[44] House of Commons
Standing Committee B (Pt 7)
<http://www.parliament.the-stationery-o...798/cmstand/b/st980512/pm/80512s04.htm>
(23 June 1998).
[45] [1994] 3
WLR 888 (the Divisional Court), at
894.
[46] Cited above, the
Divisional Court, at 894 to
895.
[47] Cited above, the
Divisional Court, at 897.
[48]
Cited above, the Divisional Court, at
898.
[49] House of Commons
Standing Committee B (Pt 7)
<http://www.parliament.the-stationery-o...798/cmstand/b/st980512/pm/80512s07.htm>
(23 June 1998).
[50] House of
Commons Standing Committee B (Pt 7)
<http://www.parliament.the-stationery-o...798/cmstand/b/st980512/pm/80512s07.htm>
(23 June 1998).
[51] Glanville L
Williams, “The Criminal Responsibility of Children” (1954) Crim. L.
R.493, at 495.
[52] House of
Commons Standing Committee B (Pt 7)
<http://www.parliament.the-stationery-o...798/cmstand/b/st980512/pm/80512s06.htm>
(23 June 1998).
[53] Cited
above, the Divisional Court, at
896.
[54] Cited above, the
Divisional Court, at 895.
[55]
[1995] 2 WLR 383 (the House of Lords), at
397.
[56] Cited above, the House
of Lords, at 399.
[57] Cited
above, the House of Lords, at 403.