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Hong Kong Law Reform Commission |
5.1 In the preceding chapters, we have outlined the law relating to
the minimum age of criminal responsibility and the rebuttable presumption of
doli incapax and set out the arguments for and against reform. In this
chapter we offer a number of possible options for reform. In doing so, we
should make clear that the Commission has not concluded in favour of one option
rather than another, or set its face against options not explored in this paper.
We include in our options for reform the option of retaining the law unchanged,
and we should stress that at this stage we remain as open to that conclusion as
to any of the alternatives for reform properly so called.
5.2 The
possible alternative approaches to reform are too numerous to list exhaustively.
In practical terms, therefore, we have restricted the options proposed in this
paper to what seem to us to be the four most realistic. In identifying those
options, we have borne in mind the following factors:
a) the Committee on the Rights of the Child of the United Nations has specifically requested that Hong Kong review its current law with a view to raising the minimum age of criminal responsibility;
b) the international trend appears to be towards a raising of the minimum age of criminal responsibility;
c) there is no significant body of opinion which contends that the existing age of criminal responsibility is too high; and
d) following judicial disapproval of the consequence of the application of the rebuttable presumption of doli incapax, that doctrine has been abolished in England and Wales.
Those
factors lead us to the suggestion that the realistic alternatives to maintaining
the current law unchanged should be restricted to a raising of the minimum age
of criminal responsibility, and the abolition or curtailment of the existing
rebuttable presumption of doli incapax (on this latter point, we are not
aware of any commentator who has argued for an extension of the
application of this presumption). In addition, it appears to be generally
accepted by those who favour change that the minimum age of criminal
responsibility should not exceed fourteen years. We accordingly consider that
debate on the proper minimum age should be confined to the years between seven
and fourteen.
5.3 In reaching any conclusion as to which option should
be pursued, we believe that a number of factors must be taken into
account:
a) the solution chosen must reflect Hong Kong’s particular circumstances and community views;
b) while practice in other common law jurisdictions and international legal trends are persuasive, they should not be taken as conclusive evidence of a need for change;
c) the incidence and nature of juvenile crime at various ages;
d) prosecution policy in relation to young offenders; and
e) the alternatives to criminal prosecution which are currently available in respect of young offenders.
5.4 Turning
now to the options for reform, the four options we have identified for reform
are as follows:
A) Retain the present system;
B) Raise the minimum age of criminal responsibility, but abolish the rebuttable presumption of doli incapax;
C) Raise the minimum age of criminal responsibility and retain the rebuttable presumption of doli incapax for persons between the revised age and 14 years. The burden of rebutting the presumption continues to rest with the prosecution;
D) Raise the minimum age of criminal responsibility and create a rebuttable presumption of doli capax for persons between the revised age and 14 years. The burden of rebutting the presumption would rest with the defence.
5.5 This option maintains the status quo. Under this option, those
below seven years of age are irrebuttably presumed to be doli incapax,
while those aged between seven and 14 years of age are presumed to be doli
incapax, though this presumption is capable of being rebutted by the
prosecution on proof beyond reasonable doubt that at the time of the alleged
offence, the person in question knew his or her act to be seriously
wrong.
5.6 As the merits and demerits of the present system have been
examined in Chapters 3 and 4, they will not be repeated here. While the
current minimum age of criminal responsibility is low when compared with many
other overseas jurisdictions, the various safeguards or alternatives to
prosecution are generally sufficient to ensure that young children involved in
crime are dealt with by means other than prosecution. The reality is that while
the present system might technically expose a child as young as seven years of
age to the risk of prosecution and conviction, the majority of young offenders
are spared this process. According to information provided by the Police, of
the 8,810 juveniles arrested for various offences in 1997, 4,802 (54.5%) persons
were eligible for the Police Superintendent’s Discretion Scheme. A total
of 3,265 of these eligible offenders were cautioned; giving a caution rate of
68% of those eligible for the Scheme and 37.1% out of the total 8,810 juveniles
arrested. Tables 6 to 10 of Annex 2 provide a breakdown of some of the more
serious crimes involving children and young persons from the ages of seven to
14. It can be seen that the Scheme has been more widely applied in favour of
younger children. From these data, it can be argued that the preservation of
the status quo is necessary to protect the community in relation to those cases
involving more serious offences committed by young children.
5.7 The arguments for and against the raising of the minimum age of
criminal responsibility, as well as the abolition of the rebuttable presumption
of doli incapax, have been examined in Chapters 3 and 4 and these
arguments, again, will not be repeated here. This option requires consideration
of the appropriate level to which the minimum age of criminal responsibility
should be raised. The removal of the rebuttable presumption of doli
incapax would expose to automatic criminal liability those between the new
minimum age of criminal responsibility and the age of fourteen. The difficulty
lies in determining who within the ages of seven to 14 years should be included
in the revised minimum age. The selection is by no means easy. In England and
Wales the minimum age is ten years. The abolition of the rebuttable
presumption of doli incapax means that all persons at or above the age of
ten years in England and Wales are now made fully responsible for their criminal
acts. If a similar approach is to be adopted in Hong Kong, it is necessary
first to be satisfied that children here are sufficiently mature at the age of
ten years (or indeed whatever is the chosen age) to justify the imposition on
them of full criminal responsibility.
5.8 One advantage of this option
is that it would greatly simplify the law by applying only one test as to
criminal responsibility. It would also mean that children who had formerly been
exposed to criminal proceedings at an inappropriately young age would be spared
that ordeal. Furthermore, the abolition of the rebuttable presumption of
doli incapax would rid Hong Kong of a doctrine which, in Lord
Lowry’s words, “has been inconsistently applied and which is
certainly capable of producing inconsistent results”.
5.9 One
disadvantage of the abolition of the rebuttable presumption of doli
incapax would be the loss of a protective mechanism to take account of those
aged between the revised minimum age and 14 years who are less mature than their
peers. Under this option, these young persons would be subject to full adult
criminal justice.
5.10 This option would appear to result in the least change to the
present system. Under this option, both the irrebuttable and rebuttable
presumptions of doli incapax are retained, save for the raising of the
minimum age of criminal responsibility. Also, under this option, the burden of
rebutting the presumption remains with the prosecution, who must prove beyond
reasonable doubt that the child knew the particular act constituting the offence
was seriously wrong. Like option B, however, the principal difficulty is
determining the appropriate point at which the revised minimum age could be set.
This option arguably provides a compromise between the two earlier options by
raising the minimum age (thus ensuring support from those who have criticised
the current minimum age as outdated and unjustifiably exposing undeserving young
children to criminal proceedings) while at the same time maintaining some
protection for children in the “intermediate years” between the
revised minimum age and fourteen years. The option does not, however, answer
the numerous criticisms which have been made of the rebuttable presumption of
doli incapax, both judicially and in the United Kingdom Parliament.
5.11 Under this option, the present rebuttable presumption
of doli incapax would give way to a new rebuttable presumption of doli
capax where those aged between the revised minimum age and 14 years would be
presumed to be capable of committing a crime unless they are able to adduce
evidence to the contrary. The advantages of this option are that it not only
responds to criticism that the present minimum age of criminal responsibility is
too low, but also preserves some discretion in respect of children between the
revised minimum age and 14 years, and goes some way to answer criticisms of the
existing rebuttable presumption of doli incapax.
5.12 The major
difference between this option and option C is that instead of being presumed to
be doli incapax, as in the case of option C, those aged between the
revised minimum age and 14 years would be deemed to be capable of committing an
offence (ie doli capax), but would be provided an opportunity for
rebuttal. The burden of rebutting the presumption of doli capax would
lie on the defence. However, as in most criminal cases where the defendant is
legally required to prove an issue, the standard of proof required of the
defence would be the lower civil standard of proof on the balance of
probabilities, and not the criminal standard of proof beyond reasonable
doubt.
5.13 In concluding this consultation paper, we invite comment
principally on the specific options for reform which we have identified in this
chapter, but would welcome thoughts on other means of improving the present
system for determining the age of criminal responsibility in criminal cases.
The Commission remains open- minded on the best way forward, and seeks input
from the community as to the preferred option.