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Chapter 3 - The arguments for and against reform
________________________
Introduction
3.1 In the first part of this chapter we set out
the general arguments for and against raising the minimum age of criminal
responsibility, and in the second part we examine the arguments for and against
abolition or reform of the closely linked rebuttable presumption of doli
incapax. The arguments follow those presented in the consultation
paper.
Arguments in favour of
retaining the age of seven years as the minimum age of criminal
responsibility
Minimises exploitation
of children by adult criminals
3.2 The consultation paper pointed out that one of
the principal 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, it was argued, the greater would 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 objection to the
proposed increase in the minimum age of criminal
responsibility:“[M]y 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.”[35]3.3 In
the light of that objection, the Attorney General of the day indicated that the
Government would not oppose the proposed amendment and the age of criminal
responsibility accordingly remained unchanged. Similar concerns were expressed
in the report submitted in 1996 on behalf of the Hong Kong Government to the
United Nations Committee on the Rights of the
Child:“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.”[36]
Greater maturity of
present day children
3.4 It can be argued that the enhanced educational
opportunities available to today’s children (not least through the
increased availability of knowledge through the media and the Internet) mean
that they reach social maturity more quickly than their counterparts in earlier
times, and are capable of distinguishing right from wrong at a young age.
3.5 Most children in Hong Kong begin their
kindergarten education at the 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 academic training for their
students, 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.”[37]
3.6 It is argued by those who favour
retaining the existing age of criminal responsibility 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.
3.7 Opinion was divided on this point among
those who responded to the consultation paper, with some agreeing that
today’s children reached maturity at a younger age than those of earlier
generations, while others such as the majority of the Lawyer’s Group of
the Amnesty International Hong Kong Section
maintain[38]
that children under 14 years of age are not mentally mature enough to appreciate
the serious wrongfulness of their criminal conduct. This latter group argues
that it is therefore inappropriate to expose these children to a criminal
prosecution process whose procedure and underlying educational value they do not
understand.
Children are no longer
subject to draconian penalties
3.8 The consultation paper pointed out that one of
the principal reasons 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 14. 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. 3.9 As
mentioned in the consultation paper, the Report to the UN 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”
.[39]
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.3.10 To further illustrate
the assertion that children nowadays are no longer subject to draconian
penalties, the consultation paper examined a range of sentences which might be
imposed on children and young persons. These sentencing options are designed to
encourage 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.”3.11 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 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 an 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 is 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.3.12 The following are the options
generally available to courts for the purposes of rehabilitating young offenders
between seven and 14 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
OrderUnder 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 schools 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 SchemeThe 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.(iv) A binding over
order A
binding over order aims to prevent a future breach of the peace. In R v To
Kwan-hang and
Another,[40]
it was explained that a breach of the peace occurs where a person resorts to
violence which injures someone or damages property, or which puts someone in
immediate danger of injury or puts property in immediate danger of
damage.A binding over order may be made in
respect of anyone before the court if the court is satisfied that the peace will
be disturbed by such a person unless he is bound over. Accordingly, such an
order is appropriate not only for a defendant who is brought before the court;
but can also be applied to a complainant, an informant or a witness who is
before the court, if the court foresees any disturbance of the peace on his or
her part. One of the situations where a
binding over order can be made is where the prosecution agrees to offer no
evidence in respect of the acts of a defendant on condition that the defendant
agrees to bind himself over, and to keep the peace for a certain period of time.
In those circumstances, there is no conviction and the binding over order is
therefore not a sentence. Accordingly, the accused’s consent to be bound
over by either himself entering into his own recognizance or to find sureties to
be of good behaviour would not result in any criminal record being entered
against him.
Prevents establishment
of pattern of delinquent behaviour
3.13 Noting that the options available to a court
of law in dealing with young offenders focus mainly on rehabilitation, the
consultation paper presented the argument that raising the minimum age of
criminal responsibility would have the negative effect of removing 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.
3.14 This argument was
supported by some who responded to the consultation paper, who observed that the
Police Superintendents’ Discretion Scheme has worked well to “nip
things in the bud” as far as young offenders are concerned and serves to
discipline young children who might have otherwise gone
astray.
Adequate existing
provision to limit prosecution of children under ten
3.15 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.3.16 In response, the consultation
paper pointed out that it can be argued that under the existing prosecution
policy, special allowances have been made for offenders aged between seven and
ten years, thus making it the exception rather than the rule to subject children
in their formative years to the trauma of criminal proceedings. The
consultation paper referred to the Report to the
UN,[41]
which had pointed out 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:
| l | the
seriousness of the alleged offence; |
| l | the
age, apparent maturity and mental capacity of the
child; |
| l | the
efficacy of available alternatives to prosecution (such as a Police
Superintendent’s discretionary power to issue a
caution); |
| l | the
sentencing options available to the Juvenile
Court; |
| l | the
child’s family circumstances; the child’s antecedents;
and |
| l | the
question of whether a prosecution would be harmful or
inappropriate. |
Indeed, most of
these considerations have been included in the prosecution policy guidelines
issued by the Department of Justice as guidance for Government Counsel when
considering the institution or continuation of criminal proceedings. The
guidelines provide, inter alia,
that:“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.”[42]3.17 The
consultation paper pointed out that 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. Depending on the
circumstances, the Superintendent may (subsequent to the caution) make an order
for the Juvenile Protection Service (JPS) of the Police to pay follow-up visits
to the cautioned person; or may instead refer the person to the Social Welfare
Department, Education Department, and/or Community Support Services Scheme
through JPS for professional after care
measures.3.18 The combined effect of the
prosecution policy to which we referred earlier and the range of alternatives to
formal court proceedings which are available is that young offenders under the
age of 18 years (and particularly those below the age of ten) are diverted to
non-court processes whenever possible. To illustrate this point, we noted in
the consultation paper that according to information provided by the
Police,[43]
a total of 8,810 persons below 18 years of age were arrested for various
criminal offences in 1997. Of these, 4,802 (54.5%) were eligible for the PSDS.
Of those eligible for the scheme, a total of 3,265 persons were not prosecuted,
but were cautioned under the PSDS instead. The number of children aged between
seven and 14 years cautioned under the PSDS for specific selected offences from
1993 to 1998 is provided at Tables 3.1 to 3.6 of Annex 3. This gives a caution
rate of 68% out of those eligible for the PSDS. Figures on
recidivism[44]
confirm the scheme to be a success, as a great majority of juvenile offenders
who have been diverted from court proceedings through the PSDS have refrained
from committing further criminal offences during the monitoring period. Of the
total number of persons cautioned and dealt with under the PSDS for criminal
cases, the recidivist rate for the years 1993 to 1995 is 14.3%, 15.7% and 17.7%
respectively.3.19 In its submission to the
Commission, the Hong Kong Police remarked that one of the reasons for their
support of the present minimum age of criminal responsibility and the present
procedure for dealing with young persons is that the present system as a whole
helps to facilitate the operation of the PSDS which can, in appropriate cases,
divert young persons of up to the age of 18 years from the full impact of the
criminal justice system. It should be noted that the effect of raising the
minimum age of criminal responsibility would be to remove children below that
age from eligibility for the PSDS.
3.20 It followed from this line of argument that,
since alternative measures have been designed to limit the prosecution of very
young children, the present minimum age should be retained so that community
interests could be safeguarded by retaining the formal prosecution option for
the rare cases where a serious crime is committed by a young child.
3.21 This point was taken up by one
commentator, who remarked that “wickedness” or
“evilness” was not the prerogative only of adults. He observed that
in other jurisdictions incidents had occurred where violent and disturbed
children had been involved in threats, assault and even homicide. The
“Bulger case” in the United Kingdom and a recent case in Hong Kong
involving the torture and killing of a young teenager by his peers were
illustrations of the extent to which young children had been involved in serious
crime.3.22 A contrary view was expressed by
another respondent who considered that there were inadequate provisions to limit
the prosecution of children under ten years of age. The discretionary power of
the police to arrest these offending children and the discretionary power of the
prosecution to prosecute them may, according to this commentator, be exercised
with variations from district to district and from time to time. The PSDS had
weaknesses, which included the fact that the scheme is only open to an offender
with no previous criminal record; the offender must have admitted the offence,
and that the caution administered makes no distinction between a child who
understands the seriousness of his act and one who does
not.3.23 The Boys’ and Girls’
Clubs Association of Hong Kong shared a similar view on this point and
remarked[45]
that there is a substantial disparity in the ways young children are handled by
the police: they may decide to prosecute a child in one case but may decide not
to do so in a similar case involving a different child.
Essential for the
prosecution of more serious crimes
3.24 Those favouring the retention of the existing
age of criminal responsibility argue that the preservation of a power to
prosecute children between the ages of seven and 14 is essential in order that
young delinquents who commit serious offences 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. As noted above, 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.3.25 Statistical data provided by the
Police on the number of persons aged between seven and 14 years arrested in the
period between 1993 and 1999 make clear that, while only a very small number of
children aged between seven and ten are arrested for serious offences such as
robbery or burglary, such cases do occur. The statistics are at Tables 4.1 to
4.7 of Annex 4. 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. For this reason, the consultation paper noted the argument that while
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.
3.26 This argument was supported by, among
others, the Immigration Department which suggested
that:[46]
“although statistics show that very
young children pose little threat to law and order, the present minimum age
should be retained so that community interest could be safeguarded by retaining
the formal prosecution option for the rare cases, such as the Bulger case in
England (para.3.18), where a serious crime is committed by a young
child.”3.27 Those supporting this
view argued that the preservation of the power to prosecute children between the
ages of seven and 14 would not only provide a necessary instrument for the
prosecution of serious offences involving young children, but would also act as
a deterrent to children at risk of becoming further involved in
crime.3.28 Others, however, disagreed with
this argument on the basis that the small number of children below the age of
ten who were arrested did not justify the retention of the existing minimum age
of criminal responsibility. Those few young children who were involved in
serious crimes could in any case be more appropriately dealt with by measures
other than the criminal justice system.
The rebuttable
presumption of doli incapax adequately protects children between the ages of
seven and 14
3.29 In answer to the suggestion that it is
inappropriate to subject children as young as seven years of age to the formal
prosecution process, the consultation paper noted that it could be argued that
the existing rebuttable presumption of doli incapax has operated
to protect children between seven and 14 years from the full force of criminal
responsibility, leaving only those children within the age-group who can be
proved to know that their conduct was a serious wrong to 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.
Arguments in favour of
raising the minimum age of criminal responsibility from seven to a higher
age
3.30 We pointed out in the consultation paper that
those who favour raising the minimum age of criminal responsibility propose a
variety of different ages as the new minimum, but there has been 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 a modern
society like Hong Kong 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.
A seven year old child
is too young to appreciate the gravity of his actions
3.31 The consultation paper noted that the
principal argument 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 or her acts were seriously wrong.
Indeed, as stated earlier, the age of seven years was fixed by the courts in
late medieval England. Those arguing for change point out that, in the light of
modern knowledge of child psychology and human development, the present
situation is unsatisfactory and 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.
3.32 The consultation paper referred to the
findings of Lawrence Kohlberg, a leading American psychologist specialising in
moral development, moral judgment and reasoning. According to Kohlberg, these
moral aspects of an individual would develop 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.
3.33 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.”[47]3.34 The
Hong Kong Psychological Society agrees with the assertion that a seven-year old
child is too young to be called upon to bear criminal responsibility for his or
her conduct. In its submission to us, the Society expressed the view that
children would have learned of the importance of law and order, and the
expectations society would have of them, by the age of ten to 12 years,
corresponding to the age at which a child’s cognitive and moral maturity
begin to develop.3.35 A substantial
number of those who responded to the consultation paper agreed that a seven-year
old child is too young to appreciate the gravity of his actions. The Duty
Lawyer Service (DLS), among others,
agreed[48]
that children would only begin to have full control of themselves at about the
age of 12 years and that a mature moral concept of right or wrong would only
develop at the age of 12 or 13 years. The DLS further commented that only
children aged 12 (who have received seven out of nine years of formal education)
could have acquired sufficient knowledge of “right” and
“wrong”, and not children of seven years of age (who have only
completed one to two years of primary education).
3.36 In its submission to the Commission, the
Department of Health said
that:“Developmental psychologists
believe that the ability to act on right and wrong depends on many factors,
including cognitive understanding of the rules of society, perspective taking
and empathic feelings. These factors are important determinants of
children’s moral judgement and reasoning. They follow a developmental
path and are closely tied to children’s age. A child 10 years and under
is unlikely to have attained the necessary skills to judge right and wrong and
to fully realize the serious consequences of his/her
actions.”3.37 Similarly, the Hong
Kong Young Women’s Christian Association
believes[49]
that present day children are only more mature than those in the past in their
outward appearance. It is therefore inappropriate to expose them to the rigours
of the criminal justice system.
Unfair to require a
seven year old child to stand trial
3.38 A further
argument in favour of raising the age of criminal responsibility is that 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 to 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.”[50]3.39 In
the particular circumstances of the Bulger case, the European Court of Human
Rights subsequently held in respect of one of the accused that
he:“... was unable to participate
effectively in the criminal proceedings against him and was, in consequence,
denied a fair hearing in breach of Article 6(1) [of the European Convention for
the Protection of Human Rights and Fundamental
Freedoms].”[51]In
reaching that conclusion, the court took account of psychiatric evidence as to
the accused’s ability to participate in the proceedings, and the formality
and ritual of the Crown Court which “must at times have seemed
incomprehensible and intimidating for a child of
eleven.”
There was evidence
that:“... certain of the
modifications made to the courtroom, in particular the raised dock which was
designed to enable the defendants to see what was going on, had the effect of
increasing the applicant’s sense of discomfort during the trial, since he
felt exposed to the scrutiny of the press and the
public.”[52]3.40 A
number of respondents supported the assertion that young children should never
be subject to criminal proceedings. The Hong Kong Family Law Association
believes that it is not necessary to charge, try and sentence a young offender
in order to bring him back on the right lines. More convictions and more
custodial sentences will not, according to the Association, solve the problems
of young offenders; rather, the reverse is likely to occur. The Association
argues that a child in trouble should be rehabilitated through mechanisms other
than the criminal justice system.
Undesirable to impose
the stigma of conviction on a child
3.41 Apart from being unfair and inappropriate to
subject a seven-year old child to the traumatic and confusing experience of
appearing in court, those favouring a change in the law point out that 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 of 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. This argument was supported by a number of
respondents to our consultation paper, who believed that imposing a criminal
conviction on a young child involved in crime would alienate him from society,
and may eventually lead him towards a criminal career.
Other jurisdictions have
higher minimum age of criminal responsibility
3.42 The figures in the previous chapter show 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 United Nations Committee on the Rights
of the Child and the United Nations Human Rights Committee, both of which have
recommended that Hong Kong should consider raising its age of criminal
responsibility.
Better education does
not necessarily guarantee a greater readiness to distinguish right from
wrong
3.43 Those
favouring the 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.”[53]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”
.[54]3.44 A
number of respondents observed that better educational opportunities do not
necessarily mean that children today are more readily able to distinguish right
from wrong. It could be argued that while children nowadays might be seen as
more sophisticated than their predecessors, they are also subject to greater
levels of misinformation, which may impede their ability to distinguish right
from wrong. One respondent remarked that present day education places too much
emphasis on intellectual development, sometimes at the expense of moral
development. Students are thus not adequately taught or trained in the making
of correct moral, social and value judgements. Accordingly, greater educational
opportunity would not guarantee any greater appreciation by young children of
the risk and consequences of their acts.
Young children should in
principle be exempt from prosecution
3.45 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 ten years have
been dealt with by alternatives other than prosecution. Many of these cases are
dealt with by the PSDS. It could be said that the 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. 3.46 Mr
Ian Wingfield, Law Officer of the Civil Division of the Department of Justice,
noted[55]
that almost none of the 20 to 30 children between the ages of seven and 11
prosecuted each year in Hong Kong were convicted. Mr Wingfield assumed that the
court on each of those occasions had ruled that the child had not had the
requisite capacity. Mr Wingfield concluded that the chances of a child below
the age of 11 being convicted were so remote that the reason given for retaining
seven years as the age of criminal responsibility could not be justified by the
facts. 3.47 Figures provided by the
Prosecutions Division of the Department of Justice for 1998 and 1999 for the
number of defendants aged 11 years or younger appear to bear out this
contention.
|
No. of Juvenile Defendants at Age 11 or Below being
Prosecuted
|
|
Age
|
In 1998
|
In 1999
|
|
No. of Defts. Prosecuted
|
No. of Defts. Convicted
|
No. of Defts. Prosecuted
|
No. of Defts. Convicted
|
|
Age 7 or below
|
0
|
0
|
0
|
0
|
|
Age 8
|
2
|
1
|
0
|
0
|
|
Age 9
|
7
|
0
|
1
|
1
|
|
Age 10
|
12
|
4
|
3
|
0
|
|
Age 11
|
17
|
2
|
17
|
2
|
|
Total :
|
38
|
7
|
21
|
3
|
No significant crime
committed by young children
3.48 Those who favour a raising of the minimum age
of criminal responsibility argue that there is little criminal conduct by young
children. Figures provided by the police show the number of children between
the ages of seven and 14 arrested in the years 1993 to 1999.
Persons aged 7 - 14 arrested for
crime from 1993 to 1999
(by age at
arrest)
|
No. of persons arrested
(%)
|
|
Age
Year
|
7
|
8
|
9
|
10
|
11
|
12
|
13
|
14
|
Total
(7-14)
|
|
1993
(%)
|
26
(0.56)
|
51
(1.09)
|
101
(2.17)
|
198
(4.25)
|
358
(7.68)
|
664
(14.24)
|
1,368
(29.34)
|
1,896
(40.67)
|
4,662
(100)
|
|
1994
(%)
|
27
(0.55)
|
67
(1.35)
|
107
(2.16)
|
187
(3.78)
|
386
(7.80)
|
674
(13.62)
|
1,508
(30.46)
|
1,994
(40.28)
|
4,950
(100)
|
|
1995
(%)
|
24
(0.50)
|
52
(1.09)
|
100
(2.09)
|
207
(4.33)
|
324
(6.78)
|
680
(14.23)
|
1,436
(30.04)
|
1,957
(40.94)
|
4,780
(100)
|
|
1996
(%)
|
29
(0.63)
|
46
(1.00)
|
101
(2.21)
|
183
(4.00)
|
327
(7.14)
|
665
(14.53)
|
1,345
(29.39)
|
1,881
(41.10)
|
4,577
(100)
|
|
1997
(%)
|
22
(0.52)
|
52
(1.22)
|
74
(1.74)
|
154
(3.60)
|
273
(6.40)
|
614
(14.40)
|
1,248
(29.26)
|
1,828
(42.86)
|
4,265
(100)
|
|
1998
(%)
|
28
(0.60)
|
38
(0.93)
|
93
(2.27)
|
160
(3.90)
|
310
(7.56)
|
609
(14.85)
|
1,161
(28.32)
|
1,701
(41.49)
|
4,100
(100)
|
|
1999
(%)
|
23
(0.60)
|
39
(1.02)
|
77
(2.01)
|
140
(3.66)
|
251
(6.57)
|
454
(11.88)
|
1,165
(30.47)
|
1,674
(43.79)
|
3,823
(100)
|
|
1993
-
1999
(%)
|
179
(0.57)
|
345
(1.11)
|
653
(2.10)
|
1,229
(3.94)
|
2,229
(7.15)
|
4,360
(13.99)
|
9,231
(29.63)
|
12,931
(41.50)
|
31,157
(100)
|
3.49 It is significant to note that in each of the
years from 1993 to 1999, less than 1% of the total number of arrested persons
aged between seven and 14 years of age are seven-year-olds. Eight-year-olds
constitute just over 1%, and nine-year-olds just over 2%, of the total number of
arrested persons aged between seven and 14 years. A similar picture emerges
from the following chart provided by the Police, which shows the number of
persons arrested in the period from January to June 1998 who were below 18 years
of age.
3.50 These statistical findings confirm that, in
reality, young children at or below the age of nine pose very little threat to
law and order. Accordingly, the consultation paper noted that it could be
argued that the law should reflect this reality and adjust the minimum age of
criminal responsibility to a more appropriate age to ensure that young children
who pose no substantial threat to society should not be subject to criminal
proceedings.3.51 The Duty Lawyer Service
confirmed[56]
that no significant offences have been committed by young children. In respect
of those represented by the Service aged between eight and 11 years the offences
committed were mainly theft and were not of a serious nature. For this reason,
the Service believes that young children at or below the age of 12 pose no
substantial threat to society and should not incur criminal responsibility for
their actions, a view supported by a substantial number of individual
respondents as well as organisations with an interest in youth
matters.
The present minimum age
is inconsistent with other legislative provisions which protect children up to
the age of 21
3.52 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 anomalous as “people may be deemed too young for some
activities, yet old enough for
others”
.[57]3.53 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....”[58]3.54 Those
favouring change argue that the present application of criminal responsibility
at the age of seven is inconsistent with the protection afforded to children by
a wide range of other legal provisions, which recognise that children under 14
years do not have the capacity or ability to make decisions with serious
consequences for themselves or others.
Adequate alternatives
to criminal prosecution already available
3.55 In answer to concerns that raising the minimum
age of criminal responsibility would prompt an increase in juvenile crime by
those no longer falling within the net of criminal liability, those arguing for
change point out that there exist a range of alternatives to prosecution which
enable unruly children to be brought under control. We examine those
alternatives in chapter five.
Arguments in favour of
retaining the rebuttable presumption of
doli incapax
3.56 As stated in the consultation paper, 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
14, a fact reflected in our terms of reference. Under section 3 of the Juvenile
Offenders Ordinance (Cap 226), 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 to 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”. 3.57 We have presented in the
preceding paragraphs of this chapter the views put forward by those who
responded to the consultation paper arguing for and against the raising of the
age at which the irrebuttable presumption of doli incapax applies.
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 the
arguments each way are set out below.
Ensures only mature
children are held criminally responsible for their acts
3.58 The consultation paper suggested that those in
favour of retaining the rebuttable presumption of doli incapax would
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.3.59 The
consultation paper 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.3.60 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.3.61 A number of those who
responded to the consultation paper supported the suggestion that the rebuttable
presumption of doli incapax should be retained as it ensures only mature
children who are able to appreciate that their criminal acts are serious wrongs
would be made criminally responsible. These respondents agreed that the
rebuttable presumption does provide an essential discretion without which
children of varying maturity above the minimum age of criminal responsibility
would all be made liable to prosecution. 3.62
Mr Ian Dobinson, an Associate Professor of the Department of Law of the City
University of Hong Kong, believes that the “mischievous discretion”
approach is an important legal safeguard for the interests of young offenders.
Mr Dobinson
explained:[59]“...I
agree with some of the ‘legal’ arguments favouring its abolition but
I am concerned about the possible negative social effects of such a change. How
these changes will affect the situation in England will have to await proper
research but at this stage I would have to predict significant social problems.
Hong Kong need not take this risk. The research has not been done and there is
no need to rush to change the law. Subject to an increase of the minimum age to
10, the law need not be changed. As mentioned above, the system appears to be
working. If in the future, there is good evidence to support the abolition of
the rebuttable presumption, then the matter could be raised then. Until such
evidence exists, however, Hong Kong should not change this legal
approach.”3.63 Many of those who
responded in favour of raising the minimum age of criminal responsibility
considered it important to retain the rebuttable presumption in order to offer
greater protection for less mature children who fall between the revised minimum
age and 14 years.
Children should not be
treated in the same way as adults
3.64 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 this 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.”[60]3.65
Concern has also been expressed 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. A number of respondents observed
that the existing rebuttable presumption of doli incapax in effect
provides a gradual progression to full criminal responsibility as the child
matures.
Arguments in favour of
the abolition of the rebuttable presumption of
doli incapax
It is no longer
necessary and is out of step with the general law
3.66 The consultation paper referred to the
judgment of Laws J in C (A Minor) v DPP in which the judge gave a
detailed critique of the rebuttable presumption of doli incapax 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.”[61]
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.”[62]3.67 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.”[63]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”
.[64]3.68 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. In response to the specific point made by Laws J that the
presumption was “out of step with the general law”, Lord Lowry
observed:“True enough, but the
general law was not meant to apply without qualification to children under
14.”[65]The
House of Lords conceded the doctrine was not without problems and suggested that
a review by the legislature would be appropriate. Just such a review resulted
in the subsequent repeal of the rebuttable presumption in England and Wales by
section 34 of the Crime and Disorder Act
1998.3.69 Mr I Grenville Cross, QC, SC,
Director of Public Prosecutions of the Department of Justice, agrees that the
rebuttable presumption should go and
said:[66]“...
there is no longer any need for the doli incapax rule: we now have compulsory
education in Hong Kong, plus a range of non-custodial disposals and treatments.
There is obvious force in the view of Professor Glanville Williams that the
‘knowledge of wrong’ test stands in the way not of punishment but of
education 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, the Professor adds, is that
‘the more warped the child’s moral standards, the safer he is from
the correctional treatment of the criminal
law.’”
The presumption is
conceptually obscure
3.70 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”. In the House of Lords, Lord Lowry agreed that the phrase
“seriously wrong” was conceptually obscure, but went on to
say:“... but, when the phrase is
contrasted with ‘merely naughty or mischievous’, I think its meaning
is reasonably
clear.”[67]Lord
Lowry pointed out that while the presumption was not, and never had been,
completely logical, it provided a “benevolent safeguard” which
evidence could remove.3.71 M. R. Nunns, a
barrister, in responding to our consultation paper
observed[68]
that:“As Laws J. would have it, in C
(A Minor) V DPP, the doctrine of doli incapax is ‘conceptually
obscure’. This writer would go further and describe it as a wooly
concept. It is wrong that the Court should have to grapple with such a concept
when deciding whether or not it has jurisdiction to deal with a young offender.
This is so, whatever the child’s age. On the assumption that the minimum
age of responsibility be now raised to, say, 10 years, there can be even less
excuse for thus complicating the court
procedure.”3.72 A number of
respondents suggested that the uncertainties arising from the concept of what
amounts to a “serious wrong” would be removed if the rebuttable
presumption of doli incapax were abolished altogether. The protection it
affords to children could be met by an upward adjustment of the minimum age of
criminal responsibility in Hong Kong.
Present day children
are able to distinguish right from wrong at a young age
3.73 Those in favour of removing the rebuttable
presumption of doli incapax 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 and some who responded to the
consultation paper 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.”[69]
3.74 In C (A Minor) v DPP, Lord Jauncey
said:“It is, no doubt, undesirable
that a young person who commits an offence and who genuinely does not know that
he is doing something seriously wrong should suffer the rigours of the criminal
law. But is a blanket presumption such as exists in England and Wales at the
moment the best way to achieve protection for such a person? There must be many
youthful offenders under the age of 14 who are very well aware that what they
are doing is seriously wrong. Indeed it is almost an affront to common sense to
presume that a boy of 12 or 13 who steals a high powered motor car, damages
other cars while driving it, knocks down a uniformed police officer and then
runs away when stopped is unaware that he is doing
wrong.”[70]3.75 Responding
to the argument that better education means that present day children are better
equipped to distinguish right from wrong, Lord Lowry said in the same
case:“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.”[71]
Children should learn
to be responsible for their own actions
3.76 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 children the need to be
responsible for their own actions. Mr Alun 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.”[72]
The presumption stands
in the way of early rehabilitation
3.77 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.”[73]3.78 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....”[74]
3.79 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.”[75]
In contrast, Lord Lowry remarked in the same case when it came before the House
of Lords that:“... while times have
greatly changed since the days when children of 8 and 10 years were hanged for
offences much less heinous than murder, it should be observed that the purpose
and effect of the presumption is still to protect children between 10 and 14
from the full force of the criminal
law.”[76]
Children would not be
unfairly exposed to adult justice by the removal of the
presumption
3.80 It is further argued that the removal of the
rebuttable presumption would not unfairly expose children to adult justice. As
mentioned earlier in this chapter, the Juvenile Offenders Ordinance 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. The views of those who responded to the consultation paper
in respect of the argument that children nowadays are no longer subject to
draconian penalties were dealt with in the earlier parts of this chapter. These
arguments will not be repeated here.
The presumption is
defective as it presumes abnormality
3.81 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.”[77]3.82 In
response, Lord Lowry pointed out that the purpose of the presumption was to
protect children between seven and 14 years from the full rigour of the criminal
law. It was a “benevolent safeguard” which was not and never had
been completely logical, but its purpose was benign.
The presumption is both
divisive and perverse
3.83 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 “good
homes” as more capable of appreciating their criminal acts to be seriously
wrong, and so more likely to be classified as being doli capax than those
from “bad homes”. 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.3.84 In the House of
Lords, Lord Lowry responded to Laws J’s assertion as
follows:“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.”[78]
[35] Hong
Kong Hansard, Session 72/73, 446 (14 February 1973).
[36] 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.[37]
Cited above, the Report to the UN, at
163.[38]
In a letter to the Secretary to the Commission dated 1 May
1999.[39]
Cited above, the Report to the UN, at
186.[40]
[1994] 2 HKC
293.[41]
Cited above, the Report to the UN, at
187-188.[42]
Department of Justice, Prosecution Policy: Guidance For Government
Counsel (1998), at
18-19.[43]
In a letter to the Secretary to the Commission dated 26 September
1998.[44]
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.[45]
In a letter to the Commission dated 31 March
1999.[46]
In a letter to the Secretary to the Commission dated 8 April
1999.[47]
L M, Archives “Now we are all 10 again”,
<http://www.informinc.co.uk/LM/Lm105/LM105 Doli.html>, (Issue 105, 1997)
at
2.[48]
In a letter to the Secretary to the Commission dated 11 March 1999.
[49]
In a letter to the Secretary to the Commission dated 16 March
1999.[50]
P Cavadino, “Goodbye Doli, Must We Leave You?” (1997) 9, No 2
Child and Family Law Quarterly 165 at
169.[51]
V v the United Kingdom (European Court of Human Rights, Application No
24888/94), at 18. Article 6(1) of the Convention provides that in “the
determination of ... any charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and impartial tribunal
established by law. Judgments shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the interests of morals,
public order or national security in a democratic society, where the interests
of juveniles or the protection of the private life of the parties so require, or
to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of
justice.”[52]
Cited above, V v the United Kingdom, at
18.[53]
[1995] 2 WLR 383, at
396.[54]
Cited above, “Goodbye Doli, Must We Leave You?” at
167.[55]
In a letter to the Secretary to the Commission dated 18 March
1999.[56]
In a letter to the Commission dated 11 March
1999.[57]
B Franklin, The Right of Children, (Basil Blackwell Ltd., 1986),
at
7.[58]
Cited above, the Report to the UN, at
15-18.[59]
In a letter to the Secretary to the Commission dated 25 March
1999.[60]
House of Commons Standing Committee B (Pt 7)
<http://www.parliament.the-stationery-o...798/cmstand/b/st980512/pm/80512s04.htm>
(23 June
1998).[61]
[1994] 3 WLR 888 (the Divisional Court), at
894.[62]
Cited above, the Divisional Court, at 894 to
895.[63]
Cited above, the Divisional Court, at
897.[64]
Cited above, the Divisional Court, at
898.[65]
[1996] 1 AC 1, at
33[66]
In a letter to the Secretary to the Commission dated 31 March
1999.[67]
[1996] 1 AC 1, at
33[68]
In a letter to the Secretary to the Commission dated 22 January
1999.[69]
House of Commons Standing Committee B (Pt 7)
<http://www.parliament.the-stationery-o...798/cmstand/b/st980512/pm/80512s07.htm>
(23 June
1998).[70]
[1996] 1 AC 1, at
21[71]
[1996] 1 AC 1, at
33[72]
House of Commons Standing Committee B (Pt 7)
<http://www.parliament.the-stationery-o...798/cmstand/b/st980512/pm/80512s07.htm>
(23 June
1998).[73]
Glanville L Williams, “The Criminal Responsibility of Children”
(1954) Crim. L. R.493, at
495.[74]
House of Commons Standing Committee B (Pt 7)
<http://www.parliament.the-stationery-o...798/cmstand/b/st980512/pm/80512s06.htm>
(23 June
1998).[75]
Cited above, the Divisional Court, at
896.[76]
[1996] 1 AC 1, at
36[77]
Cited above, the Divisional Court, at
895.[78]
Cited above, the House of Lords, at 399.