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Hong Kong Law Reform Commission |
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Chapter 4 - Responses to the consultation
exercise
___________________________
Introduction
4.1 The consultation exercise which we conducted to
gauge the public’s views on the appropriate age at which to fix the
minimum age of criminal responsibility took two forms. Firstly, we issued a
consultation paper which offered four possible options for reform, and secondly
we commissioned the Department of Applied Social Studies of the City University
of Hong Kong to conduct a telephone survey of public opinion on this issue on
our behalf. This chapter sets out the results of that combined consultation
exercise.
The options for
reform
4.2 The consultation paper offered four possible
options for reform:
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.
In arriving at these options, we noted
that there is no significant body of opinion which contends that the existing
age of criminal responsibility is too high and that the international trend
appears to be towards a raising of the minimum age of criminal responsibility.
We therefore concluded 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, one of
those who responded to our consultation paper argued that the rebuttable
presumption should be extended to children up to the age of 18, but there seemed
to be no other support for that view in the bulk of submissions received).
Responses to the
consultation paper
4.3 The consultation paper elicited responses from
a wide range of individuals and organisations. In addition, the paper was
discussed by a number of District Fight Crime Committees, by the Standing
Committee of Young Offenders of the Fight Crime Committee and by the Fight Crime
Committee itself. We are grateful to those concerned for providing us with
minutes of those meetings (or a summary of the
discussion).
4.4 The table below endeavours to
provide a breakdown of all the comments we received. In compiling this table,
we have treated a submission from an individual in identical numerical terms as
that from an organisation. The Law Society’s collective response, for
instance, is counted as “one”, just as is that of an individual
solicitor who responded to us separately. Where we have been presented with
minutes of meetings at which a range of differing views were expressed by
identified members, we have counted each named speaker’s views separately
in the table below.
4.5 Where a response does
not clearly sit within one of the four options presented in the consultation
paper, we have allocated it in the table according to the minimum age favoured
by the respondent. Thus, four responses favoured option B (raising the age and
abolishing the presumption of doli incapax) but supported the retention of the
existing minimum age of seven. We have taken the minimum age as the determining
feature and have therefore included these responses under option A (retaining
the status quo), rather than option B, but with suitable annotations to
make the position clear.
Option
|
No of responses in favour
|
|
A – retain minimum age of 7 and
presumption
[includes retain minimum age of 7, but
reduce presumption from 14 to 12]
[includes retain
minimum age of 7, but abolish
presumption]
[includes retain minimum age of 7, but
reverse presumption]
|
24
[1]
[1]
[4]
|
|
B – raise age and abolish
presumption
|
17
|
|
C – raise age and retain
presumption
[includes raise age, but reduce
presumption from 14 to 12]
[includes raise age, and
raise presumption from 14 to 18]
|
29
[1]
[1]
|
|
D – raise age and reverse
presumption
|
3
|
|
Raise age – no view expressed on
presumption
|
14
|
4.6 Any attempt to draw all but the most general
conclusions from these figures must be treated with some caution for a number of
reasons. Firstly, as we explained in the preceding paragraph, the figures
evaluate collective responses in the same way as those from individuals. So,
for instance, option B was favoured in the submissions made by the Law Society,
the Bar and the Judiciary. Those views count for only three in the table above,
but it could reasonably be assumed that each of those submissions reflects a
significant proportion of the membership of the respective
bodies.
4.7 Secondly, where we have been
provided with minutes of meetings we have attributed the views of individual
speakers to the appropriate category. Where, however, we have been provided
only with a summary of the conclusions reached at a particular meeting, with no
individual views recorded, we have reflected the concluded collective view in
the table. The consequence is that the views of an individual member of
District Fight Crime Committee A are accorded the same numerical weight as those
expressed collectively by District Fight Crime Committee
B.
4.8 Thirdly, there is inevitably a grey
area between the responses for options B and C. Four of those who favoured
option B did so on the understanding that the minimum age would be raised to 14,
and that the presumption of doli incapax would therefore become redundant
in any case. Similarly, two of those who favoured option C did so only on the
basis that the minimum age was set at a lower age than
14.
4.9 Those respondents who favoured a
higher minimum age proposed ages ranging from nine to 14 years. The responses
on this aspect of the issue are set out in the table below.
Age favoured
|
No of responses in
favour
|
|
7
|
24
|
|
9
|
1
|
|
10
|
27
|
|
11
|
1
|
|
12
|
7
|
|
13
|
1
|
|
14
|
20
|
|
Above 7, but not
specified
|
6
|
4.10 Taking the contents of these two tables
together (and bearing in mind the caveats we expressed earlier), we would
draw the following tentative conclusions:
| Ø | The
majority of responses support an increase in the minimum age of criminal
responsibility (63 in favour, to 24 against) |
| Ø | Of
those who wish to raise the minimum age and who have specified an age, ten years
has most support (27 responses), with 14 years the next most favoured age (20
responses) |
| Ø | Of
the 63 who wish to raise the minimum age, 29 wish to retain the presumption of
doli incapax between the revised age and 14. A further 19 who wish to
retain the current minimum age of 7 also wish to retain the presumption of
doli incapax in some form |
| Ø | Twenty-five
of the 73 who expressed a view on the presumption wish it abolished or
reversed |
| Ø | The
strongest support is for option C. |
Responses to the public
opinion survey
4.11 Between 28 April and 8 May 1999, the
Department of Applied Social Studies of the City University of Hong Kong
conducted a random sample telephone survey on the Commission’s behalf. A
total of 1,144 people aged 15 or above were interviewed to determine their views
on the age of criminal responsibility. The questionnaire and the full report of
the survey findings can be found at Annex
5.
4.12 The survey found that the majority of
those surveyed (89.4%) were in favour of raising the minimum age of criminal
responsibility to eight years or above. More than half of those surveyed
(52.1%) were in favour of raising the minimum age of criminal responsibility to
14 years. Of those surveyed, 18.1% were in favour of raising the minimum age to
18 years. As the minimum age of criminal responsibility proposed under the
survey ranges from eight to 23 years, the average minimum age proposed is 14.5
years.
4.13 In respect of the rebuttable
presumption of doli incapax, the survey findings revealed that a
substantial portion of those surveyed (28.4%) supported in principle the
retention of the rebuttable presumption. A total of 21.4% of those surveyed
were in favour of retaining the rebuttable presumption of doli incapax
for persons between a revised minimum age of criminal responsibility and 14
years.
4.14 The survey findings also revealed
that only a small proportion of those surveyed (6.9%) were in support of option
D (the creation of a rebuttable presumption of doli capax, where a
person is presumed capable of committing an offence).
| 4.15.1 | While
the responses to both the consultation paper and the public opinion survey
suggest that a majority of the community favour raising the minimum age of
criminal responsibility, we are conscious of the concerns which have been
expressed that any raising of the minimum age might lead to an increase in
juvenile crime, or to the exploitation of children by adult criminals. In the
next chapter, therefore, we examine the provisions which currently exist to deal
with unruly children. |