The age of criminal responsibility in Hong Kong - [2000] HKLRC 1 (May 2000) - Chapter 5 - Existing provisions for dealing with unruly children

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5.1 Both the findings of the public opinion survey and the responses to our consultation paper show a majority in favour of raising the minimum age of criminal responsibility. In 1973 a proposal to increase the minimum age from seven to ten was rejected by the Legislative Council because of fears that it would encourage exploitation of young children by adult criminals. In the words of one member of the Council, raising the age might “play into the hands of those who would use young children as safe pawns in furtherance of their own vile rackets”.^[79] Those concerns continue to be expressed by those opposed to a raising of the minimum age of criminal responsibility. In addition, they argue that a raising of the minimum age would remove a necessary protection for the community against the criminal activities of young children.

5.2 Before we consider whether or not the age of criminal responsibility should be raised in Hong Kong, we therefore set out in this chapter the mechanisms currently available for dealing with an unruly child, with a view to ascertaining if they would be adequate to deal with unruly children below the age of criminal responsibility should that age be raised from seven years to a higher age. This chapter also considers the ways in which increased exploitation of young children by adult criminals can be prevented following any raising of the minimum age of criminal responsibility. It concludes by way of contrast by examining alternative approaches adopted in two other jurisdictions for dealing with unruly children below the age of criminal responsibility.

5.3 Section 50 of the Police Force Ordinance (Cap 232) provides that a police officer may lawfully arrest any person whom “he reasonably believes will be charged with or whom he reasonably suspects of being guilty of”, inter alia, any offence for which the sentence is fixed by law, or for which a person may be sentenced to imprisonment. It follows that an arrest would only be lawful under this provision if the arresting officer reasonably believed that the child was seven years of age or above, and thus susceptible to criminal process.

5.4 By contrast, section 54(1) of Cap 232 has no such restriction. That provides that where a police officer finds any person “who acts in a suspicious manner” he may:

These powers can be exercised by a police officer in respect of any person, regardless of whether or not they are above the minimum age of criminal responsibility.

5.5 Section 54(2) of Cap 232 empowers a police officer to stop, detain and search any person “whom he reasonably suspects of having committed or of being about to commit or of intending to commit any offence.” The powers to stop and detain are the same as those under section 54(1), but the power of search extends to a search for “anything of value ... to the investigation of any offence that the person has committed, or is reasonably suspected of having committed or of being about to commit.” By tying the exercise of these powers to the fact of the offence, rather than the guilt of the perpetrator (as is the case with section 50), it could be argued that they may be invoked in respect of any person, regardless of whether or not that person has reached the minimum age of criminal responsibility.

5.6 At common law, there is a general power of arrest which may be exercised by the police or a member of the public where:

Again, this power is not limited by a reference to the capacity of the arrested person, but can be applied to any person regardless of age.

5.7 A further power of apprehension is to be found in section 101 of the Criminal Procedure Ordinance (Cap 221). Section 101(3) provides that “any person” to whom any property is offered to be sold, pawned, or delivered, and who has “reasonable ground” to suspect that “any arrestable offence has been or is about to be committed on or with respect to such property” may “apprehend” the person offering the property and take possession of it. Section 101(4) empowers any person to arrest anyone in possession of any property which the arrestor suspects “on reasonable grounds” may have been obtained by means of an arrestable offence. The wording of these provisions would not seem to preclude their application to a child below the minimum age of criminal responsibility.

5.8 The Police Superintendents’ Discretion Scheme (the PSDS) is frequently used as an alternative to criminal prosecution in respect of a young offender who is below the age of 18 years. Instead of subjecting the child to criminal prosecution, a formal caution or warning as to his conduct is given by a Police Superintendent to the child. The main purpose of the scheme is to bring home to young offenders the seriousness of their conduct without the necessity of bringing them into the criminal justice process.

5.9 The PSDS, however, has its limitations. Before it can be invoked, a number of conditions must be satisfied:

The nature and seriousness of the offence is understandably one of the most significant considerations. Most importantly for our purposes the PSDS does not apply to a person who is below the age of criminal responsibility. The basis of the PSDS is that it is an alternative to prosecution, and before a caution under the scheme can be administered the police officer must be satisfied, inter alia, that the evidence available is sufficient to support a prosecution. That condition cannot be satisfied where the individual concerned is below the age of criminal responsibility and therefore irrebuttably deemed to be doli incapax. Following any raising of the minimum age of criminal responsibility, the PSDS would therefore only apply to persons between that new age and 18.

5.10 The Protection of Children and Juveniles Ordinance (Cap 213) (the PCJO) is the principal legislation governing the care and protection of children^[81] and juveniles.^[82] It contains provisions enabling the specified authorities to deal with unruly children and juveniles aged below 18 years. The PCJO’s provisions would therefore continue to apply to children below the minimum age of criminal responsibility if this were raised to an age below 18.

5.11 Section 34(1) of the PCJO provides that a juvenile court may make one of a range of orders where it is satisfied that a child is in need of care or protection. Section 34(2) of the PCJO provides that:

“... a child or juvenile in need of care or protection means a child or juvenile -

(a) who has been or is being assaulted, ill-treated, neglected or sexually abused; or

(b) whose health, development or welfare has been or is being neglected or avoidably impaired; or

(c) whose health, development or welfare appears likely to be neglected or avoidably impaired; or

(d) who is beyond control, to the extent that harm may be caused to him or to others,

and who requires care or protection.”

5.12 An order may be made in respect of any person below the age of 18 years who is in need of care or protection. Section 34(1) of the PCJO specifically provides that an order may be made in respect of any person above or below the age of seven years, though where the person is above the age of seven years he must be brought before the court. Accordingly, a child below the minimum age of criminal responsibility may be made subject to a care or protection order.

5.13 An order for the care or protection of a child or juvenile may be made by a juvenile court on its own motion, or on the application of the Director of Social Welfare or of any person authorised by the Director or of any police officer.

5.14 Section 34(1) of the PCJO allows the court to make one of a range of orders. It may:

“(a) appoint the Director of Social Welfare to be the legal guardian of the child or juvenile; or

(b) commit him to the care of any person whether a relative or not, who is willing to undertake the care of him, or of any institution which is so willing; or

(c) order his parent or guardian to enter into recognizance to exercise proper care and guardianship; or

(d) without making such order or in addition to making an order under paragraph (b) or (c), make an order placing him for a specified period, not exceeding 3 years under the supervision of a person appointed for the purpose by the court.”

5.15 Where the court has vested the Director with the legal guardianship of the child or juvenile under section 34(1)(a) of the PCJO, the Director may, by virtue of section 34(5)(a) of the PCJO, make any order regarding the custody and control of the child or juvenile. This would include an order from the Director to remove and detain the child or juvenile in a place of refuge. One of the possible results of this arrangement is to dissociate the child or juvenile from the risk of becoming further involved in crime or undesirable influences.

5.16 The Director, as the legal guardian of the child or juvenile, is statutorily empowered by section 34(5)(b) of the PCJO to call upon any person who has custody to produce him. Failure without reasonable excuse to comply with this request constitutes an offence. The Director is also entitled to visit the residence of his ward at any reasonable time and to interview him to ensure that his general welfare has been well maintained.

5.17 When a child or juvenile is committed to the care or protection of any person or institution under section 34(1)(b) of the PCJO, section 34(4) provides that such a person or institution would have the like control over him as the parent; and that the child or juvenile would continue to be in their care or protection notwithstanding any claim by either his parent or any other person. This provision takes account of the fact that the parent or guardian may themselves present undesirable influence on the child. To further safeguard any unauthorised taking away of the child or juvenile from his legitimate protection under an order, sections 34(4)(i) and (ii) of the PCJO makes it an offence for any person knowingly to assist or induce the child or juvenile to escape from the person or institution in whose care he has been placed, or knowingly to harbour or conceal him, or to prevent him from returning to that person or institution.

5.18 In practice, the Police and the Social Welfare Department (SWD) are mainly responsible for drawing the court’s attention to the needs of children or juveniles at risk. As we have seen, the Police may stop and detain a child below the age of criminal responsibility under section 54 of the Police Force Ordinance (Cap. 232) for enquiry. Should the enquiry reveal that the child is at risk of becoming involved in crime, or that he is already involved in crime, the Police may either apply to the court direct for an order for care or protection pursuant to section 34(1) of the PCJO, or in appropriate cases refer the matter to the SWD for follow-up action.

5.19 While an order is in force, the SWD plays a supervisory role in advising, assisting and befriending the child in question. Depending on the circumstances, the SWD would also help the child to establish better communication and understanding with his parents, guardian or family members. Through regular visits to, or face-to-face contact with, the child the SWD provides counselling and guidance to help promote the general welfare of the child.

5.20 Where it can be proved that an adult has instigated criminal conduct by a child below the age of criminal responsibility, the existing criminal law would allow the adult to be prosecuted as a principal. It is unnecessary in law for a principal to be actually present when the offence was committed; nor is it necessary for the act constituting an offence to be perpetrated by the principal himself. Accordingly, if an offence is committed through an innocent agent (such as a child below the minimum age of criminal responsibility), the adult who directed its commission would be answerable as a principal even though the child could not himself be prosecuted for his criminal conduct. Archbold^[83] states that:

“If a child under the age of discretion , or any other person who is not criminally responsible (whether by reason of defect of understanding, ignorance of the facts, absence of mens rea or other cause) is incited to the commission of any crime, the inciter, though absent when the act constituting the crime is committed, is liable for the act of his agent, and is a principal.”

5.21 A range of vice offences relating to conduct involving children or juveniles are embodied in the Crimes Ordinance (Cap 200). These offences may provide some deterrence to adults seeking to involve children or juveniles in unlawful sexual activities or undertakings. They include the following provisions of the Crimes Ordinance :

The text of these provisions is at Annex 6 of this report.

5.22 In addition to section 34 referred to earlier, there are other provisions in the PCJO which provide protection for children or juveniles who are at risk of being exploited by adult criminals.

5.23 Under section 16 of the PCJO, a police officer of the rank of sergeant or above or any person authorised by the Director of Social Welfare may at any time enter any place to interrogate any persons there if there are reasons to believe that the place has been used as a lodging house for prostitutes, a brothel, or in connection with the commission of any offence prohibited under the PCJO. Where young children or missing youngsters are recovered in these raids, the police would in appropriate circumstances liaise with the SWD as to the action to be taken to safeguard the general welfare of these youngsters.

5.24 Section 34E of the PCJO provides that a police officer of the rank of station sergeant or above or any person authorised by the Director of Social Welfare may take a child or juvenile “who appears to be in need of care or protection” to a place of refuge or any other appropriate place. The child or juvenile may be detained there until he is brought before a juvenile court. An application to a juvenile court in respect of the child or juvenile, however, must be made within 48 hours of his being brought to a safe place.

5.25 Under section 44(1) of the PCJO, an officer authorised by the Director of Social Welfare may enter and search any place to ascertain if any child or juvenile is there who should be protected under any of the provisions of the PCJO. If such a child or juvenile is found, he can be brought to a safe place and an application under sections 34(1) or 34C (discharging or variation of orders under section 34(1)) of the PCJO must be made to a juvenile court within 48 hours.

5.26 Where a child or juvenile is in the custody, control or direction of a person and is exposed to any danger of seduction or prostitution, or to any moral or physical danger, the Director of Social Welfare may, under section 35 of the PCJO, make any order regarding the child’s or juvenile’s control and custody. That includes an order for removal to and detention in a place of refuge. Where such an order is made, an application under section 34(1) or 34C (discharging or variation of orders under section 34(1)) of the PJCO must be made within 48 hours of the child or juvenile being brought to a safe place.

(i) Police

5.27 The Police run a number of publicity and education schemes for children, designed to curb anti-social behaviour and foster a positive relationship with the Police. Under the School Liaison Officer Programme, School Liaison Officers (SLOs) are regularly sent to schools and youth organisations to disseminate the “fight-crime” message and to encourage the reporting of crime. SLOs are also tasked to identify at schools any undesirable influences that are adverse to the pupils’ behavioural or moral development. In addition, the “fight-crime” message is spread to children through TV and radio programmes such as “Junior Police Call”.

(ii) Social Welfare Department

5.28 The SWD is responsible for providing statutory care or protection to youngsters under 18 years of age who are at risk. In March 1998, there were 1,911 children under statutory care or protection.^[84]

5.29 The Child Protective Services Unit of the SWD was established to provide early intervention and intensive casework service for the protection of children who have been neglected, ill-treated or abused. The Child Protection Special Investigation Team frequently works with the Police to carry out joint investigation of cases involving child abuse. Where appropriate, a care or protection order would be applied for.

5.30 School social work service is yet another way through which students in general and those at risk of becoming involved in crime are provided with guidance and assistance by school social workers of both the SWD and other Non-Governmental Organisations (NGOs). In nearly all secondary schools, school social workers are available to assist students whose social and emotional development is at risk.

5.31 Outreaching social workers are deployed by both the SWD and other NGOs to provide counseling services and other necessary guidance and assistance to school dropouts, runaway children and members of street gangs. As at March 1998, there were 33 teams of outreaching social workers serving in priority areas, i.e. those with higher juvenile crime rates.^[85]

(iii) Education Department

5.32 As noted earlier, the Education Department (ED) works closely with the Police and SWD to protect school children from undesirable influences. Through the school social worker services and the School Liaison Officers scheme, students with emotional or behavioural problems or those who are at risk of becoming involved in crime are referred by the school authority to either the SWD or the Police for follow-up action.

5.33 The ED has issued guidelines to all primary and secondary schools to deal with students with general disciplinary problems. The guidelines encourage schools to initiate measures to prevent students from becoming problematic, and stipulate that any disciplinary measures must not be inconsistent with the human dignity of the child.

5.34 We conclude this chapter by examining the mechanisms adopted or proposed to be adopted in two other jurisdictions for dealing with unruly children below the minimum age of criminal responsibility. These mechanisms may provide a reference for Hong Kong in determining reforms of the present arrangements available for dealing with an unruly child below the age of criminal responsibility.

5.35 The English and Irish experiences are of particular relevance as the minimum ages of these jurisdictions (ten years in England and a proposed increase to 12 years in Ireland) are within the age range favoured by the majority of respondents in both the consultation exercise and the public opinion survey. The English and Irish reforms provide a model which Hong Kong may wish to consider following any raising of the minimum age of criminal responsibility here.

5.36 As noted earlier, the minimum age of criminal responsibility in England and Wales was raised from seven to 8 years of age by section 50 of the Children and Young Persons Act 1933, and raised again, to ten years of age, by section 16 of the Children and Young persons Act 1962. The common law rebuttable presumption of doli incapax continued to be applied in England and Wales, subject only to an increase in the statutory minimum age, until its recent abolition by section 34 of the Crime and Disorder Act 1998.

5.37 In addition to abolishing the rebuttable presumption of doli incapax, the 1998 Act introduces a range of measures to curb anti-social behaviour by children below the age of criminal responsibility. These measures are outlined below.

5.38 Sections 11 and 12 of the Act govern the making of a child safety order. Under section 11(1) of the Act, on the application of a local authority, a magistrates’ court may make a child safety order if it is satisfied that one or more of the conditions specified in section 11(3) are fulfilled in respect of a child under the age of 10. These conditions are:

“(a) that the child has committed an act which, if he had been aged 10 or over, would have constituted an offence;
(b) that a child safety order is necessary for the purpose of preventing the commission by the child of such an act as is mentioned in paragraph (a) above;
(c) that the child has contravened a ban imposed by a curfew notice; and
(d) that the child has acted in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself.”

5.39 Under a child safety order, a child below the minimum age of criminal responsibility would be placed under the supervision of a responsible officer (ie a social worker of a local authority social services department or a member of a youth offending team).^[86] The court may also require the child to comply with any such terms or conditions as the court considers necessary to keep him in proper control and to prevent any repetition of the kind of behaviour which led to the making of the order. A child safety order would generally last no more than three months, though in exceptional cases the order may last for up to 12 months.

5.40 A parenting order may be made by a court where a child safety order has been made; or where a person has been convicted of an offence under section 443 (failure to comply with school attendance order) or section 444 (failure to secure regular attendance at school of registered pupil) of the Education Act 1996. In these circumstances, the court may make a parenting order in respect of a person who is a parent or guardian of the child or young person,^[87] or the person convicted of an offence under section 443 or 444.^[88]

5.41 A parent^[89] under a parenting order is required by law to comply with all the conditions specified in the order for a period not exceeding 12 months; and to attend counselling or guidance sessions for a concurrent period not exceeding three months. These conditions are imposed for the purposes of preventing the repetition of the kind of behaviour which led to the child safety order as well as to prevent the commission of further offence under section 443 or 444 of the Education Act 1996.

5.42 Under section 14(1) of the Act, a local authority^[90] approved by the Secretary of State may give a notice banning children of specified ages (under 10) from appearing in a public place within a specified area. The prohibition should last no more than 90 days. The curfew would take effect during specified hours (between 9 pm and 6 am) at such times as the child is not under the effective control of a parent or a responsible person aged 18 or over. The notice may specify different hours in relation to children of different ages. Notice of the curfew must be given by posting this in a conspicuous place or places within the specified area; and in such other manner, if any, as appears to the local authority to be desirable for giving publicity to the notice.

5.43 Where a constable has reasonable cause to believe that a child is in contravention of the ban imposed by a curfew order, section 15 of the Act requires the constable to inform the local authority of the area in which the child has contravened the ban, and to remove the child to his place of residence.

5.44 Under section 16(3) of the Act, a police constable is empowered to remove from any public place any child or young person of compulsory school age who is absent from a school without lawful authority and to take him to designated premises or to the school from which he is absent.

5.45 On 30 September 1999, the Children Bill was published in Ireland with a view to replacing the Children Act of 1908. The major purpose of the Bill is to provide a new juvenile justice system which will apply to persons under the age of 18 years. One of the key proposals of the Bill is to raise the minimum age of criminal responsibility from seven to 12 years while preserving for Ireland the rebuttable presumption of doli incapax. Section 52 of the Bill provides as follows:

“(1) It shall be conclusively presumed that no child under the age of 12 years is capable of committing an offence.

(2) There is a rebuttable presumption that a child who is not less than 12 but under 14 years of age is incapable of committing an offence because the child did not have the capacity to know that the act or omission concerned was wrong.”

5.46 For the purposes of our study, the relevant provisions of the Bill can be conveniently divided into two main categories: the revised juvenile justice system under the Bill and the ways in which those below the proposed minimum age of criminal responsibility are to be dealt with under the new system.

5.47 In the press release dated 30 September 1999 issued to introduce the publication of the Bill, it was described as a blueprint for the development of a new juvenile justice system which acknowledged that creative solutions and options must be put in place to deal with young persons in trouble. Under this new juvenile justice system, the option of incarcerating young offenders of 12 years of age or above is preserved, but would be made the ultimate sanction when, in the words of the press release, “a whole range of what are essentially community-based measures have been exhausted”.

5.48 This new direction was affirmed by the Minister for Justice, Equality and Law Reform, Mr John O’ Donoghue, who in his speech delivered to introduce the Bill said:

“What will happen under the proposed new arrangements when a child of 12 years of age or over is apprehended on suspicion of having committed an offence? Typically, the details of the offence will be forwarded to the Garda National Juvenile Office for a decision on whether the child will be admitted to the Garda Diversion Programme. This already highly successful Programme, formally called the juvenile liaison officer scheme, is being placed on a statutory basis and extended by the incorporation into it of restorative justice measures, including the holding of a Conference. Every Conference will formulate an action plan for the child, which may, among other matters, include provision for the making of an apology or reparation to the victim. Other new features of the Garda Conference include the possibility of its being chaired by a person who is not a member of the Garda Síochána.

A unique feature of the Diversion Programme will be the introduction of restorative cautioning. This will be a type of mini-conference which may apply in cases where the full Garda convened Conference is not warranted. It means that where a formal caution is being administered to a child offender who has been admitted to the Diversion Programme, the victim may be present. This will provide an opportunity to confront the child with the consequences of his or her offending in the presence of the victim and for the child to be invited to offer an apology or make reparation to the victim.

Part 4 of the Bill, which deals with the Diversion Programme, is now underpinned by a principle that requires the Gardai to consider admission to the Programme when a child commits an offence. It would envisage an expansion of the Diversion Programme and even greater success for it when the new measures become fully operational.

As a matter of policy the intention is that as many children as possible who commit offences will be admitted to the Diversion Programme. The reality of course is that, no matter what diversionary provisions are in place, a certain number of young offenders will continue to appear in court; these would be the more persistent and serious offenders. The fact that they come before the courts is of less importance as to what options will be open to the courts when dealing with young offenders. The Bill has several important initiatives that will give the courts real options for dealing with every child, no matter what the child’s needs may be or what he or she has done. Two of these options can actually avoid the case against the child progressing to a finding. The first of these empowers the court to refer the child to the local health board where it considers that the child’s real problem is a need of care or protection; in other words the offending, usually something like petty larceny, may be a cry for help. The health board will investigate the child’s circumstances and report back to the court. The second option is where the court can direct the Probation and Welfare Service to convene a Family Conference in respect of the child; another manifestation of restorative justice.

Where the court does proceed to a finding and that finding is one of guilt it will have many new options at its disposal when deciding on how to deal with the child. These options are an essential feature of the Bill as they will allow effect to be given to the principle that detention for young offenders will be a last resort.”

5.49 Part 5 of the Bill focuses on ways to deal with unruly children below the revised age of criminal responsibility. Section 53 (1) of the Bill provides that where a member of the Garda Síochána^[91] has reasonable grounds for believing that a child under the age of 12 years is responsible for an act or omission which, but for the fact that the child is below 12 years and is thus by virtue of section 52 of the Bill incapable of committing an offence, would constitute an offence, the child should be taken to his or her parent or guardian.

5.50 When the child is taken to his or her parent or guardian but it is believed that the child is not receiving adequate care or protection, the health board for the area in which the child normally resides will be informed accordingly by the member of the Garda Síochána.

5.51 Where it is not practicable for the child to be taken to his or her parent or guardian, the child would be placed under the custody of the health board for the area in which the child normally resides.

5.52 Where the health board considers that the child brought before it is in need of care or protection, the health board would apply to court for a care or a supervision order. Section 53(5) further provides:

“Where, in relation to a child to whom sub-section (1) applies, the member of the Garda Síochána concerned has reasonable grounds for believing –

(a) that there is an immediate and serious risk to the health or welfare of the child, and

(b) that it would not be sufficient for his or her protection from that risk to await the making of an application for an emergency care order by a health board under section 13 of the Act of 1991,

the member may remove the child to safety, and Part III of the Act of 1991 shall then apply as if the removal were a removal under section 12 of that Act.”

5.53 Thus, when the Bill comes into operation, the health board will be empowered statutorily to provide care or protection for a child below 12 years of age whose conduct but for his or her age would amount to an offence.

5.54 One of the options to which the health board may resort for the care and protection of an unruly child above or below 12 years is to convene a family welfare conference for such a child and his or her family. These conferences would be appropriate for children who are at risk but who have not committed any offence, as well as for children who have been brought before the court for their criminal behaviour but whom the court considers may need care or protection. These conferences would lead to measures which could include the monitoring of the child’s attendance at school or at approved sports activities, the provision of special treatment for the child, the awarding of compensation to the victim of the child and the imposition of a curfew in respect of the child. Section 7(1) of the Bill provides:

“Where –

(a) a health board receives a direction from the Children Court under section 78 to convene a family welfare conference in respect of a child, or

(b) it appears to a health board that a child who resides or is found in its area may require special care or protection which the child is unlikely to receive unless a court makes an order in respect of him or her under Part IV A (inserted by this Act) of the act of 1991,

the health board shall appoint a person (in this Part referred to as a ‘coordinator’) to convene on its behalf a family welfare conference in respect of the child.”

5.55 A family welfare conference chaired by a coordinator may be attended by the child in question, his or her parents, guardian, guardian ad litem, relatives, officers of the board and any other persons whose presence would make a positive contribution to the conference. The conference will decide if the child in question is in need of special care or protection which the child is unlikely to receive unless an order is made under Part IV A of the Child Care Act 1991 (the 1991 Act). Where the conference arrives at the decision that the child is in such need, a recommendation would be made to the health board for an application of the order. However, where the conference decides that no such order is necessary, it would recommend to the health board such care or protection of the child as the conference considers necessary, including a recommendation that the health board should apply for a care order or a supervision order under the 1991 Act in respect of the child.

5.56 Upon receipt of any recommendation from the family welfare conference in respect of a child, the health board under section 13 (1) may:

“(a) apply for an order under part IV A (inserted by this Act) of the Act of 1991,
(b) apply for a care order or a supervision order under that Act, or
(c) provide any service or assistance for the child or his or her family as it considers appropriate, having regard to the recommendations of the conference.”

5.57 As mentioned above, one of the options open to a health board following a recommendation from a family welfare conference will be the lodging of an application to the court for a special care order. Part 3 of the Bill amends and extends the 1991 Act by inserting a new Part IVA. According to the Explanatory Memorandum of the Bill, the newly inserted section 23A under Part IVA of the 1991 Act would “provide the health boards with an additional range of powers so as to ensure that non-offending children who are out of control receive special care, education and treatment”.

5.58 Section 23A of the 1991 Act provides that where a health board is of the view, subsequent to the convening of a family welfare conference, that a child who resides or is found in its area is in need of special care or protection which he or she is unlikely to receive unless an order is made by a court, the board would apply to a court for a “special care order” or an “interim special care order”.

5.59 Where a court to which such an application is made is satisfied that the behaviour of the child has posed a real and substantial risk to his or her health, safety, development or welfare and that the child is in need of special care or protection, a special care order will be made in respect of the child thus placing the child under the care of the health board concerned for so long as the order remains in force. By this order, the health board is authorised under section 23B(2):

“... to provide appropriate care, education, and treatment for the child and, for that purpose, to place and detain the child in a special care unit provided by or on behalf of the health board pursuant to section 23K.”

5.60 The duration of a special care order will be specified in the order, which in general would last for a period which is not less than six months or more than 12 months. The court may extend the validity of the order on an application by the health board should the grounds for the making of the order continue to exist with respect to the child. On the other hand, should the circumstances leading to the making of the order no longer exist in respect of the child, the court may discharge the order on an application filed by the board.

5.61 An interim special care order would be applied for by a health board to the Children Court requiring a child named in the order to be placed and detained in a special care unit generally for a period not exceeding 28 days, and on application for a period exceeding 28 days. Such an order would be made in respect of a child when the Court under section 23C(1) of the 1991 Act is satisfied:

“(a) that either –

(i) a family welfare conference (within the meaning of the Children Act, 1999) is being arranged or is about to be convened in respect of a child, or

(ii) an application for a special care order in respect of a child has been or is about to be made by the board,

and

(b) that there is reasonable cause to believe that –

(i) the behaviour of the child is such that it poses a real and substantial risk to his or her health, safety, development or welfare, and

(ii) it is necessary in the interests of the child, pending determination of the application for a special care order, that he or she be placed and detained in a special care unit provided under section 23K...”

^[79] The Hon Mr Woo Pak-chuen, Hong Kong Hansard, Session72/73, 446 (14 February 1973).
^[80] See R v Howell [1982] QB 416.
^[81] Under section 2 of the Juvenile Offenders Ordinance (Cap 226), a child is defined as a person who is, in the opinion of the court having cognizance of any case in relation to such person, under the age of 14 years.
^[82] Under section 2 of the Protection of Children and Juveniles Ordinance (Cap 213), a juvenile is defined as a person who is, in the opinion of a court or a person exercising any power under this Ordinance, 14 years of age or upwards and under the age of 18 years.
^[83] Archbold 1998, para. 18-7, at 1439.
^[84] 1997-1998 Departmental Report of the Social Welfare Department (SWD Report), at 45.
^[85] Cited above, the SWD Report, at 62.
^[86] Under section 39(5) of the Act, a youth offending team shall include at least one of the following, namely: (a) a probation officer; (b) a social worker of a local authority social services department; (c) a police officer; (d) a person nominated by a health authority any part of whose area lies within the local authority’s area; (e) a person nominated by the chief education officer appointed by the local authority under section 532 of the Education Act 1996.
^[87] Under section 117 of the Act, a child is defined as a person under the age of 14 and a young person is defined as a person who has attained the age of 14 and is under the age of 18.
^[88] Under section 443 of the Education Act, a parent would be charged if he/she fails to comply with the requirement of a school attendance order. Under section 444 of the Education Act, if a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.
^[89] Under section 576 of the Education Act, a “parent” includes any person who is not a parent of a child or young person but who has parental responsibility for him, or who has care of him.
^[90] Under section 14(8) of the Act, a local authority means (a) in relation to England, the council of a district or London borough, the Common Council of the City of London, the Council of the Isle of Wight and the Council of the Isles of Scilly (b) in relation to Wales, the council of a county or county borough.
^[91] The Garda Síochána is Ireland’s National Police Service.

l	the offender is under 18 years of age at the time when the caution is administered;
l	the offender has no previous criminal record;
l	the evidence available is sufficient to support a prosecution;
l	the offender voluntarily and unequivocally admits the offence; and
l	the offender and his parents or guardian have agreed to the caution.

l	section 123 – intercourse with a girl under 13
l	section 124 – intercourse with a girl under 16
l	section 130 – control over persons for purpose of unlawful sexual intercourse or prostitution
l	section 131 – causing prostitution
l	section 134 – detention for intercourse or in vice establishment
l	section 135 – causing or encouraging prostitution of, intercourse with, or indecent assault on, a girl or boy under 16
l	section 137 – living on the earnings of prostitution of others
l	section 139 – keeping a vice establishment
l	section 140 – permitting a girl or boy under 13 to resort to or be on premises or vessel for intercourse
l	section 141 – permitting a young person to resort to or be on premises or vessel for intercourse, prostitution, buggery, or homosexual act
l	section 143 – letting premises for use as a vice establishment
l	section 144 – tenant etc. permitting premises or vessel to be kept as a vice establishment
l	section 145 – tenant etc. permitting premises or vessel to be used for prostitution
l	section 146 – indecent conduct towards a child under 16.

Hong Kong Law Reform Commission

Chapter 5 - Existing provisions for dealing with unruly children

Introduction

Measures currently available for dealing with unruly children in Hong Kong

The power of arrest and the power to stop and detain

The Police Superintendents’ Discretion Scheme

The Protection of Children and Juveniles Ordinance

Measures to prevent exploitation of young children by adult criminals in Hong Kong

Prosecuting the adult criminal as a principal

Specific offences aimed at protecting children and juveniles

Other provisions of the PCJO

Education and publicity

Measures for dealing with unruly children below the age of criminal responsibility in England and Wales and Ireland

England and Wales - The Crime and Disorder Act 1998

Child safety orders

Parenting orders

Local child curfew schemes

Removal of truants to designated premises etc

Ireland - The Children Bill 1999