The age of criminal responsibility in Hong Kong - [2000] HKLRC 1 (May 2000) - Chapter 6

6.2 In chapter 3 we outlined the principal arguments for and against reform. These included not only points which we had identified in our earlier consultation paper, but also those made by respondents to that paper. We note the views of the Hong Kong Police Force, the Security Bureau and the Immigration Department that the existing minimum age should be retained. Those bodies generally believe that the present system governing the age of criminal responsibility in Hong Kong has not only proved to be a success in tackling crimes committed by young people, but is also capable of striking a balance between the need to bring young offenders to justice and the need to facilitate their rehabilitation. In our view, however, the case for raising the minimum age outweighs that for retaining the status quo.

6.3 Firstly, we are persuaded that it cannot be right to hold a child as young as seven criminally responsible for his actions. While we understand that scientific evidence appears to be inconclusive, the weight of opinion seems to be that a seven-year old child cannot fully appreciate the criminal nature of his actions. Indeed, it could be said that a young child’s involvement in crime makes him more of a “victim” than a perpetrator of the offences alleged.

6.4 Secondly, there is no evidence that imposing criminal responsibility at such a young age is necessary to protect the community from any significant level of criminal activity by young children. The figures at Annex 4 show that virtually no children below the age of ten are arrested for having committed a serious crime. Even where they are, and there is a subsequent prosecution, only a handful of young children are found guilty.^[92]

6.5 Thirdly, we do not believe that the most effective or humane way to correct errant behaviour by a young child is to subject him to full panoply of the criminal justice system. Even in those rare cases where a serious offence is committed, an approach which is rehabilitative rather than punitive would seem to us to offer the best chance of long-term success where a young child is concerned.

6.6 The results of the consultation exercise reinforce us in our views. It is clear from both the responses to our consultation paper and the public opinion survey that a majority of those who expressed a view were in favour of raising the minimum age. We consider of particular significance the views of organisations with an interest in young persons and their welfare. Those who responded to our consultation paper included the Hong Kong Council of Social Service, the Boys’ and Girls’ Clubs Association of Hong Kong, the Hong Kong Social Workers’ General Union, the Hong Kong Girl Guides Association, the Hong Kong Committee on Children’s Rights, the Hong Kong Young Women’s Christian Association, the Hong Kong Federation of Youth Groups and the Hong Kong Family Welfare Society. All of these organisations were in general in favour of raising the minimum age of criminal responsibility, although they hold different views on what should be done thereafter.

6.7 A similar breadth of support for change was to be found within the legal profession. Those who argued in favour of a raising of the minimum age of criminal responsibility included the Law Society of Hong Kong, the Hong Kong Bar Association, the Judiciary Administrators’ Office, the Director of Public Prosecutions, the Law Officer of the Civil Division of the Department of Justice, the Duty Lawyer Service, the Hong Kong Family Law Association and the Hong Kong Young Legal Professionals Association.

6.8 We find further support for a raising of the minimum age in the fact that the international trend favours such an approach. The comments of the United Nations Human Rights Committee in November 1999 to which we referred in chapter 2 emphasise that Hong Kong’s law in this regard is out of step with internationally accepted standards.

6.9 Taking all these considerations into account, we have concluded that the minimum age of criminal responsibility should be raised, and we so recommend.

What should be the new minimum age?

6.10 We pointed out in chapter 2 that while a number of international conventions referred to fixing a minimum age at which a child could be made criminally responsible for his actions, none of these stipulated a specific age which should be adopted. From the comments made by the Human Rights Committee of the United Nations, it is however clear that seven is considered unacceptably low. Beyond that, little guidance can be gleaned from the UN conventions as to the appropriate minimum age. The Commentary to Article 4 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) states:

“The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially antisocial behaviour. If the age of criminal responsibility is fixed too low or if there is no lower age limit at all, the notion of criminal responsibility would become meaningless. In general, there is a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities (such as marital status, civil majority, etc).”

6.11 Those who responded to our consultation paper and who favoured raising the minimum age suggested ages which ranged from 9 to 14. The age of ten was suggested by more respondents than any other age, with 14 receiving the next largest support. These views contrast markedly with the results of the opinion survey conducted by City University, which found that more than half those surveyed suggested their preferred minimum age to be 14 or above. The most popular minimum age was 18, with 16 the next most popular.

6.12 Somewhat different results were found by a survey carried out by the Hong Kong Federation of Youth Groups in September 1998.^[93] Almost 60% of respondents preferred the minimum age to remain at seven. Of the 33% in favour of a higher age, roughly 68% suggested the age of criminal responsibility be raised to between 10 and 13, but no clear consensus emerged as to the most popular age.

6.13 The figures at Annex 4 for the number of persons arrested between the ages of seven and 14 suggest that there is a marked increase in criminal activity from the age of ten. Arrests for the offence of shop theft, for instance, in some years virtually double between the ages of nine and ten, and again between ten and 11. Arrests of children below ten are rare for serious assaults, but increase significantly from ten onwards.

6.14 We are conscious that it is impossible to be scientifically precise as to the proper age at which criminal responsibility should begin. Nevertheless, we believe that a sensible case can be made for adopting the age of ten as the appropriate level. In so recommending, we take cognizance of the following points:

Such statistics as are available to us suggest that there is no significant level of criminal activity among children below the age of ten. Equally, there appears to be a marked increase in criminal activity from the age of ten.

The age of ten (though at the low end of the scale) would not be out of step with international standards. The table at Annex 2 shows that the age of ten is adopted, inter alia, by England and Wales, Malaysia and New Zealand. It would be higher than the age adopted in jurisdictions which include Northern Ireland, Scotland, Singapore, South Africa and Switzerland.

A significant number of those who responded to our consultation paper were in favour of the age of ten. These included the Hong Kong Federation of Youth Groups, the Hong Kong Young Women’s Christian Association, the Hong Kong Council of Social Service, the Boys & Girls Clubs Association, the Hong Kong Psychological Society, the Hong Kong Social Workers’ General Union, the Department of Health, the Director of Public Prosecutions and the Judiciary.

We believe that we should proceed cautiously in this matter. It is difficult to predict what effect a raising of the minimum age will have on the conduct of young children. Rather than raise the age too radically, we prefer a cautious approach initially which will allow the Administration to evaluate the situation after the increase and, if appropriate, take steps to raise the age further.

6.15 We find support for our view in the judgment of the European Court of Human Rights in V v the United Kingdom.^[94] The court observed that:

“... at the present time, there is not yet a commonly accepted minimum age for the imposition of criminal responsibility in Europe. While most of the Contracting States have adopted an age-limit which is higher than that in force in England and Wales, other States, such as Cyprus, Ireland, Liechtenstein and Switzerland, attribute criminal responsibility from a younger age. Moreover, no clear tendency can be ascertained from examination of the relevant international texts and instruments .... Rule 4 of the Beijing Rules which, although not legally binding, might provide some indication of the existence of an international consensus, does not specify the age at which criminal responsibility should be fixed but merely invites States not to fix it too low, and Article 40(3)(a) of the UN Convention requires States Parties to establish a minimum age below which children shall be presumed not to have the capacity to infringe the criminal law, but contains no provision as to what that age should be.

The Court does not consider that there is at this stage any clear common standard amongst the member States of the Council of Europe as to the minimum age of criminal responsibility. Even if England and Wales is among the few European jurisdictions to retain a low age of criminal responsibility, the age of ten cannot be said to be so young as to differ disproportionately from the age-limit followed by other European States.”^[95]

6.16 In his concurring judgment, Lord Reed said:

“... although the minimum age in England and Wales is towards the lower end of the range, it cannot be said to be out of line with any prevailing standard. Moreover, the purpose of attributing criminal responsibility to a child of a given age is not to cause that child suffering or humiliation, but to reflect a consensus in the society in question as to the appropriate age at which a child is sufficiently mature to be held criminally responsible for his or her conduct. Since perceptions of childhood reflect social, cultural and historical circumstances, and are subject to change over time, it is unsurprising that different States should have different ages of responsibility.”^[96]

6.17 Legitimate concerns have been expressed that a raising of the age of criminal responsibility may lead to an upsurge in youth crime, or increased exploitation of under-age children by adult criminals. We set out in the previous chapter the existing provisions for dealing with unruly children below the minimum age of criminal responsibility, and looked at measures available to prevent adult exploitation of the young. We do not pretend that these are without difficulties. For instance, while it may be theoretically possible to prosecute the adult criminal as a principal, such a course will often present considerable evidentiary problems. Similarly, while the provisions of the Protection of Children and Juveniles Ordinance (Cap 213) (the PCJO) allow a care or protection order to be made in respect of an under-age child in certain circumstances, it is doubtful if they would be of any avail where the child’s conduct is an isolated initial instance of wrongdoing. Section 34(2) of the PCJO refers to a child “who is beyond control” or “whose health, development or welfare appears likely to be neglected or avoidably impaired”, but such criteria would seem to apply to a child who has already embarked on a course of anti-social conduct, rather than one who is about to start. We note in contrast that section 11 of the Crime and Disorder Act 1998 in England and Wales allows a child safety order to be made where a child has committed an act which “would have constituted an offence” if he had been over the age of criminal responsibility. That provision would, it seems to us, allow an order to be made in respect of a single instance of wrongdoing.

6.18 Despite our reservations that there appear to be aspects of the existing juvenile justice provisions which require re-examination, we do not think that raising the age of criminal responsibility to ten presents any significant threat to law and order in the community. As we have already pointed out, the existing number of arrests of children below ten is small and there is no reason to suppose that raising the age of criminal responsibility will lead to any marked increase. In answer to concerns that there may be an increase in the level of exploitation of young children by adult criminals, we would observe that it must be wrong in principle to hold a child criminally responsible simply because he may otherwise be exploited by adults. The proper course must surely be to devise ways to curb or minimise exploitation, rather than penalising the child. Furthermore, adults will make use of children no matter what age is chosen as the minimum and the level to which young children are exploited will depend more on the reliability of the children in carrying out the particular purposes than on whether the children are criminally responsible.

6.19 In all the circumstances, we therefore recommend that the minimum age of criminal responsibility be increased to ten years of age.

Should the rebuttable presumption of doli incapax be retained between the new age of criminal responsibility and 14?

6.20 Chapter 3 examined the arguments for and against retaining the rebuttable presumption of doli incapax. In Chapter 4, we set out the results of the consultation exercise on this issue. Of the 73 respondents to our consultation paper who expressed a view on the presumption, 18 wished to see it abolished and a further seven argued that it should be reversed. Nineteen of those who wished to retain the current minimum age of criminal responsibility also wished to retain the rebuttable presumption in some form, while a further 29 who wished to raise the age wished to retain the presumption. The tentative conclusion to be drawn is that a majority of respondents preferred to retain the existing rebuttable presumption.

6.21 The findings of the City University survey appear less clear-cut, largely because 52.1% of those polled wanted the minimum age raised above the age of 14, which would effectively amount to the abolition of the rebuttable presumption. Around 21% of those polled thought that the rebuttable presumption should be applied to those falling between a raised minimum age and 14, with a total of 7.8% opposed to such a course. Taking out of the equation those who favoured raising the minimum age above the age of 14, some 63% of respondents favoured applying the rebuttable presumption between the new minimum age and 14. Again, a tentative conclusion would appear to be that, if the minimum age is raised to ten years as we propose, a majority of the community would wish to retain the rebuttable presumption for children between the ages of ten and 14.

6.22 We have set out in Chapter 3 Laws J’s trenchant criticisms of the rebuttable presumption in the case of C (a Minor) v DPP.^[97] We accept that the presumption is imperfect and that it is not entirely logical. We note also that it has been abolished in England and Wales by section 34 of the Crime and Disorder Act 1998, and that the rebuttable presumption has never existed in a number of other jurisdictions. Nevertheless, we have concluded that there are sound reasons for retaining the rebuttable presumption at least in the short term. In particular, we believe it acts (in Lord Lowry’s words in C (a Minor) v DPP) as a “benevolent safeguard” to ensure that only a child who is fully aware that what he has done is seriously wrong will be subject to criminal process. To quote Lord Lowry more fully:

“We start with a benevolent presumption of doli incapax, the purpose of which was to protect children between 7 (now by statute 10) and 14 years from the full rigour of the criminal law. The fact that this presumption was rebuttable has led the courts to recognise that the older the child ... and the more obviously heinous the offence, the easier it is to rebut the presumption. Proof of mental normality has in practice (understandably but perhaps not always logically) been largely accepted as proof that the child can distinguish right from wrong and form a criminal intent. The presumption is not, and never has been, completely logical; it provides a benevolent safeguard which evidence can remove.”

6.23 We have previously pointed out that it is not possible to determine with scientific certainty whether seven, ten, 12 or some other age is the specific point at which a child’s mental capacity is adequate to determine right from wrong. In the absence of such scientific certainty, we think it reasonable to allow some flexibility through the operation of the rebuttable presumption to ensure that children who are insufficiently mature are not subject to criminal process.

6.24 We argued earlier in relation to determining the appropriate age at which to apply criminal responsibility that we should adopt a cautious approach. We think that that applies with equal force when considering whether or not to abolish the rebuttable presumption. Any change in this area of the law represents a significant social change which should not in our view be undertaken lightly. It should be noted that while the minimum age of criminal responsibility was raised from seven to ten in England and Wales in 1933, the rebuttable presumption was not abolished until 65 years later by the Crime and Disorder Act 1998. Similarly, we note that while the Children Bill 1999 in Ireland proposes to raise the age of criminal responsibility from seven to 12, it specifically retains the rebuttable presumption in respect of children between 12 and 14 years of age.

6.25 We accordingly recommend that the rebuttable presumption of doli incapax should continue to apply to children of ten and below 14 years of age.

Other recommendations for reform

6.26 Our terms of reference were focused on the narrow question of determining what changes, if any, should be made to the minimum age of criminal responsibility and the associated presumption of doli incapax. They did not extend to a review of the juvenile justice system as a whole. As part of our study, however, we felt it necessary to examine the existing measures which were available to deal with unruly children below the age of criminal responsibility, and this forms the content of chapter 5. We have concluded that the existing mechanisms could with advantage be significantly improved, and we believe that the Administration should undertake a comprehensive review of juvenile justice.

6.27 We have already referred at paragraph 6.17 above to the shortcomings of section 34(2) of the Protection of Children and Juveniles Ordinance (Cap 213) (the PCJO), and the difficulty which may be caused by the standard of “beyond control” which the section requires. Section 34(2)(d) applies to cases where a child “is beyond control, to the extent that harm may be caused to him or others, and who requires care or protection.” This definition may represent too high a threshold. For example, where a child has not committed any anti-social act but frequents a location favoured by triad members (thereby exposing himself to undesirable influences), it is doubtful that the behaviour of the child could be argued to be “beyond control” in the particular sense of the term used in the PCJO. For this reason, we would suggest either that the test of “beyond control” be redefined and expanded to take into account delinquent behaviour which falls short of the current definition, or alternatively, that new intermediate measures be created, ranging somewhere between voluntary counselling from trained social workers and formal and mandatory care or protection orders.

6.28 We believe that a new “guidance order” might provide one such mechanism. As the term implies, a “guidance order” would be a court order made for the specific purpose of providing guidance to a child who has not committed any anti-social acts, but who is at risk of becoming involved in crime or criminal association. Under such an order, the relationship between the social worker and the child in question would be warm and informal. The intention would be that such an approach would help bring into line those children who are not eligible for care or protection orders, but who might otherwise go astray.

Hong Kong Law Reform Commission

Chapter 6 - Our conclusions and recommendations

Should the existing minimum age of criminal responsibility be raised?

What should be the new minimum age?

Should the rebuttable presumption of doli incapax be retained between the new age of criminal responsibility and 14?

Other recommendations for reform