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

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1.1 In Hong Kong, the minimum age of criminal responsibility is statute based. Section 3 of the Juvenile Offenders Ordinance (Cap. 226) (the JOO) provides that: “It shall be conclusively presumed that no child under the age of 7 can be guilty of an offence.” This creates in Hong Kong a conclusive or irrebuttable presumption that a child is doli incapax (incapable of committing a crime). Under the law as it stands, any person under the age of seven will be fully and legally excused from criminal responsibility, even if there is cogent evidence which unequivocally points to the child’s commission of a crime.

1.2 In respect of a child aged between seven and 14 years, Hong Kong follows the common law rule established in medieval England that a rebuttable presumption of doli incapax will apply. The presumption can be rebutted by the prosecution on proof beyond reasonable doubt that, at the time of the offence, the child was well aware that his or her act was seriously wrong, and not merely naughty or mischievous. When this presumption is rebutted or removed, full criminal responsibility will be imposed on the child who may then be charged, prosecuted and convicted for any offence allegedly committed.

1.3 Under section 2 of the JOO, 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”. The definition is significant as it distinguishes a “child” from a “young person”^[2] or an adult, both of whom are fully responsible for the crime committed, although the sentence imposed on a young person might be different from that applied to an adult.^[3]

1.4 While seven years has been fixed by statute as the minimum age of criminal responsibility in Hong Kong since 1933, that age finds its roots in medieval England. To understand the existing law it is therefore necessary to explain not only the law which governs the presumptions of doli incapax, but also the historical background and conditions upon which the various age-lines were first established in England and Wales.

1.5 In its formative years, the common law provided no definite point as the age at which a child would be held criminally responsible. Early records show that different treatment was meted out to children below the age of seven years, according to whether or not they were considered able to distinguish right from wrong. Thus, up to the seventeenth century in England, it was almost impossible to tell with certainty the age at which a person would be held answerable for a crime committed. It was left to the individual judge in each case to decide whether the child brought before the court was old enough to be criminally sanctioned. This approach stemmed from a recognition of the severity of the punishments imposed at that time, which were based on vengeance. In an age where a person would be hanged for stealing a sheep, it was considered necessary to protect young children from the full rigours of harsh adult justice.

1.6 In an article entitled “Criminal Responsibility of Infants”,^[4] the author states that during Anglo-Saxon times, a child could not be found guilty of a crime until he attained the age of 12. By the time of Edward I, the law had become more severe and the age of criminal responsibility was reduced to seven. This marked the beginning of an era where, until that age was attained, no evidence that the child knew that his conduct was wrong would avail. This was based upon the notion that a child within that age group should not be punished as he or she had yet to acquire adequate discretion or understanding of the crime. Photis points out, however, that although the Year Books 30, 31 Ed. 1 recorded that a child of tender years was incapable of committing a crime, the Register of Writs refers to a precedent of a pardon to a child under seven, and so implies that children under that age were still on occasions prosecuted. The controversy as to the age at which criminal responsibility should commence continued until the age of seven was confirmed by Hale, who further confirmed the common law rule that children between the ages of seven and 14 were presumed to be doli incapax, though this presumption was capable of being rebutted by evidence to the contrary.^[5]

1.7 It is perhaps worth noting at this point that the antiquity of the origin of the common law rule setting the minimum age of criminal responsibility at seven years of age does not of itself imply that the rule is no longer valid in modern times. Many common law rules of long standing are still applied today and have survived the test of time. The issue is whether the circumstances and conditions which prevailed in medieval England and in the light of which the age of seven was set are still of relevance to present day Hong Kong. In addition, there is a need to weigh the evidence of modern findings as to the age at which a child can reasonably be expected to differentiate right from wrong. A more systematic and scientific approach to establishing the age at which criminal responsibility should commence would thus seem justified.

1.8 The common law rule as to the minimum age of criminal responsibility has long been abandoned in England and Wales. The minimum age in England and Wales was raised from seven to eight years of age under section 50 of the Children and Young Persons Act 1933. It was further raised to ten years of age by section 16 of the Children and Young Persons Act 1963. The common law rule of a rebuttable presumption that children between seven and 14 were doli incapax continued to apply in England and Wales, subject only to an increase in the statutory minimum age, until recently abolished by section 34 of the Crime and Disorder Act 1998. Section 34 provides that:

“The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished.”

1.9 As noted above, the minimum age of criminal responsibility in Hong Kong is statute-based, albeit the age fixed is identical to that laid down in the medieval English common law rule. Section 3 of the JOO provides that: “It shall be conclusively presumed that no child under the age of 7 years can be guilty of an offence.” Thus, under this provision, a conclusive or irrebuttable presumption arises that the child is doli incapax (incapable of committing a crime) on proof or admission of the basic fact that he is under seven years of age. No evidence is admissible to rebut this presumption. It follows that if a child was under seven years old at the time of the offence, the child is doli incapax and cannot be found guilty of a crime even though “there may be the clearest evidence that the child caused an actus reus with mens rea”.^[6]

1.10 As mentioned earlier, the minimum age of criminal responsibility in England and Wales has twice been adjusted upwards, with the present minimum age now set at ten years. Hong Kong has made similar attempts at reform but without success. In 1973, an attempt was made to raise the minimum age of criminal responsibility from seven to ten through the Juvenile Offenders (Amendment) Bill 1973. The Bill foundered as it was thought that children below the age of ten were old enough to be manipulated by undesirable characters for unlawful purposes. There has been pressure for change since, but Hong Kong’s minimum age of criminal responsibility remains seven years of age.

1.11 In Hong Kong, for a child who has attained seven but is under 14 years of age, the presumption of doli incapax continues to apply but can be rebutted by the prosecution on proof “beyond reasonable doubt not only that he caused an actus reus with mens rea but also he knew that the particular act was not merely naughty or mischievous, but ‘seriously wrong’.”^[7] Under this common law rule, the rebuttable presumption of doli incapax operates on proof or admission of the basic fact that the child was between the ages of seven and 14. The child must be presumed to be doli incapax in the absence of evidence that at the time of the offence he knew the particular act constituting the offence was seriously wrong. Under this rebuttable presumption, it follows that once it is proved beyond reasonable doubt that the child knew the act to be seriously wrong, in the sense that he was not merely naughty or mischievous, the presumption of doli incapax will be rebutted. The child will thus become doli capax (capable of committing a crime) and will be subject to prosecution and conviction accordingly. The principle governing this area of the law was explained in R v Gorrie as follows:

“In the case of persons under fourteen years of age, the law presumed that they were not criminally responsible; they were not supposed to have that discretion which would make them criminally responsible. But in any particular case, if the prosecution could show that although the accused was under fourteen the act was done with what was called mischievous discretion, then they could rebut the presumption that the child was not responsible. Therefore, the jury should first of all consider whether it would be their duty to find him guilty if he were over fourteen, and then consider whether mischievous discretion deprived him of the shelter which he would otherwise have. If it was an assault and not an accident - if, however little he might have meant to do him any harm, he did in fact intentionally stab the other boy with the penknife and thereby caused his death, that was manslaughter .... Then they came to the second point. The boy was under fourteen, and the law presumed that he was not responsible criminally; and if the prosecution sought to show that he was responsible although under fourteen, they must give them very clear and complete evidence of what was called mischievous discretion: that meant that they must satisfy the jury that when the boy did this he knew that he was doing what was wrong - not merely what was wrong, but what was gravely wrong, seriously wrong. It was for the jury to say whether there was any evidence that this boy when, as was alleged, he ‘jabbed’ the other with the knife in this horseplay, had any consciousness that he was doing that which was gravely wrong.”^[8]

1.12 The effect of the principle stated in Gorrie is that, in order to secure the conviction of a child aged between the ages of seven and 14 years, the prosecution must first prove beyond reasonable doubt that the child committed the offence with the necessary mens rea. It must also show that the child should be criminally responsible for the alleged offence by proof beyond reasonable doubt that the child had in him or her a mischievous discretion, in the sense that, at the time of the alleged offence, the child knew that the act constituting the offence was gravely or seriously wrong. It is therefore insufficient for the prosecution to prove that the offence was committed by the child. The prosecution has to go a step further to prove that the child knew his conduct was seriously wrong at the material time. Under this principle, the “mere proof of the doing of the act charged, however horrifying or obviously wrong the act might have been, cannot establish the requisite guilty knowledge and rebut the presumption.”^[9]

1.13 The requirement that the child must be aware that his conduct was “seriously wrong” was further examined in J. M. (A Minor) v Runeckles where it was held that the requisite knowledge went beyond being a realisation that the conduct was merely naughty or mischievous. Goff L.J. in this case observed that:

“the prosecution has to prove that the child knew that what he or she was doing was seriously wrong. The point is that it is not enough that the child realized that what he or she was doing was naughty or mischievous. It must go beyond childish things of that kind. That, as I understand it, is the real point underlying the presumption that a child under the age of 14 has not yet reached the age of discretion, because children under that age may think what they are doing is nothing more than mischievous. It would not be right for a child under that age to be convicted of a crime, even if they had committed the relevant actus reas and had the relevant mens rea specified in the statute, unless they appreciated that what they were doing was seriously wrong and so went beyond childish activity of that kind.”^[10]

1.14 In the same case, a distinction was drawn between conduct that was seriously wrong and conduct that was morally wrong. Mann J held that:

“I regard an act which a child knew to be morally wrong as being but one type of those acts which a child can appreciate to be seriously wrong. I think it is unnecessary to show that the child appreciated that his or her action was morally wrong. It is sufficient that the child appreciated the action was seriously wrong. A court has to look for something beyond mere naughtiness or childish mischief.”^[11]

1.15 Despite the fact that the test laid down for rebutting the presumption of doli incapax has been well established, there is as yet no absolute formula for satisfying all the requirements set out in the test. The reason is that in rebutting the presumption, the court would consider the background of the particular child, as well as the unique features of the case, before arriving at its decision as to the knowledge of the child at the time in question. The actual age of the child, though an important factor to be taken into consideration, is not conclusive. However, in most cases, matters such as the circumstances of the case, things said or done by the child both before and after the act, the age of the child, and the individual particulars of the child are matters relevant to the court’s consideration.

1.16 In B v R,^[12] Lord Chief Justice Parker observed that evidence which was clear and showed beyond all possibility of doubt that the child knew the act to be a serious wrong was relevant to rebut the presumption. The evidence must be “strong and pregnant”. Indeed, the lower the age of the child, the stronger would be the evidence required for the successful rebuttal of the presumption. Lord Chief Justice Parker in the same case further observed that the family background of a child would also be a consideration. The fact that a child was raised in a respectable family, was properly brought up and was generally well behaved were all important factors to be considered. Lord Chief Justice Parker said:

“There is no doubt in the case of a child between the age of eight^[13] and fourteen that there is a presumption that the child is not in possession of that knowledge of which mens rea is an essential ingredient, and it is to be observed that, the lower the child is in the scale between eight and fourteen, the stronger the evidence necessary to rebut that presumption, because in the case of a child under eight it is conclusively presumed he is incapable of committing crime. It has often been put in this way, that in order to rebut the presumption ‘guilty knowledge must be proved and the evidence to that effect must be clear and beyond all possibility of doubt,’ or, as it has also been put, ‘there must be strong and pregnant evidence that he understood what he did....’ Here is a child who has had apparently every opportunity in life, coming from a respectable family and properly brought up, who, one would think, would know in the ordinary sense the difference between good and evil and what he should do and what he should not do. Here, he is taking part, first, in the testing of the house at the back and front, climbing through the window, and on leaving taking the key and returning later with a gang, completely wrecking the house and taking certain articles. For my part, I cannot say there was no evidence on which the magistrates could come to the conclusion that this boy had guilty knowledge.”

1.17 Evidence of the circumstances of the case and the child’s conduct, statement or demeanour associated with the offence is admissible to prove knowledge of a serious wrong. In R v Li Wai-lun, it was held that the answers provided by the child appellant to questions put to him by the police would be a valid consideration upon which knowledge of a serious wrong could be inferred as the child was considered by the court to be “careful enough to avoid giving any incriminating answers”.^[14] In A v DPP,^[15] it was held that the circumstances in which the victim of an indecent assault charge was taken to a remote location and threatened were sufficient evidence to rebut the presumption that the 12-year-old appellant was doli incapax. However, if the conduct of a child is such that it is uncertain or equivocal to conclude that he had in him the knowledge of a serious wrong, this would be insufficient to rebut the presumption. Thus, in A v DPP,^[16] it was held that the fact that the 11- year-old appellant was seen running away from the scene of crime was not:

“... by itself sufficient to enable the justices to find that the presumption in law had been rebutted. A naughty child would run away even if what it has done is not criminal but merely a breach of school or parental rule. In the absence of other evidence, such as evidence about the appellant’s upbringing or his reaction when seen by the police, the justices could not justifiably base their decision on that fact alone.”

1.18 It is important to note that although knowledge of a serious wrong, coupled with any necessary implication from the age of the child, can be inferred from the circumstances of the case, a child cannot be presumed to know the nature of the act simply because other children of his age and background would normally be held to possess such knowledge. In rebutting the presumption, the prosecution must prove beyond reasonable doubt that the child himself or herself knew what he or she had done was seriously wrong, and was not being merely childish, naughty or mischievous. This important issue was raised in CC (A Minor) v DPP, where Mitchell J observed as follows:

“In determining that question, the tribunal of fact must avoid the trap of applying another presumption, one which has been termed the ‘presumption of normality’. That presumption is to the effect that any normal boy of his age in society, as it is today, must have known that what he was doing was seriously wrong. Such an approach as that reverses the relevant presumption of doli incapax.”^[17]

1.19 There are other factors which have been considered by the courts, but the observations made by Simon Brown L.J in Sheldon provide a useful summary:

“1. It is presumed that a child between the ages of 10 and 14 is doli incapax^[18] and in all cases it is for the crown to rebut the presumption: to prove that when doing the act charged the child knew that this act was seriously wrong as distinct from an act of mere naughtiness or childish mischief.
2. The criminal standard of proof applies: clear positive evidence is required, not consisting merely in the evidence of the act amounting to the offence itself, however horrifying or obviously wrong that act may be.

3. The older the defendant is and (logically, notwithstanding paragraph 2 above) the more obviously wrong the act, the easier it will generally be to prove guilty knowledge.

4. The surrounding circumstances are clearly relevant and what the defendant said and did both before and after the act may go to prove guilty knowledge. Certain conduct, however, such as running away or lying, may, depending on the circumstances, be equivocal, as consistent with naughtiness as with wickedness.

5. Proof that the defendant was a normal child for his age (which must not be presumed but, assuming guilty knowledge can otherwise be established, need not be proved) will not necessarily prove also that he knew his action was seriously wrong. The less obviously wrong the act, the less likely is it to do so.

6. Even where, as in Coulburn (1988) 87 Cr. App. R. 309 (a murder case), the doli incapax presumption is overlooked, if on appeal the Court is satisfied that had the issue been left to the jury they must inevitably have found that the defendant knew that his act was seriously wrong, the verdict will be found safe and the appeal will fail.”^[19]

1.20 In recent years, there have been calls in Hong Kong and from the United Nations to review both the irrebuttable and rebuttable presumptions of doli incapax on the general ground that the relevant ages set for the two presumptions are unrealistically low, and are thus contrary to the interests of children and the community at large. The principal argument advanced for the raising of Hong Kong’s minimum age of responsibility is the suggestion that a seven year old child is too young to take full criminal responsibility for his actions and to be made subject to complex and perhaps lengthy criminal proceedings which flow from a prosecution. Those advocating change query the appropriateness of exposing a child to the full rigours of the criminal justice system. They point out in addition that the age of seven is the lowest minimum age of criminal responsibility applied in the common law world.

1.21 These demands for reform have been echoed in the Committee on the Rights of the Child and the Human Rights Committee of the United Nations, which has called for a review of the law of Hong Kong with a view to raising the minimum age of criminal responsibility in the light of the principles and provisions of the United Nations Convention on the Rights of the Child and the International Covenant on Civil and Political Rights (ICCPR).

1.22 In response, those who favour maintaining the existing age of criminal responsibility argue that bringing young delinquents into the criminal justice system in their formative years provides an opportunity for systematic rehabilitation. Sanctions imposed on a child reduce the likelihood that he will develop a life-long pattern of criminal behaviour. Those favouring the status quo further argue that the system of compulsory education in Hong Kong means that children now acquire mental and social maturity at a relatively early age. Today’s children in Hong Kong, it is said, can readily distinguish right from wrong at an early age. A further argument advanced for maintaining the existing age of criminal responsibility is that any raising of the minimum age would place young children at risk of exploitation by adult criminals in furthering their criminal designs.

1.23 The call to raise the minimum age of criminal responsibility is not a recent phenomenon. Indeed, the Juvenile Offenders (Amendment) Bill 1973 was debated in the Hong Kong Legislative Council in 1973 in an unsuccessful attempt to raise the minimum age to ten years of age. As we have seen, this attempt failed as it was thought that children above the age of seven were old enough to be used by adult criminals for unlawful purposes. Subsequent to this unsuccessful attempt at reform, there have been periodic calls for change.

1.24 In a letter dated 31 July 1992 to the then Attorney General, Mr Jeremy Matthews, the Hong Kong Bar Association invited Mr Matthews to consider, in conjunction with this Commission, the whole question of the appropriate minimum age of criminal responsibility in Hong Kong. In his letter of reply to the Association dated 12 October 1992, Mr Matthews pointed out that the issue of the minimum age of criminal responsibility had been considered by the Standing Committee of Young Offenders in February 1988 where it was agreed that the age of criminal responsibility should remain at seven years. In his letter, Mr Matthews argued that the time was not ripe for a review of the subject, having regard to local concerns about the rising crime rate; the fact that young juveniles were more susceptible to the influence of triads and to vices such as drug abuse and violence; the fact that the majority of young offenders aged under ten continued to be cautioned under the Police Superintendent’s Discretion Scheme; and the views of the then Secretary for Security and the Police.

1.25 Over the years, a number of representations for change have been made to the Administration, some supported by the research findings of sociologists and psychologists which suggest that children only begin to have full control of themselves at about the age of 12, and that a mature moral concept of right from wrong would only develop at the ages of 12 to 13. Proponents of change therefore argue that it is harsh and unreasonable to impose criminal responsibility on children below these ages, when they are neither able to exercise full self-control nor have developed a mature personality.

1.26 As noted above, demands to raise the age of criminal responsibility are not confined to local commentators. The United Nations Committee on the Rights of the Child has also expressed concern at the minimum age of criminal responsibility in Hong Kong. Pursuant to Article 44 of the United Nations Convention on the Rights of the Child which was extended to Hong Kong in 1994, the Hong Kong Government responded to the concerns of the Committee through its submission of an “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” to the Committee on 2 and 3 October 1996. At that hearing, issues arising from the prosecution in Hong Kong during the period from 1992 to 1995 of children between seven and 10 years of age were considered. Following the hearing, the Committee issued its “Concluding Observations”, in which it recommended at paragraph 34 that:

“... a review of legislation in relation to the issue of the age of criminal responsibility be undertaken with a view to raising this age in the light of the principles and provision of the Convention.”

1.27 A similar recommendation was recently made by the Human Rights Committee of the United Nations. In its “Concluding Observations” at the hearing in November 1999 of the HKSAR’s report submitted under Article 40 of the International Covenant on Civil and Political Rights, the Committee stated at paragraph 17 that:

“The Committee is concerned that the age of criminal responsibility is 7 years and takes note of the statement by the Delegation that the Law Reform Commission is currently conducting a review of this matter.

The age of criminal responsibility should be raised so as to ensure the rights of children under article 24.”^[20]

1.28 As mentioned earlier, however, views are not one-sided in favour of raising the minimum age of criminal responsibility. Those in favour of maintaining seven as the minimum age have argued that bringing young children within the criminal justice system enables them to be given greater professional care and attention and should be taken as a positive move. Raising the minimum age of criminal responsibility would do a disservice to those currently subject to full criminal process, as these children would be deprived of the protective and rehabilitative opportunities incidental to criminal proceedings.

^[2] Under section 2 of the JOO, a “young person” is defined as “a person who is, in the opinion of the court having cognizance of any case in relation to such person, 14 years of age or upwards and under the age of 16 years”.
^[3] Restrictions on punishment of young persons are provided in section 11(2) of the JOO which provides that: “No young person shall be sentenced to imprisonment if he can be suitably dealt with in any other way.”
^[4] A D Photis, “Criminal Responsibility of Infants” (April 25, 1987) Justice of the Peace, at 263.
^[5] Cited above, “Criminal Responsibility of Infants”, at 263.
^[6] J Smith and the late B Hogan, Criminal Law (Butterworths, 1996), at 195.
^[7] Cited above, Criminal Law, at 195.
^[8] [1918] 83 JP, at 136.
^[9] Archbold, The Indictment (Sweet & Maxwell, 1998 ed), at paragraph 1-91.
^[10] [1984] 79 Cr App R 255, at 260.
^[11] Cited above, J M (A Minor) v Runeckles, at 259.
^[12] [1958] 44 Cr App R 1, at 3-4.
^[13] The minimum age of criminal responsibility was 8 years of age at the time when this case was heard. It thus followed that the age-lines for the rebuttable presumption of doli incapax were 8 to 14 years.
^[14] [1989] Mag App 436/89, at 5.
^[15] [1997] 1 Cr App R 27.
^[16] [1991] C.O.D. 442, D.C.
^[17] [1996] 1 Cr App R 375, at 381.
^[18] This is contrasted with the position in Hong Kong where the ages to which the rebuttable presumption of doli incapax apply are between 7 and 14 years.
^[19] [1996] 2 Cr App. R 50, at 53.
^[20] Article 24(1) of the ICCPR provides that every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

Hong Kong Law Reform Commission

Chapter 1 - The criminal responsibility of children in Hong Kong

The historical development of the principle of doli incapax

The irrebuttable presumption of doli incapax

The rebuttable presumption of doli incapax

Difficulties with the current law

The history of calls for reform