HKLII

Hong Kong Law Reform Commission
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Preface

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1. In June 1998, in response to calls for a review of the law governing the age of criminal responsibility in Hong Kong, the Chief Justice and the Secretary for Justice made a reference to the Law Reform Commission in the following terms:

“To review the law regarding the minimum age of criminal responsibility and the presumption of doli incapax and to consider such reforms as may be necessary.”

On 13 January 1999, the Commission published its Consultation Paper on the Age of Criminal responsibility in Hong Kong (the consultation paper), for the purpose of seeking input from the community as to what should be the appropriate age at which a person should be held responsible or accountable for his criminal conduct.

2. The scope of the consultation paper was deliberately confined to a review of the law governing the age of criminal responsibility in Hong Kong, and did not attempt a review of the juvenile justice system as a whole. Any such extension of the bounds of the reference would have added considerably to the complexity and duration of the study, thus delaying the original purpose of examining the age of criminal responsibility in Hong Kong. It became clear during the process of consultation, however, that any decision on whether or not to raise the age of criminal responsibility would be contingent on the adequacy of alternative means to prosecution in dealing with children below the age of criminal responsibility. For that reason, this final report includes a chapter on the mechanisms currently available for dealing with unruly persons below the age of 18, and on the present legislative provisions which protect young children from exploitation by adult criminals. The material in chapter five is therefore intended to answer concerns which would properly be voiced that any raising of the minimum age of criminal responsibility would adversely affect the law and order of our community.

3. In recent years, there have been calls in Hong Kong for the minimum age of criminal responsibility to be raised. Those favouring a change argue that it is undesirable to subject young children who are still socially and mentally immature to the full panoply of criminal proceedings, with their attendant sanctions and stigma. These demands have been echoed by the United Nations Committee on the Rights of the Child, and by the United Nations Committee on the International Covenant on Civil and Political Rights (ICCPR), both of which bodies have called for a review of the law in 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 ICCPR.

4. In reply, those who favour maintaining the present minimum 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.

5. In the light of this divergence of views, the consultation paper presented the following four options for reform:

Option A: Retain the present system;

Option B: Raise the minimum age of criminal responsibility but abolish the rebuttable presumption of doli incapax;[1]

Option C: Raise the minimum age of criminal responsibility and retain the rebuttable presumption of doli incapax for persons between the revised age and 14 years. The burden of rebutting the presumption continues to rest with the prosecution;

Option D: Raise the minimum age of criminal responsibility and create a rebuttable presumption of doli capax for persons between the revised age and 14 years. The burden of rebutting the presumption would rest with the defence.

6. The process of consulting the public opinion on the age of criminal responsibility in Hong Kong took two forms. The first was the publication of the consultation paper, which set out the range of options for comment. Secondly, a public opinion survey on the age of criminal responsibility in Hong Kong was conducted by the Department of Applied Social Studies of the City University of Hong Kong on the Commission’s behalf.

7. Comment on the consultation paper was invited during the period between 13 January 1999 and 31 March 1999, principally on the four options for reform set out above. The public opinion survey was conducted between 28 April and 8 May 1999. The report which follows is the result of our careful consideration both of the responses received and of the survey findings obtained by the City University.

8.In reaching the conclusions contained in this report we have been greatly assisted by the advice and comments given by experts in this area of the law. We are particularly grateful to all those who responded to our consultation paper. Their comments have been invaluable to the shaping of this final report. The individuals and organisations who responded are listed in Annex 1. We wish to express our thanks to the City University of Hong Kong for the public opinion survey which they conducted on our behalf. We are particularly indebted to the Hong Kong Police for their assistance and for providing the statistical data contained in both the consultation paper and this report.


[1] The rebuttable presumption of doli incapax applies to a child between the ages of seven and 14 and means that a child of that age cannot be convicted unless the prosecution rebut the presumption by proving beyond reasonable doubt that, at the time of the offence, the child was well aware that his act was seriously wrong, and not merely naughty or mischievous.