Recent concerns

The Law Reforem Commission of Hong Kong issued a consultation paper on Age of Criminal Responsibility in January 1999. Below is our response to the consultation paper.

The Hong Kong Committee on Children's Rights (HKCCR) was established as a charitable, non-governmental agency, in 1995. Membership of the agency is made up of a wide range of local professionals having an interest in the rights of children, including their proper development and protection. The public is consulted through open meetings, workshops, events and publications. The Committee has also submitted an alternative and complementary report on the situation of children in Hong Kong to UN Committee on the Rights of the Child in Geneva, highlighting areas for improvement including the Age of Criminal Responsibility.

2) Historical justification for establishing and retaining the minimum age of criminal responsibility at the age of 7 in Hong Kong:

Medieval England
As mentioned in the paper there are many contractions in the background to the criminal law. In Medieval England when the age was set at 7, children were employed in often dangerous occupations and were the property of parents and employers. Within memory such young children were taken from parents and sent overseas to help populate developing colonies e.g. Australia. England is not known for its enlightenment in regard to the traditional treatment and attitude to children.

Many countries prosecute at a young age
In the statistics provided in Annex 3 and Paragraph 2.30 it can be seen that most countries retaining an age of less than 14 are Commonwealth countries or those having an early association with the British legal system.

Social Welfare Child Care Services were late in development in Hong Kong
Welfare services were slowly and sparingly developed by government in Hong Kong prior to the mid-1970s. Security and correctional services have an earlier history. The legislative and security objections made over the years to suggestions for improvement and to the decriminalization of young children e.g. Para 1.8, the manipulation of children by "undesirable characters", would seem to suggest greater faith in the security forces rather than the underdeveloped child and welfare services at that time.

Worldwide trends
As mentioned earlier most countries having a younger age have been influenced by colonial connections rather than logical deduction and relevance. The trend worldwide has been to raise the age, rather than lower, and the age is generally over 14. Education levels have also been raised worldwide. Many countries avoid criminal proceedings even for older youth who are liable to such proceedings. There is no argument advanced in the Report, which can explain why Para 2.34 advises to view the trend with caution.

Cultural and Social Values
Para 2.34 also makes the point that cultural and social values may be relevant in a discussion on the law. Hong Kong is basically a Chinese territory or city. Adjacent territories sharing similar cultural values include Taiwan, Macau and mainland China, all of which have an age of criminal responsibility over 14, i.e. 14, 16 and 14 respectively. Singapore retains its British legacy.

Autonomous Morality and Conventional Reasoning
The Report mentions modern knowledge of child psychology and human development and in this area the theories articulated by Kohlberg have not been seriously and effectively challenged. His theory, which the Committee supports, would suggest that no lower than age 14 could be considered a reasonable age to assume a child can have criminal responsibility. The Committee believes that the Report (Para 3.26) does a grave disservice to Hong Kong children by a less than justifiable reference to "some studies" suggesting that Asian adults are controlled only by external values, while suggesting that Kohlberg's respected findings should be treated with caution.

Criminalisation leads to a criminal career
Criminalising a child who has little understanding stigmatizes him, alienates him from 'respectable' society, creates problems of self esteem, steers him towards 'fellow criminals' and potential triad recruitment, may seriously and adversely effect his employment or future study opportunities etc.

Children can be exploited by adult criminals.
Certainly children may be exploited and used / abused by adult criminals. We do not accept this as a "cogent" argument (Para 3.3). We support such exploitation being an offence for these adults, however the child's exploitation should not be a justification for his criminalisation. The circumstances of such exploitation may indicate the need for protection and / or care for the child.

Children are better educated and more physically mature
We do not agree that compulsory (better?) education, which does not end until age 15, denotes that children have the moral reasoning ability to be criminalised. In fact most legislation, on attendance at school, consent to sexual relations, including recently introduced legislation on the unsworn evidence of children under 14, recognise that children of this age do not have the capacity or ability to make responsible decisions with serious consequences for their own lives or the lives of others (Para 3.30). Physical growth does not equate to conventional reasoning.

Rate of involvement of children in criminal activities
We would like to voice our concern that the way in which the paper is written would not help the general public to appreciate that a rise in statistics of arrests or detection of offences does not itself imply comprehension on the part of the child, the seriousness of criminalising a child and the alternatives to criminal law in the prevention of a child's participation in criminal acts, and the provision of the treatment, control and rehabilitation measures.

The incidence of involvement does not indicate understanding on the part of the child. In Hong Kong, in any case, the numbers of arrests are not significant and prosecutions, findings of guilt, even less. However, the necessity for the police to give so much time to the procedures of arrests, court hearings etc is not justified in terms of need or outcomes i.e. guilty pleas and convictions. The high acquittal rate may indicate the Court's concern about the criminal comprehension of such young children.

Raising the age would remove children from the "safety net of these rehabilitation measures" i.e. various sentencing options.
In fact (as mentioned in the report) the emphasis on rehabilitation rather than retribution (Para 3.11) serves to highlight that these young children, under 14, should be, and can be, taken out of the 'criminalising' system. Rehabilitation measures are now available under the Children and Juveniles Ordinance, including Care and Control. Supervision orders can be made, similar to Probation Orders, and rehabilitation measures adopted in Children's Homes and Hostels, the Community Support Service Scheme etc. The potential and use of these schemes and the possibility of retaining some police involvement in the guidance of young people may not be generally understood by the public (Para 3.12) or even by many professionals.

Police Superintendents Discretion Scheme
We believe that the police are concerned not to criminalise many children. In fact even without this scheme research shows that the vast majority of children will not commit crimes. We appreciate however that with the age at 7 many children who are brought into the scheme benefit from being cautioned rather prosecuted. We also object to the caution administered under this scheme being informed to the Courts if there is a subsequent prosecution, because it is possible that family concern and pressure may have lead young children to confess to a crime they did not commit.

Prosecution Policy Guidelines
These guidelines include the following approaches: that the welfare of the child should be fully considered, there is a much stronger presumption in favour of using methods falling short of prosecution except in the case of serious offences (not child's comprehension of these?), and prosecution should not be for accessing the welfare powers of the court.

We believe that the issue should be the child's comprehensive and anything less than age 14 is too young. We believe that, even as retribution (Para 3.11) is not the main purpose of the prosecution and that the emphasis is on rehabilitation, "access to the welfare powers of the court" is indeed an important factor in taking many children to court, including "exploitation by adult criminals". A recent survey indicates that the public may believe this to be a good reason and speakers at a recent social workers' forum put forward this view. Using the Children and Juvenile Ordinance would be more appropriate to "access a welfare approach".

Police Involvement

The detection by police of 'criminal' behaviour by children under the age of 14 can lead to the child being referred to the Social Welfare Department or subvented agencies, if the behaviour or the child's circumstances lead the police to suspect that the child is in need of protection, control or treatment. Police can continue their police liaison schemes, community talks, 'cautions' on delinquent behaviour and parental supervision, etc.

Court Hearings&
a) The police or social welfare agencies could address the juvenile court on the need for the child to be subject to supervision, treatment and control. The child should be legally represented, particularly if the result could be loss of liberty. The latter is a recommendation of another recent Law Reform Commission Consultation paper.

Rehabilitation Measures
Placement in residential homes or hostels may cater for the protection, treatment or control of children whose behaviour indicates this need. These homes have relatively structured routines and may help the children through disciplined training, group treatment and other programmes to develop life skills and prepare them for rehabilitation; the stated aim of the present juvenile justice system!

Community Rehabilitation Services
We believe that the youth welfare services may be more constructively used in the prevention of juvenile misbehaviour and in the treatment and rehabilitation of young people. These include Youth Outreaching Teams, School Social Work and Youth Centres. These can link with the police involvement mentioned earlier, the Community Support Service Scheme and voluntary Community Service under supervision.

We believe that once a decision is made to raise the age of criminal responsibility to 14, the Hong Kong government and community can use this opportunity to review and to make good use of the youth services available, to review the arrangements for court hearings and the whole judicial approach to juvenile and youth crime.