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According to Section 3 of the Juvenile Offenders?Ordinance, the current legal position in Hong Kong regarding the age of criminal responsibility is stated thus: "It shall be conclusively presumed that no child under the age of 7 years can be guilty of an offence.?"Those above the age of seven, however, may be charged and face prosecution and other possible consequences of having committed a crime. The advent of the concept of Children's Rights has prompted some members of society to question the maturity, cognitive development, judgment and self-control of children under the age of 14. It is believed that children will suffer a grave injustice if they are faced with the criminal justice system when they lack the maturity to understand the consequences of their behaviour. Other groups in society, however, take the position that children over the age of seven are mature enough to realise criminal intent, and should therefore be held responsible for their behaviour. They also believe that the current system of juvenile justice has no shortcomings with respect to the protection and processing of juveniles. The question which we face is how to balance the differing viewpoints regarding the age of criminal responsibility for children? By surveying the opinions of those in the legal profession, community leaders, academics, agency administrators, educators and youth workers, as well as, soliciting the opinions of the general public, we hope to improve our understanding of the differing points of view, so as to facilitate the creation of a suitable policy and improved services.
Both a qualitative survey and a quantitative survey were employed for this study. For the qualitative survey it was conducted among opinion leaders. Copies of a self-administered questionnaire, together with a background information paper on the issue and the current situation of Hong Kong, were sent out to a wide spectrum of potential respondents including legal and judicial professionals, community leaders, academics, advisory committee members, agency administrators, educators and youth workers. The questions of the survey were directed to solicit respondents?opinions towards the age of criminal responsibility, the rationale on which they based their support or disapproval to any change in the age of criminal responsibility, as well as possible implications for any change.
The qualitative survey was conducted from 3 July to 10 September 1998. A total of 72 copies of a questionnaire were sent out and 45 were successfully completed and returned. For the quantitative survey it was conducted by telephone from 10 to 12 August 1998. A total of 539 people, aged 18 or above, were successfully interviewed. The success rate was 44.0 per cent, whereas the standard error was within 2.1%. The analysis contains a synthesis of both the qualitative and quantitative data from the respondents and from an extensive review of the literature.
The opinions towards a change on the age of criminal responsibility are diversified.
As revealed from the result of the qualitative survey among opinion leaders, a larger portion of the respondents favoured an increase to the age of criminal responsibility above the age of 7 to, for example, the ages of 10 or 14. For those experts and academics that are in favour of raising the age of criminal responsibility, their reasons can be divided into two categories, namely, "that children or juveniles should be protected" and "that children or juveniles are not mature".
On the other hand, the results of the quantitative survey conducted by telephone, revealed that 59.7% of the respondents from the general public preferred the age of criminal responsibility to remain unchanged at 7. Reasons for this position include: that children of 7 in general can differentiate right from wrong, and, are therefore capable of committing a crime with criminal intent (46.0%), and that the existing juvenile justice system operates very well (40.1%).
With respect to the age of maturity for a child to bear criminal responsibility, the results of opinion leaders are divided as well. Despite the fact that many of them start off from similar psychological premises, their conclusions differ widely. Proponents of raising the age of criminal responsibility to 14 believe that not only is a child under 14 less morally culpable for his or her actions than an adult, but that in general, a child under 14 cannot differentiate right from wrong. A child's behavior is largely a resultant of various social influences. On the other hand, proponents of raising the age of criminal responsibility to 10, have different views. They believe that when a child reaches the age of 10, he or she should have the knowledge, understanding and ability to judge right from wrong. With compulsory education from the age of six and in this information era, it seems to deviate from common sense that a child of 10 lacks the ability to understand or the capability to comprehend right from wrong.
For those who propose to retain the age of criminal responsibility at 7, they believe that a child in general matures earlier than previous generations in this era of mass media information. To assume a child over the age of 7 is immature and incapable of committing a crime because he or she lacks necessary criminal intent, may not be accurate.
Public opinion is also divided, as is revealed from the results of the telephone survey. 44.8% of the respondents said that a person is regarded “mature?when he or she reaches the age of 18 to 20. Only a minute portion (0.7%) of the respondents said maturity is reached at 14. No one indicated that a child is mature by the age of 7. 28.1% of the respondents believe that only when a child reaches the age of 14 to 17 can he or she have the necessary criminal intent. Another 23.6% respondents said the age should be around 18 to 20. Some 35.0% respondents said only when a person reaches 18 to 20 can he or she understand the consequences of his or her criminal act. Overall, the results from the telephone survey revealed that a large portion of the general public regarded the age of maturity to be between 18 to 20.
A crucial question on the age of criminal responsibility: will the change of the age of criminal responsibility make the law and order situation deteriorates faster? The findings of the telephone survey shed some light in this respect. In spite of over half (58.1%) of the respondents being in favour of rehabilitative measures for juvenile offenders, and that another half (56.2%) of the respondents support more counselling services for those who go astray, only a small number (7.8%) of the respondents agree that these measures be applicable to young offenders of serious crimes. This shift of attitude clearly indicates the worries and concerns of the general public regarding the law and order situation of society. The importance of law and order, apparently, is a higher priority than is the rehabilitation of young offenders.
The statistics on juvenile crime for the last few years give us a clearer picture. The trend of an increasing number of young people in committing crimes as well as the increase in petty crimes, is obvious. The average age of juvenile offenders has been getting lower. Crimes such as sexually assault, grossly bodily harm, offense against persons, criminal intimidation, burglary, robbery, arson or theft, are mostly committed by juveniles of 7 to 16. Other petty crimes, such as shoplifting or gang fighting, are also increasing among juveniles. One significant trend should be noted that crimes, no matter serious or petty, committed by children under 10 are relatively few. Whereas starting from age 10, particularly for the ages 11 to 13, the statistic of crimes across the board climbs abruptly. This clearly reflects that ages 11 to 13 are crucial for child development. It also matches the fact that most of the children at this age are undergoing a transition period from Primary Five or Six to Secondary Form One. The new challenge from the change of school and parental expectations, coupled by emotional instability, seems to be manifested by deviant behavior in the committing of petty crimes for juveniles at this age. In short, the statistics show that crimes committed by children under 10 are relatively few in numbers.
In view of the above discussion, the Federation will recommend:
Since the issue on the age of criminal responsibility concerns many aspects of society, and the opinions towards change are diverse, the government must undertake a wide consultation of opinion and recognize different points of view before any change can be initiated.
Results of the findings reveal that most opinion leaders are in favour of raising the age of responsibility above the age of 7, based on the belief that the "protection of children" should be strengthened. This is in contrast to the opinion of the general public that preferred the age of criminal responsibility to remain unchanged at 7. This opinion was greatly concerned with the issue of "maintaining law and order in society". The government needs to strike a balance between these two different viewpoints. Among those who are in support of increasing the age of responsibility, there is no consensus on exactly what age is to be recommended. Opinions towards a change of age to above 10 years old are also very divided.In recognition of the trend in the international community towards the protection of children, and after considering the social conditions and attitudes of the public, the Federation recommends that the government consider raising the age of criminal responsibility to a level widely accepted by the society.
Due to the fact that decriminalizing offences and supporting rehabilitation of juvenile offenders are widely accepted by society, it is advisable that an overhaul of all related legislation should be reviewed. Examples would include: the Juvenile Offenders Ordinance (CAP.226), Evidence Ordinance (CAP.8), Criminal Procedure Ordinance (CAP.221), Protection of Children and Juveniles Ordinance (CAP.213), Magistrates Ordinance (CAP.227), Rehabilitation of Offenders Ordinance (CAP.297), Probation of Offenders Ordinance (CAP.298), Training Centre Ordinance (CAP.280), Prisons Ordinance (CAP.234) and Community Services Order Ordinances (CAP.378). The Federation recommends that the principle of decriminalizing offenses and rehabilitation must be respected.
In considering the issue of the age of responsibility, it must be clear that this is an issue that extends beyond legal considerations. It is an issue that also concerns public policies on the rehabilitation of juvenile offenders, its related counseling and education resources allocation, worries about safety and order, public attitudes towards juvenile offenders, etc. Any change to the age of criminal responsibility implies the change of many other related policies. For example, if the age of criminal responsibility is raised to a specific age, it does not mean that children under that specific age, when deviant (then "criminal"), can be totally left out of our legal or social service systems. Instead, new measures, probably under the guidelines of "child protection" may be implemented. As a result, children may no longer have to be criminally responsible, but have legal, social, counselling, or rehabilitative services provided as well. In view of these facts, the Federation recommends that the government should review the situation from a more macroscopic view. In considering any change on the age of criminal responsibility, a review on the child protection services as well as the policies on the rehabilitation of juvenile offenders should be mandatory.
Youth Study Series No.16
