Juvenile Offenders Ordinance
Nowadays, our society is becoming complicate. When we read newspaper, listen to the radio or watch television, there is no doubt that some news are related to crimes, for example, drug trafficking, indecent assault, wounding, gang violence, criminal intimidation, robbery, burglary, criminal damage, triad activities and so on. An upsetting picture appears, some of the crimes mentioned above are involving youngsters; some situations (e.g. selling pirated VCDs) include some youngsters as young as eleven or twelve years old.
If a young person has broken the law, they will be prosecuted under the Juvenile Offenders Ordinance. As a social worker, we will encounter similar situations or enquiries in our daily practices, so it is very important for us to equip some knowledge and understandings of the ordinance related to juvenile offenders.
The Spirit and Principles underlining the Juvenile Offenders Ordinance
Every society should let in that some kind of people are unprotected, they are easily under threats, attacks, illnesses and so on. No person will assume children are strong enough and able to act or to think as a healthy adult. They must be protected and provide as much opportunities as to develop their morality, body and skills.
Law is no exception from the above concepts. If we take a look at the ordinances concerning crimes related to juvenile offenders, we may be easily impressed by the comparatively lenient treatments or punishments for these offenders.
So who can be called as a child or young person? And whom the Juvenile Offenders Ordinance will affect? According to Juvenile Offenders Ordinance (Cap. 226 Sec. 2), a “child” method 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. A “young person” method a person who is 14 years of age or upwards and under the age of 16 years and it is clearly stated that no child under the age of 7 years can be guilty of an offence.
If a young person has violated the law, they will generally be trial in the Juvenile Court; no person shall be present at any sitting of the Juvenile Court except officers or any persons directly related to the case concerned. We can see clearly the juvenile are better protected from other or outside disturbances and any things do are trying to minimize the psychological impacts on them.
There is special separation of children and young persons in police stations, courts and procedure in the Juvenile Courts too. Some restrictions are imposed on the punishments of the children and young persons; for example, no child shall be sentenced to imprisonment or committed to prison in default of payment of a fine, damages, or costs. No young person shall be sentenced to imprisonment if he can be suitably dealt within any other way and already if he should be sentenced to imprisonment, he shall not be allowed to associate with adult prisoners.
As we can see clearly from the above legal concepts concerning juvenile offenders, it is not hard to notice some principles and spirits are underlining the ordinance. As our society recognize child and young person are nevertheless developing their mental capacity and their cognitive ability are not well enough to discriminate what is right or wrong, what is moral or immoral and what is offences or not. Personally speaking, it is appropriate to protect them from the psychological impacts as much as possible when they are under the criminal proceedings or prosecution.
instead of sending the young offenders into the jail, there are many other options generally obtainable to courts for the purposes of rehabilitating the young offenders between seven and 14 years of age, for example, the community sustain service scheme, the police superintendent’s discretionary scheme and so on. We should observe that the options obtainable to a court in dealing with the young offenders focus mainly on rehabilitation instead of punishment, it reflects the society generally agree that young people should be given opportunities and chance to correct their wrong doing. As these young people becoming mature, they will discover there are nevertheless chance for them to cure what they have done wrong before and comparatively lenient punishments will minimize the chance of ruining their life.
Adequacy of the Juvenile Offenders Ordinance
In Hong Kong, the minimum age of criminal responsibility is statute based. It shall be conclusively presumed that no child under the age of 7 can be guilty of an offence. It creates in Hong Kong a conclusive or irrebuttable presumption that a child is doli incapax (incapable of committing a crime), but over the age of seven, in respect of a child aged between seven and 14 years, Hong Kong SAR follows the shared rule established in medieval England that a rebuttable presumption 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, complete criminal responsibility will be imposed on the child who may then be charged, prosecuted and convicted for any offence allegedly committed.
As the concepts mentioned above, it seem the child aged between seven and 14 years are nevertheless being protected from the doli incapax, except some scarce circumstances, but I just want to point out that the criminal procedures are long and complicate, it will create numerous psychological pressures for the young people being prosecuted or investigated. During the year of enjoyable childhood, they suffered from these pressure and the proceedings may affect their studies too.
In many other developed countries, the minimum age of criminal responsibility is higher than Hong Kong’s, it can make sure more children will not be under the complicated legal prosecution, it is not only reduce the pressure they will suffer, but also help to reduce the legal costs.
Most children in Hong Kong begin their kindergarten education at the age of three or four. School attendance is compulsory for those at the age of six or 15. School are required not only to provide academic training for their students, but are also tasked to develop their reflective and basic thinking, moral attitudes and social values. They are provided with opportunities to practice moral values and make moral decision under teachers’ guidance. When the children are seven years old, they have already received some four years of formal education (two years in kindergarten and another two years in dominant schooling). Personally speaking, it is risky to assume that when a child attained seven years old, they must by then have had inculcated in them the concept of “right” and “wrong” and the necessary “moral attitudes” and “social values” basic for their recognition that a certain act is a “serious wrong” in the ordinary sense of the term.
It can also be argued that the enhanced educational opportunities obtainable to today’s children average that they reach social maturity more quickly than their counterparts in earlier times, and are capable of distinguishing right from wrong at a young age, children nowadays might be seen as more complex than their predecessors, but I think better education does not necessarily guarantee a greater readiness to discriminate right from wrong because the children nowadays might also unprotected to greater levels of misinformation, which may obstruct their ability to discriminate right from wrong. Also the present education system places too much emphasis on intellectual development at the expense of moral development. I think Hong Kong can consider rising its age of criminal responsibility.
In order to reduce the chance that adult using this legal loopholes, harsh punishments should be implemented to safeguard the law instead of severely punish the juvenile being used and in the expense of their enjoyable childhood.
Changes over the Juvenile Offenders Ordinance
In recent years, there have been calls there for the minimum age of criminal responsibility to be raised. Those favoring a change argue that it is undesirable to subject young children who are nevertheless socially and mentally immature to the complete panoply of criminal proceedings, with their accompanying sanctions and stigma.
On the other hands, calls for a review of the law governing the age of criminal responsibility in Hong Kong are undoubtfully in response to the juvenile offences in recent years. It reflects our society is no longer tolerant the crimes committed by the youngsters. Those who favor to lower of the present minimum age of criminal responsibility argue that bring those young delinquents into the criminal justice system in their formative years provides an opportunity for methodic rehabilitation. Sanctions imposed on a child reduce the likelihood that he will develop a life long pattern of criminal behavior.
I hope we will not take the problems as a simple question, don’t simply think when they commit crimes, criminal justice will solve all these problems. Many of the youngsters are the victims under controlled by the triad societies or syndicates. They don’t know how to resist the threats or financial temptation from them. If we understand more about the crux of the problems, do something to deter it from happening; it is more effective and advantageous. We can pass heavy sentences to those adults using teenagers to commit crimes. Also, a child cannot be presumed to know the character of the act simply because other children of his age and background would typically be held to possess such knowledge.
Social Impacts made by the Juvenile Offenders Ordinance
Nowadays, the present minimum age of criminal responsibility that children in their formative years should not be made unprotected to criminal proceedings as the trauma caused may be damaging. It not only provides a framework of rules, which determine or recognize what are permissible patterns of behavior within the society, but also avoid undesirable to impose the stigma of conviction on a child. except being unfair and inappropriate to subject a seven year old to the traumatic and confusing experience of appearing in court, it is also avoiding another undesirable effect of persecuting and convicting a young child that he will bear the stigma for the rest of his life of wrongs committed at a young age. On conviction the child or young person will be left with a criminal record, which may adversely affect him in later life, it may ultimately rule him towards a criminal career and alienation from the society.
The impact is obvious, it implies that we have confidence in the education or rehabilitation sets. We keep the faith that people can change or able to learn from the errors. When our society accepts errors and keep up an open mind towards human, the society can progress towards a harmony ecosystem.