Throughout the world, countries try hard to avoid embroiling children in their criminal justice systems. This recognizes their vulnerability, as well as their lack of maturity. It is also an acknowledgment that the punishment of children can be counter-productive, with reformative alternatives often being beneficial.
The United Nations Convention on the Rights of the Child (UNCRC) defines a child as a person aged under 18 (Art.1), unless, under local law, majority is attained earlier. It also provides that the arrest, detention and imprisonment of a child “shall be used only as a measure of last resort and for the shortest appropriate period of time” (Art.37). As children need to be protected from themselves, many jurisdictions have adopted an age of criminal responsibility, sometimes called the “defense of infancy”.
If, therefore, children are below a specified age, they cannot be prosecuted. Instead, the assumption is made that they do not fully appreciate what they have done, let alone understand the consequences or the subsequent legal procedures. The UNCRC applies throughout China, although the age of criminal responsibility differs in various parts of the country.
In Hong Kong, the age of criminal responsibility is 10, which some consider too low. It was raised from 7 in 2003, and is the lowest in China, although the same as in England and Wales. In Macao, children under 16 are exempt from prosecution, although a special protection scheme exists for dealing with young offenders aged 12 or above. In addition, those aged 12 to 16 may be awarded a “police warning” in Macao, which is a non-judiciary measure designed to educate the child and prevent recidivism. In Taiwan, a child below 14 is not criminally liable, although a young offender may face rehabilitative training instead. In the Chinese mainland, the situation has recently been reformed.
Throughout China, therefore, the criminal justice systems approach juvenile delinquency in a similar way. In all four jurisdictions, it is recognized that the public interest requires young offenders, if at all possible, to be diverted away from a life of crime, rather than to be sucked yet further into the criminal process by prosecution and punishment
Until last year, the age of criminal responsibility in the mainland was 16, although this was lowered to 14 for serious offenses, such as intentional homicide, rape and robbery. On December 26, however, the NPCSC lowered the age from 14 to 12 for some grave crimes. Under the amended law, children aged 12 to 14 will also be criminally liable for “intentional homicide or intentional injury that leads to death or causes others severe disabilities by extremely cruel means”. Although children under 14 who commit crimes other than those specified in the newly amended law cannot be criminally punished, they may still be required to undergo correctional education.
This change resulted from a crime wave. In June 2020, the Supreme People’s Court reported a spike in juvenile offending from 2018 to 2019, and there was rising public concern over the lenient way in which the culprits were being treated. In Dalian, for example, a 13-year-old boy who murdered a 10-year-old girl in October 2019, was, because of his age, only ordered to undergo 3 years of correctional education, which shocked many people.
Under China’s Criminal Law (2011), if an offender is not criminally punished because he or she has not reached the age of 16, the family or guardian can be required instead to subject the child to discipline. In other words, reformation begins at home, which is invariably the best place. If necessary, the child can also be given shelter by the government, the purpose of which is specified as being “rehabilitation” (Art.17).
Indeed, throughout China’s four jurisdictions, there is a keen awareness that, wherever possible, children should be diverted away from prosecution, at least as a matter of discretion. In Hong Kong, for example, although children aged 10 to 13 are certainly prosecutable, every effort is made, if the offense is not serious, to have their cases dealt with under the Police Superintendents’ Discretion Scheme. This involves a child in the age bracket of 10 to 17 being given an official warning, rather than having to face the full force of the law. Once a warning has been given, the police force’s Juvenile Protection Scheme arranges home visits, designed to ensure the child does not relapse, and starts mixing again with undesirable characters. If a child is deemed to be in need of support services, the police will, with parental consent, refer him or her to the Social Welfare Department.
In Taiwan, the juvenile courts apply the principle “better to teach than punish”, and the emphasis is also on rehabilitation. Judges of the Juvenile Division handle cases involving offenders aged 12 and above, but less than 18, as well as those concerning children under 12 who have committed crimes. If the child is aged at least 14, and has committed a serious or specific crime, such as handling stolen goods, theft or inflicting injury, he or she is prosecutable, and the judge transfers the case to the public prosecutor for consideration. All other cases, however, are treated as reformatory cases, without criminal process, and the child will either receive a reprimand, combined with guidance, or else probationary supervision, or else reformatory education.
In Hong Kong, the incidence of offending by young people remains relatively low. Indeed, after 2011, when 4,350 young persons and 3,343 juveniles were arrested, the number of arrests in these categories steadily declined, year on year. This, however, was halted in 2019, when the protest movement and its armed wing, using propaganda and false narratives, cynically recruited impressionable young people to do their dirty work for them. In consequence, many young offenders, age notwithstanding, are now having to face the full force of the law, which, given the heinousness of their crimes, is unavoidable. Thus, 3,128 young persons and 1,140 juveniles were arrested in 2019, although, with the return of sanity, the crime statistics are once again decreasing, with 2,769 young persons and 1,218 juveniles arrested in 2020. There is no reason to suppose this downward trend will not continue.
Throughout China, therefore, the criminal justice systems approach juvenile delinquency in a similar way. In all four jurisdictions, it is recognized that the public interest requires young offenders, if at all possible, to be diverted away from a life of crime, rather than to be sucked yet further into the criminal process by prosecution and punishment. The immaturity of youth is a fact of life, and pressures and influences are often brought to bear on the gullible which, if not remedied, can result in blighted lives, and may pose long-term threats to society. If offenders can be reformed early in life, while their characters are still malleable, there is no reason to suppose they will not develop into responsible citizens, and this must be the objective in every part of the country.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.
HONG KONG NEWS