V. Legal proceedings against a child
Whilst the Convention defines a child as a person who has not attained 18 years of age, criminal offences committed by persons aged 16 to 18 are dealt with in adult courts in Hong Kong. Even so, the emphasis for young offenders is still upon long term reform and rehabilitation. Section 109A of the Criminal Procedure Ordinance , Cap. 221 provides that unless the offence is one that can only be dealt with by a sentence of imprisonment, for example murder, persons aged over 16 and under 18 shall not be sentenced to imprisonment unless no other method of dealing with them is appropriate.
A. Criminal Liability
Section 3 of the Juvenile Offenders Ordinance (JOO), Cap. 226 , contains an irrebutable presumption that a person under 10 years of age cannot commit a criminal offence.
B. The Juvenile Court
Section 3A of the JOO established the Juvenile Court. A juvenile court has jurisdiction over charges against a child or young person other than a charge of homicide. The principle is to separate young offenders from older offenders. The emphasis with young offenders is upon long term reform and rehabilitation rather than simply punishment.
Under section 2 of the JOO a “child” is defined as a person under the age of 14 years whilst a “young person” is a person of 14 years of age or over, but under 16 years of age. No criminal charge against a child or young person shall be heard by a court of summary jurisdiction which is not a juvenile court. However, where a child or young person is charged together with a person who has attained 16 years of age, that charge will be heard before an adult court. The juvenile court only has jurisdiction over persons who have not attained 16 years of age. As joint offenders should be tried together the charge will be dealt with in the adult court.
However section 3F(1) of the JOO provides that a person under 16 years of age convicted in an adult court may be remitted to the Juvenile Court for sentence unless the convicting court is satisfied that it would be undesirable to do so. In most cases it is in the best interests of a child or young person to be remitted to the juvenile court for sentence as that court is especially equipped to deal with persons aged between 10 and 16.
As part of the long term reform and rehabilitation approach, juvenile courts sit in private. Under section 3D(3) of the JOO no person shall be present at any sitting of a juvenile court other than officers of the court; parties to the case before the court, their solicitors and counsel, and witnesses and other persons directly concerned in that case. Bona fide representatives of newspapers or news agencies may also be present. Even so, any representative of a newspaper or news agency may be excluded from any sitting if the court considers this is necessary in the interests of the defendant.
As well as sitting in private, there are substantial restrictions on what may be published about events in the juvenile court. Under section 20A of the JOO no written report or broadcast of any proceedings in the juvenile court, or an appeal from a juvenile court which identifies the defendant or which would tend to identify the defendant, may be published. The court may however dispense with the restrictions on identification if it is satisfied it is in the interests of justice to do so. This will depend on the circumstances of the particular case.
Section 6 of the JOO also provides that offenders under 16 years of age are to be kept separate from adult offenders both in court and on the way to and from court.
The JOO provides that no young person shall be sentenced to imprisonment if he/she can be suitably dealt with in any other way. This does not mean that persons under 16 years of age cannot be sentenced to imprisonment where the circumstances of the offence and the offender make imprisonment appropriate and deserved. It does mean however that where loss of liberty is ordered this loss of liberty will be in the form of detention in a training centre, detention centre, or a rehabilitation centre, as those places are directed towards long term reform and rehabilitation. Where a person under 16 years of age is sent to prison they must be kept separate from adult prisoners.