Nurturing Pillars of Society: Understanding and Working with the Young Generation in Hong Kong

13 - Juvenile Justice Issues (1): The Age of Criminal Responsibility and the “Family Conference”

13 Juvenile Justice Issues (1): The Age of Criminal Responsibility and the “Family Conference” The following four chapters will address various specific juvenile justice issues. The first of these is the minimum age at which criminal responsibility is assigned in Hong Kong. In the Hong Kong legal system, both Mens Rea (criminal intent) and Actus Reus (the criminal act itself) must be proven to achieve a guilty finding. The former of these is the more difficult to prove. The age at which an individual is considered mature enough to have criminal intent remains controversial and varies from one country to another due to differences in culture and social environment. In Hong Kong, the minimum age of criminal responsibility was set at seven in 1933 and remained so until July 2003. A child below the minimum age of criminal responsibility was presumed to be doli incapax—that is, incapable of committing a crime. The minimum age of responsibility now is 10. The recent change in Hong Kong’s standard came after much doubt and debate about the standard in place. In 1995 the Bar Association of Hong Kong recommended to the Legislative Council that the age be raised by three years. A year later, when the United Nations Committee on Children’s Rights considered the first report on Hong Kong issued by the British government in accordance with Article 40 of the Convention on Rights of Children, it, too, recommended raising the minimum age of criminal responsibility. These actions prompted heated debates on the issue among organisations such as the Law Reform Commission of Hong Kong, the Bar Association, the Hong Kong Committee on Children’s Rights, and various district committees concerned with crime. At the turn of the new century, the Law Reform Commission of Hong Kong produced a report in which it recommended raising the minimum age of responsibility to 10 (Law Reform Commission of Hong Kong, 2000). A Bill Committee on Juvenile Offenders 144 Nurturing Pillars of Society (Amendment) Bill 2001 was set up in July 2002 to examine the issue. The final legislation was passed in March 2003 and the ordinance became law in the following July. ■ At What Age Should One Be Responsible? Given the importance of culture and social factors, we cannot draw a general conclusion as to the minimum age for criminal responsibility that is applicable everywhere. As we consider the question this section poses, it is useful to review theories of human development. Theories of human development The authorities among the scholarly theorists in this field are Eric Erikson and Lawrence Kohlberg. Erikson: The stages of man (1953) Erikson applied a psycho-social perspective to individual development. He divided the process into eight stages, each with developmental tasks specific to it. For children of 6 to 12, the main concern is “industry” versus “inferiority”. That is, the child tries to become industrious in his or her work. External reinforcement is a factor in a child’s success in achieving the goal of “industry”. Failure produces feelings of inferiority. For those aged 12 to 22, the stage is “Individual Identity Vs Identity Confusion”. In this stage the effort is to build identity and a sense of belonging. Failure results in a state of identity confusion. Kohlberg: Cognitive development (1963) Kohlberg was primarily concerned with the individual’s moral development that is more relevant to the present context of discussion. He classified moral development into three levels, each with two stages. Kohlberg put children of 10 to 13 at a level he called conventional morality. To avoid rejection and isolation among others at the same level, the child develops a “good boy/nice girl” orientation; to avoid criticism from those in authority, there is also a “law and order” orientation. These orientations are the two stages of the conventional morality level. The preceding level is called preconventional morality and covers children aged 4 to 10. The two stages in this level are an “obedience and punishment” orientation, in which the individual conforms to avoid punishment, and an “instrumental-relativist” orientation, in which the individual observes customary moral values to The Age of Criminal Responsibility and the “Family Conference” 145 satisfy his or her desires. The third level Kohlberg proposes is termed postconventional morality and covers the passage from adolescence to adulthood, during which the process of establishing moral values is not affected by others (including those in authority). Kohlberg thought that most people...