Possible reform to the law concerning the Causing or Allowing the Death of a Child

Parameter of victim’s “household membership”

12. Thirdly, the prosecution must show that (1) the defendant was a “member” of the same household as the deceased as supplemented by s5(4), and that (2) he had frequent contact with the deceased.

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Double-edged sword –spilling-over of penalties

13. Scrutiny of the new offence reveals that the present definition of “household membership” gives rise to gross injustice where abusive parties may take advantages of the ambiguity of the definition, spilling over the aggravated liability onto the innocent parties.
14. A scenario might be where a parent, say a mother, and her child have moved household and are no longer living together with the abusive father who subsequent caused the death of the child. In the absence of any other evidence pointing to either parent, the fact that the father was not “frequently” closely in touch with the deceased can be decisive to exonerate him based on the two criteria of “membership”, whereas the mother stands a high chance of aggravated sentence.
15. The same difficulty may arise in a wide variety of circumstances. For instance, a violent grandfather lives with the child but is away from home often. In light of the highly intertwined and complex social network in the contemporary Hong Kong society, the combination of potential abuser and negligent household member would be uncountable.
16. These difficulties would be compounded where V live in different households at different time because s4(b) provides for another excused for the abusers to point to another households wherein V stayed at the time of the unlawful act took place.
17. In summary, the new offence is drafted in a way that the aggregated liability it provides is more likely to fall on the parties with whom the victims live with.

Wide range of legal uncertainties

18. The offence creates a large number of uncertain factors that leave much room for legal or factual arguments:
19. For instance: Meaning of “household members” and “frequent contact”; Relationship of defendants with the victims; what “reasonable steps” could be expected of a domestic violence victim.
20. These uncertainties increase the possibility of injustice, in addition to the problem of spilling-over of penalties (above).

Lack of proper defence for abused defendants

21. As shown in the illustrative scenario above, the new offence has been so widely drafted that victims suffering abuse may themselves be charged.
22. The writer agrees with the suggestion made by the Criminal Bar Association (“CBA”) and the Women’s Aid (“WA”) to insert a defence for the abused defendants insofar as their failure to take reasonable steps to protect the victim was caused by their fear of violence.
23. However, the writer cannot agree with the CBA and WA that abused defendants should never be guilty of the offence considering their culpability and the fact that 36% of perpetrators of child physical maltreatment were also victims of spouse battering in 2006
24. The lack of statutory defence would widen the door of injustice. This is especially so where the charge is being laid against an abused young parent who is under the age of 16.

Social Implications – distorting present interpersonal social relationship

25. The new offence has a significant potential of distorting he present interpersonal social relationship in the following ways.
26. On one hand, people will be discouraged from bearing, rising or offering help take care of children or the vulnerable in order to avoid the risk of being caught under such a wide and uncertain offence.
27. This difficulty is particularly relevant to Hong Kong where there are an increasing number of single parents who has relied on relatives or child care workers to look after the children so that he/she can return to work.
28. On the other hand, for obvious reason, people in the society will be encouraged to stay away from, instead of helping, ones showing a certain tendency to violence, where such tendency may originally be ratified through mutual support between people, relatives, couples and friends.

Conclusions

29. The writer understands that the new offence is made with a view to deter members of the society from their abusive acts, and impose an legal duty on persons close to children or the vulnerable to engage into positive steps to protect the children and the vulnerable.
30. The writer notes that ambit of the grounds of conviction provided under the new offence is manifestly larger than the problem faced by Hong Kong Prosecution Division outlined in the Discussion Paper.
31. However, analysis reveals that there is a chance where the potential negative social and legal impact would overweight the intended benefits.
32. The writer suggest that the law should follow the original track of development, and to limit the scope of potential defendants to a predictable categories of people, such as parents, guardians and ones who have assumed the responsibility of care for the children or vulnerable.
33. The writer consider that the legal necessity and the community’s consensus of the desirability for legislation to extend duty of care can only be met by legislation that is consistent with the guarantees of the individual autonomy and civil liberty of Hong Kong People.

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    Relevant law of the South Australia
34. In face of the similar problem confronting Britain and Hong Kong, South Australia has enacted the offence of “criminal neglect” under s14 of the Criminal Law Consolidation Act 1935, which is designed to protect a child under 16 years or a vulnerable adult.
35. In contrast with the UK’s approach, the charge of “criminal neglect” provide broader protection as it can be triggered where the victim has either died or suffered “serious harm”. The maximum penalty is 15 years of imprisonment for victim’s death and 5 years of serious harm. It cannot only criminalized members of the victim’s household, but anyone including parent and guardian who had assumed responsibility for the victim’s care at the time of offence.
36. The objective test, similar to that under s5(d) of DVCVA can also be found in this new offence: The accused must be shown to have been, or ought to have been aware that there was an appreciable risk of serious harm from the unlawful act, and have failed to take reasonable steps to protect the victim from harm. Finally, that failure should be one which was so serious in the circumstances that a criminal penalty was warranted.

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Relevant laws of the PRC

37. Statutory protection for child is found scattered in various provisions. Whereas Art3(2), 27 and 37 of the Convention on the Rights of the Child (“CRC) guarantee protection of children’s well-being and personal development and free from torture or cruel treatment, Art 49(3) of the PRC Constitution (2004) mandates all parents to rear and educate their children.
38. Court action can be brought against child abusers including their parents or guardians under Art 8 of the Law of the PRC on the Protection of Minors.
39. The defendant must be shown to have maltreated or forsaken a person under the age of 18.
40. Where evidence cannot establish which of the parents had committed the offence, it is possible for either or both of them to be convicted for failing to fulfil their responsibilities of guardianship or bringing up the minors. Whether or not the court will uphold the liability depends arguably on the prevalent Party’s policy at the time of trial.

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