A. The Convention on the Rights of the Child

The Convention on the Rights of the Child (“the Convention) was adopted by the United Nations (Resolution 44/25) in 1989. The Convention recognizes and protects the fundamental freedoms and inherent rights of children. It was extended to Hong Kong in 1994. For details on the background of the Convention, please see Appendix I .

B. Who is “a child”?

Under Article 1 of the Convention,  a child is defined as a ” human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.”

In Hong Kong, the age of children may vary under different legislations.

C. Some important rights conferred to children under the Convention

Children’s rights set out in the Convention include:

1. 1. the state “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies” to act in the best interests of the child as a primary consideration. (Article 3(1))
   2. the right to life, survival, and development  (Article 6);
   3. the right to develop through education and the right to participation, which embodies freedom of expression and freedom of thought, conscience and religion;
   4. the right of the child to the enjoyment of the highest attainable standard of health (Article 24);
   5. the right to education. States Parties are required to make primary education compulsory and available free to all. States Parties are required to encourage the development of different forms of secondary education, including general and vocational education, to make them available and accessible to every child, and to take appropriate measures such as the introduction of free education and offering financial assistance to those in need (Articles 28 and 29);
   6. the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.”(Article 32) This entails taking legislative, administrative, social and educational measures to ensure implementation of Article 32. In particular States Parties shall “ a) Provide for a minimum age or minimum ages for admission to employment;  b) Provide for appropriate regulation of the hours and conditions of employment; and c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.”
   7. the right to protection  from all forms of sexual exploitation and sexual abuse. States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: “a) The inducement or coercion of a child to engage in any unlawful sexual activity; b)The exploitative use of children in prostitution or other unlawful sexual practices; c) The exploitative use of children in pornographic performances and materials.” (Article 34)
   8. the rights of children facing allegations of criminal offences. In addition to observing the basic principles of presumption of innocence and the right of silence, States Parties undertake to institute laws, procedures, authorities and institutions specifically applicable to children charged with criminal offences. This includes a minimum age for criminal liability. Measures such as care guidance and supervision orders, counselling, probation, foster care, education and vocational training programmes should be available as alternatives to institutionalising children. (Article 40)

D. Enforcing the Convention

States Parties have a moral obligation to adhere to, and implement, the rights set out in the Convention. This is emphasised by the constant use of such terminology as “undertake”, “shall ensure ” and “ recognise ”.  By acceding (agreeing)to the Convention, States Parties are obligated to make sure that their legislation, policies and practices conform to the standards set out in the Convention and make those standards a reality for all children within their society.

As there is no direct enforcement machinery in the Convention, education and a culture of voluntary compliance based on knowledge and understanding is fundamental to the effectiveness of the Convention.

In Article 17 of the Convention States Parties “ recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.” Article 17 should be read together with Article 13. Article 13 recognises the child’s right to freedom of expression, which includes the right to receive information. In particular, States Parties are encouraged to use the mass media to spread information about the rights contained in the Convention. Article 17 emphasises the importance of books written for children can play in bringing about a culture of respect for children’s rights.

The progress made by States Parties on their implementation of the Convention is monitored by a Committee on the Rights of the Child (“CRC”) established under Article 44 of the Convention. States Parties undertake to report to the CRC within two years of the Convention coming into force in the State Party concerned, and subsequently every five years. The CRC, which sits in Geneva and usually meets once a year, is an internationally elected body of 18 experts of high moral standing and recognised competence in the fields covered by the Convention. Election to the Committee is by secret ballot from a list of persons nominated by States Parties. Members are elected for four years and are eligible for re-nomination.

The CRC reviews and comments upon the reports submitted to it by States Parties.  States Parties are encouraged to implement measures, and to create and develop the necessary institutions, to meet the aims and objectives of the Convention.  Under Article 45 of the Convention, the CRC can ask for advice on the implementation of the Convention from other specialised United Nations organs or organisations such as the United Nations Children’s Fund (“UNICEF”), a United Nations organisation dedicated exclusively to protecting and improving the rights of children worldwide. This emphasises the universal approach of the Convention to enhancing and protecting children’s rights.

E. How Hong Kong enforces the Convention

The Convention has not been incorporated directly into the law of Hong Kong by means of an Ordinance nor is there a Children’s Commissioner or Government official with singular responsibility for enhancing and protecting the rights of children. As the Convention has not been incorporated into the law of Hong Kong it is not possible to apply to a court to force the government to comply with the obligations contained in the Convention.

There are, however, a number of Ordinances in place intended to enhance the rights of children and protect them from abuse. Although there is no discrete definition of child abuse under Hong Kong law, child abuse is being defined as any act of commission or omission that endangers or impairs the physical / psychological health and development of an individual under the age of 18 by the Social Welfare Department. (Child abuse is a general term used to describe various acts and degrees of abuse of children. It includes physical, sexual, psychological forms of abuses, and neglect.

Abuse amounting to criminal conduct is a particular matter for the police, though non-government agencies, such as the Hong Kong Society for the Protection of Children and schools, have an important role to play in detecting and protecting children from abuse. The Director of Social Welfare (“The Director”) has an integral role in the protection of children. Where necessary, and in the best interests of the child, the Director can intervene to remove a child from his/her family if that child is being abused or neglected, or their development is being avoidably prevented by the family.

The Hong Kong Police Force has set up the Child Protection Policy Unit (“CPPU”). The CCPU aims to combat domestic violence, child abuse, sexual violence, elder abuse and child pornography. It has close links to other government departments and non-government organisations. The CCPU is responsible for police force policies on handling the aforesaid matters. Its functions include monitoring local and overseas trends in child abuse, sexual violence, juvenile crime and child pornography. In particular, it can assist in the making of new laws aimed at combating these activities. One of the important activities performed by the CCPU is to work with the Social Welfare Department (“SWD”) on child protection investigation techniques. Another important activity is to organise training on aspects of child abuse, sexual violence and juvenile crime with other government departments and non-government organisations.

There are a number of Ordinances particularly relevant to the protection of children in Hong Kong. These include:

• the Evidence Ordinance , Cap. 8 ;
• the Employment Ordinance , Cap. 57 , sub-legislations the Employment of Children Regulations , Cap. 57B and the Employment of Young Persons Regulations , Cap. 57C ;
• the Crimes Ordinance , Cap. 200 ;
• the Offences Against the Person Ordinance , Cap. 212 ;
• the Protection of Children and Juveniles Ordinance , Cap. 213 ;
• the Criminal Procedure Ordinance , Cap. 221 and sub-legislation the Live Television Link and Video Recorded Evidence Rules , Cap. 221J ;
• the Education Ordinance , Cap. 279 ;
• the Adoption Ordinance , Cap. 290 ;
• the Child Abduction and Custody Ordinance , Cap. 512 ; and
• the Prevention of Child Pornography Ordinance , Cap. 579 .

A. Physical violence

The Crimes Ordinance , Cap. 200 , and the Prevention of Child Pornography Ordinance (“PCPO”), Cap. 579 , contain a number of offences designed to protect children against sexual abuse. These offences are apposite to Convention Articles 34, 35 and 36 relate to protecting children against sexual exploitation and abuse, involvement in unlawful sexual activity, prostitution, exploitation in pornographic performances and materials and abduction and trafficking.

A. Unlawful sexual activities performed on children

Relevant offences in the Crimes Ordinance can be found in Appendix II .

Consent

The Crimes Ordinance (CO) contains offences designed to protect persons under 16 years of age from themselves. Under section 122 (indecent assault) for example, a person under 16 years of age cannot consent to an act that would otherwise be unlawful under the section. Indecent assault is the application of force in circumstances of indecency. Sexual activity, short of intercourse with a person under 16 years of age is an offence even if the person under 16 consented to such activity. Ignorance of the age of the person indecently assaulted is no defence.

Under section 123 of the CO , in the case of sexual intercourse with a girl under 13 years of age, and under section 124 of the CO , sexual intercourse with a girl under 16 years of age, consent is similarly no defence. Both sections are intended to protect girls under 16 years of age from themselves and avoid pregnancy at too young an age. A person’s lack of knowledge of the age of the girl concerned is similarly no defence. Section 123 offences are punishable with imprisonment for life. Section 124 offences are punishable with imprisonment for five years. Particularly with section 123 and 124 offences defendants’ rights must be balanced against the interests of protecting the child and the interests of society. Suggestions that somehow the child encouraged or instigated the sexual activity should have no weight either as a defence or in mitigation, particularly where the defendant was aware of the age of the girl, had groomed the girl for sexual activity, was in a position of responsibility or the circumstances were such that the defendant should have enquired about the age of the girl concerned.

B. Abduction of an unmarried girl

Under section 126 of the CO it is an offence to take an unmarried girl under the age of 16 out of the possession of her parent or guardian without lawful authority or excuse. This offence is punishable by imprisonment for 10 years. This offence recognises the importance of persons, particularly females under the age of 16, being with their parent or guardian. Section 126 of the CO is directed towards preserving the family unit. It also recognises and projects parental rights and the importance of the family as the basic unit of society upon which so much emphasis is placed by the Convention.

Section 127 of the CO makes it an offence to take an unmarried girl under the age of 18 out of the possession of her parent or guardian against the will of the parent or guardian with the intention that she shall have unlawful sexual intercourse with men or a particular man. Unlawful sexual intercourse in this context means sexual intercourse outside of marriage. Again this section is designed both to protect the girl and preserve the family unit. The section covers the situation where the girl is a willing participant in the proposed sexual intercourse. There is no need that sexual intercourse should actually occur: it is the intention with which the girl is taken out of the possession of her parent or guardian that matters. The offence is punishable by imprisonment for seven years.

C. Sex tourism and extra-territorial sexual crimes related to children

In accordance with objectives of the Convention, Hong Kong has amended the Crimes Ordinance , Cap.200 , to add an extra-territorial reach in relation to sexual tourism by adding a new section to the Ordinance, section 153P . Under section 153P , a person who commits any act outside of Hong Kong against a child that would have amounted to an offence specified in Schedule 2 of the Crimes Ordinance had it been committed in Hong Kong, commits an offence if he/she is either: (a) a permanent resident of the HKSAR or ordinarily resides in the HKSAR; or (b) the victim is a permanent resident or ordinarily resides in Hong Kong. Schedule 2 offences range from sexual intercourse with girls under 13 and under 16, causing or encouraging prostitution of, intercourse with, or indecent assault on a girl or boy under the age of 16, to administering drugs to obtain or facilitate an unlawful sexual act.

The purpose, extent and reach of the section, and its compatibility with the Basic Law of the HKSAR and the Hong Kong Bill of Rights, is demonstrated by a decision of the Court of Appeal in HKSAR v Lee Kwok Wah Francis . The defendant was convicted of  three offences of sexual intercourse  with a girl under 16 years of age contrary to sections 124(1) and 153P(1) of the Crimes Ordinance , Cap. 200 . He was also convicted of indecent conduct towards a child under the age of 16 years, contrary to sections 146(1) and 153P(1) of the Ordinance and of indecent assault upon another girl  contrary to sections 122(1) and 153P(1) of the Crimes Ordinance . The offences occurred at a children’s home in Mainland China where the two victims resided.

On appeal he argued that the extra-territorial effect of section 153P discriminated against him as a Hong Kong permanent resident by violating the principle of equality before the law under Article 25 of the Hong Kong Basic Law and his entitlement to rights without distinction and protection against discrimination under Articles 1(1) and 22 of the Hong Kong Bill Of Rights .

In dismissing the appeals the Court of Appeal ruled that the United Nations Convention on the Rights of the Child was intended to protect children against sexual exploitation. Hong Kong was required to enact legislation to protect children against sexual exploitation. This included legislating against sexual tourism. By criminalising sexual abuse of children which occurred outside Hong Kong, section 153P was legitimately striking at paedophiles who committed such acts outside Hong Kong and then returned to the SAR. The section was legitimate and proportionate.

Article 34 of the Convention requires that children should be protected from all forms of sexual exploitation and sexual abuse. As a consequence Hong Kong enacted the Prevention of Child Pornography Ordinance (PCPO), Cap. 579 , which came into operation on 19 December 2002. The PCPO prohibits child pornography, pornographic performances by children and child sex tourism. It strengthens the protection of children by criminalizing the printing, making, producing, reproducing, copying, importing, exporting, publishing, possessing and advertising of child pornography.

A. Definitions

Section 2 of the PCPO defines child pornography as:

“(a) a photograph, film, computer-generated image or other visual depiction that is a pornographic depiction of a person who is or is depicted as being a child, whether it is made or generated by electronic or any other means, whether or not it is a depiction of a real person and whether or not it has been modified; or

(b) anything that incorporates a photograph, film, image or depiction referred to in paragraph (a),

and includes data stored in a form that is capable of conversion into a photograph, film, image or depiction referred to in paragraph (a) and anything containing such data.”

Pornographic depiction is defined as:

“(a) a visual depiction that depicts a person as being engaged in explicit sexual conduct, whether or not the person is in fact engaged in such conduct; or

(b) a visual depiction that depicts, in a sexual manner or context, the genitals or anal region of a person or the breast of a female person,

but, for the avoidance of doubt, a depiction for a genuine family purpose does not, merely because it depicts any part of the body referred to in paragraph (b), fall within that paragraph .”

B. Offences

The PCPO prohibits the production, possession and publication of child pornography. The Crimes Ordinance has been amended in accordance with the new PCPO to prohibit the use, procurement or offer of persons under the age of 18 for making pornography or for live pornographic performances. It also extends the application of certain sexual offence provisions of the Crimes Ordinance to acts committed against children outside Hong Kong, and prohibits the making of arrangements relating to the commission of those acts and the advertisement of such arrangements.

Section 3 of the PCPO crates a number of offences:

(1) Any person who prints, makes, produces, reproduces, copies, imports or exports any child pornography commits an offence and is liable—
(a) on conviction on indictment to a fine of $2,000,000 and to imprisonment for 8 years; or
(b) on summary conviction to a fine of $1,000,000 and to imprisonment for 3 years.

(2) Any person who publishes any child pornography commits an offence and is liable—
(a) on conviction on indictment to a fine of $2,000,000 and to imprisonment for 8 years; or
(b) on summary conviction to a fine of $1,000,000 and to imprisonment for 3 years.

(3) Any person who has in his possession any child pornography (unless he is the only person pornographically depicted in the child pornography) commits an offence and is liable—
(a) on conviction on indictment to a fine of $1,000,000 and to imprisonment for 5 years; or
(b) on summary conviction to a fine of $500,000 and to imprisonment for 2 years.

(4) Any person who publishes or causes to be published any advertisement that conveys or is likely to be understood as conveying the message that any person has published, publishes, or intends to publish any child pornography commits an offence and is liable—
(a) on conviction on indictment to a fine of $2,000,000 and to imprisonment for 8 years; or
(b) on summary conviction to a fine of $1,000,000 and to imprisonment for 3 years.

C. Defences

There are a number of possible defences under section 4 of the PCPO . They range from the defendant showing that the alleged pornography has artistic merit, or that possession was for a genuine educational, scientific or medical purpose, to the defendant’ showing that he/she believed that the person pornographically depicted was not a child when originally depicted and the person was not depicted as a child. The burden of establishing the section 4 defences is upon the defendant.

D. Sentencing

The Court of Appeal laid down sentencing guidelines for possession of child pornography in Secretary for Justice v Man Kwong Choi and Secretary for Justice v Ho Yan Kiu .

Whilst the court was only concerned with  possession of child pornography contrary to section 3(3) of the PCPO , the court noted that the PCPO created four categories of offences relating to child pornography: (a) printing, making production, reproduction, copying, import and export ( sections 3(1) ), (b) publication ( sections 3(2) ), (c) possession( section 3(3) )  and (d) publication or causing to be published any advertisement that conveys or is likely to be understood as conveying the message that a person has published, publishes or intends to publish child pornography ( section 3(4) ).

The Court alsonoted, per Hon Ma CJHC, that the roots of the PCPO lay in Article 34 of the Convention. As States Parties to the Convention undertook to protect the child from all forms of sexual exploitation the main purpose of sentencing would be deterrence. Therefore, sentencing should take account of the victims of child pornography and the interests of society generally. Deterrence is particularly significant when sentencing for possession of child pornography.

His Lordship stated in the judgment that “The harm to children cannot be stressed enough. For the children depicted in child pornography, they are degraded, dehumanized, traumatized and lose all semblance of dignity. For other children, the prevalence of child pornography only encourages paedophiles and their activities. One of the many dangers is that vulnerable children may regard the type of sexual conduct seen in child pornography as being in some way normal, or worse still, expected of them. Many of the victims grow up mentally scarred. There may sometimes even be evidence of physical injury to the private parts of children.”

The court laid down guidelines for conviction after a trial for the possession of child pornography involving real children as: –

Level 1

The least serious level is Level 1 (“Images depicting erotic posing with no sexual activity”). There, the effect on the children in the depictions might be said to be much less harmful than in the case of Levels 2 to 4, which, it may be assumed, will be substantially more harmful. In the case of possession of Level 1 depictions, it may be that a community service order, probation or fine is appropriate where the number is small (say 20 or less). Where the numbers are large or the depictions are extremely suggestive, terms of imprisonment from 1 month to 6 months will be appropriate.

Level 2

In the case of Level 2 (“sexual activity between children, or solo masturbation by a child”), this is already much more serious than mere posing. Here, depending on the number of depictions, an immediate custodial sentence of up to 9 months will be appropriate. Even the possession of a few depictions at this level will generally attract a custodial sentence.

Level 3

For Level 3 cases (“non-penetrative sexual activity between adults and children”), the degree of seriousness is increased even further. Again, depending on the numbers involved, sentences of between 6 and 12 months will be appropriate.

Level 4

The Court considered Level 4 cases (“penetrative sexual activity between children and adults” and “sadism or bestiality”) as meriting the most serious treatment. Here, at Level 4, the range of custodial sentences should generally be from 12 months (even for a few images) to 36 months.

Whilst accepting that these guidelines might be seen as harsh, the court stressed they needed to be as the main consideration was the protection of vulnerable children. Custodial sentences should be the norm for first offenders except in the most unusual circumstances,

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.

Child victims, especially victims of sexual abuse, are particularly vulnerable to the way in which the criminal justice system has traditionally operated, particularly at trial. It is, to put it mildly, an ordeal for the child victim of violence or sexual abuse to face his/her abuser in open court and be subjected to traditional forms of cross examination. Protection must be afforded to children in such situations if their best interests are to be protected. Articles 3 and 4 of the Convention are relevant here.

Article 3 of the Convention provides: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 4 of the Convention provides that “States Parties shall undertake all appropriate legislative, administrat ive, and other measures for the implementation of the rights recognized in the present Convention.” That involves devising procedures to enable child victims to give evidence in court in a way which allows substance and truth to prevail.

The Evidence Ordinance , Cap. 8 and the Criminal Procedure Ordinance , Cap. 221 provide some protection for children and juvenile victims of certain sexual or physical offences when they are giving evidence in court as prosecution witnesses. This is done by shielding them from the full rigour of the traditional trial format. These provisions recognise and attempt to reduce the trauma that child and juvenile victims of physical and sexual abuse face when giving evidence as prosecution witnesses. Inevitably this means some reduction in the rights of defendants, but these reductions are proportional and objectively justified in the interests of protecting children when giving evidence in court.

A. Affirmation by a child who is giving evidence in Court

Under section 4 of the Evidence Ordinance a child’s evidence in criminal proceedings must be given unsworn. A child for this purpose is a person under 14 years of age. The unsworn evidence of a child under 14 years of age shall be capable of corroborating the evidence of any other person whether that evidence is given sworn or unsworn. The common law system is sometimes criticised as placing too much reliance on procedural correctness. Section 4 of the Evidence Ordinance addresses this criticism with respect to the evidence given by children under 14 years of age: concentration is upon the substance of the child’s evidence in the context of the evidence as a whole. The question is whether or not the child’s evidence is worthy of belief to the standard required in the context of all the evidence in the case.

B. Special procedures for vulnerable witnesses

A new part, called Part IIIA , sections 79A to 79G , was added to the Criminal Procedure Ordinance (CPO) in 1995. Section 79B of the CPO enables a court, either on application or of its own volition, to allow a child, other than the defendant, to give evidence and be cross examined by way of a live television link. This is done where the offence is an offence of sexual abuse, or cruelty, or an assault on, or injury to or the threat of injury to,a person and this is done whether the offence is tried on indictment or tried summarily. An offence of sexual abuse is an offence against Part VI or Part XII , other than sections 126 , 147A and 147F of the Crimes Ordinance or an offence against section 3 of the Prevention of Child Pornography Ordinance . An offence of cruelty means an offence against section 26 or 27 of the Offences against the Person Ordinance . As a result, each of Hong Kong’s trial courts can allow a child to give evidence in these situations by way of a live television link.

For the purposes of section 79B (live television link), in a case of sexual abuse a child is a person under 17 years of age, and in a case where the section applies and it is not a case of sexual abuse, a child is a person under 14 years of age. A live television link is “a system in which a courtroom, and another room located in the same premises as the courtroom, are equipped with, and linked by, a closed circuit television system that is capable of allowing persons in the courtroom to see and hear persons in the other room and persons in the other room to hear, or see and hear, persons in the courtroom” .

Sections 79B and 79C of the CPO must be read together with the Live Television Link and Video Recorded Evidence Rules (LTLVRER), Cap. 221J which govern giving evidence through a live video link ( section 79B of the CPO ) and giving evidence by way of a pre-recorded video interview ( section 79C of the CPO ).

A witness giving evidence through a live video link will be in a separate room to persons in the courtroom. Those persons can see the witness through the visual link and the witness can see persons in the courtroom. With the leave of the court, the LTLVRER allows child witnesses to be accompanied by a support person when giving evidence through a live video link. That support person should not be a witness in the case or have been involved in the investigation of the case.

In cooperation with the police, the Social Welfare Department has established a witness support programme for child witnesses. These measures are designed to reduce the trauma of giving evidence and to create some separation between the child and the defendant. Suggestions have been made that the defendant may be prejudiced as the television link weakens the impact of cross examination. This point was discussed in the court case R v. Chan Bing For . The Court of Appeal there accepted that the common law principal of ‘eyeball to eyeball’ confrontation had been diluted and that there were sound reasons for this with vulnerable witnesses.

Sections 79C and 79D of the CPO allow a pre-recorded video record of an interview of a child witness to come into evidence in criminal trials for specified offences provided leave is obtained from the court. Applications to use a pre-recorded video interview are governed by the LTLVREO . The child is interviewed by a police officer or by a social worker or clinical psychologist employed by the government ( section 79C(1) ).

A child for the purposes of sections 79C and 79D is, in an offence of sexual abuse, a person under 17 years of age, or if under that age when the video recording was made, is under 18 years of age at the time of trial. Where the offence is an offence of cruelty or involves an assault, injury or threat of injury, a child is a person under 14 years of age, or a person who was under that age when the video recording was made, and is under 15 years of age at the time of trial.

Provided leave is obtained, the video recording becomes evidence of any fact stated in the recording upon which the child could have given direct oral evidence. The recording stands as evidence in chief. The child is called as a witness by the party putting the recording into evidence. The child may not be questioned in chief on any matter which in the court’s opinion has been adequately dealt with in the recording. After the recording has been shown the child can be cross examined, usually through a live television link. An application for leave to use the pre-recorded interview during a trial will normally accompany an application to give evidence through a live television link.

Applications to use a pre-recorded video interview as evidence in chief at the trial must be accompanied by the recording it is proposed to use. The notice of application must include:  the name of the defendant and the offence or offences charged;  the name and date of birth of the witness in respect of whom the application is made; the date on which the video recording was made; a statement that, in the opinion of the applicant, the witness is  willing and able to attend the trial for cross-examination;  a statement of the circumstances in which the video recording was made; and  the date on which the video recording was disclosed to the other party or parties.

As the purpose of these provisions is to lessen the trauma of the child giving evidence, applications for leave to give evidence through a live television link, and applications to use a pre-recorded video interview, will normally be granted unless the witness will not be available for cross examination or the interests of justice require the recording to be excluded.

“Interests of justice” is a vague term. In deciding whether or not to allow the recording to be used the court carries out a balancing exercise. The interests of protecting the child witness, and the public interest in ensuring that persons who are guilty of the offences covered by the procedure are convicted, are balanced against the interests of the defendant in defending the charge. In that balancing exercise, the court will consider the circumstances under which the recording was made. Care must be taken when interviewing the child to avoid leading questions (questions which contain the answer within the question) or which suggest what must have happened rather than ask for information about what happened.

Similarly the court will be alert to any suggestion that the child has been coached or is being prompted during the interview. The court has the power to direct that a part of the pre-recorded record should be excluded in the interests of justice. In that event the original recording will be edited in accordance with Practice Direction 9.5 Evidence by Way of Live Television Link or Video Recorded Testimony .

Article 32 of the Convention recognises the right of the child to be protected from economic exploitation, from performing hazardous work, and from work which interferes with education or which is harmful to health or to their physical, mental, spiritual, moral or social development. States Parties are required to take positive action to provide for a minimum age for employment, to regulate hours of work and conditions of employment and provide appropriate penalties to ensure the effectiveness of Article 32.

The Employment Ordinance , Cap. 57 , the Employment of Children Regulations , Cap. 57B and the Employment of Young Persons (Industry) Regulations , Cap. 57C contain provisions about the employment of children. For the purposes of the Employment Ordinance , the Employment of Children Regulations and the Employment of Young Persons (Industry) Regulations , a child is a person under 15 years of age. A young person is a person who has attained 15 years but not the age of 18 years.

For more information about youth as employees, please click here .

Article 19 of the Convention requires States Parties to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child” . Protective measures should include social programmes to support the child and those caring for the child for preventing, identifying, reporting, referring, investigating, treating and for following up on child maltreatment by judicial involvement where necessary.

A. Appointment of a guardian by the Court

The Protection of Children and Juveniles Ordinance (PCJO), Cap. 213 is a key Ordinance in the protection of children and juveniles. It is a close companion to the Juvenile Offenders Ordinance. The words “child” , “young person” and “juvenile court” have the same meaning in both ordinances. A child is a person under 14 years of age. A young person is a person who has attained 14 years of age but is under 16 years of age. A “juvenile” for the purposes of the PCJO is a person of 14 years of age or upwards but under the age of 18 years. A juvenile court for the purposes of the PCJO is a juvenile court according to the Juvenile Offenders Ordinance .

Under section 34 of the PCJO , a juvenile court, either on its own volition or upon the application of the Director of Social Welfare (“the Director”), which is satisfied that any person of or above the age of seven years brought before the court, or any other person under the age of seven years, is a child or juvenile in need of care or protection, may appoint the Director to be the legal guardian of such child or juvenile. Alternatively, the court may commit the care to any person, whether a relative or not, who is willing to undertake the care of the child, or to any institution which is willing to do so. The court can also order parents or guardians to enter into a recognizance to exercise proper care and guardianship or place the person for a specified period, not exceeding three years, under the supervision of a person appointed for the purpose by the court.

The PCJO enables police officers and social workers to take action to protect a child or juvenile in need of care or protection.  Police officers and social workers authorised by the Director have the responsibility to intervene to protect a child or juvenile in need of care or protection. According to section 34(2) of the PJCO , a child or juvenile in need of care or protection is a child or juvenile who:

• has been or is being assaulted, ill-treated, neglected or sexually  abused;
• or whose health, development or welfare has been or is being neglected or avoidably impaired; or
• whose health, development or welfare appears likely to be neglected or avoidably impaired; or
• who is beyond control, to the extent that harm may be caused to him or others;  and
• who requires care and protection.

In those situations a care or protection order may be sought from the Juvenile Court. In deciding whether or not to apply for a care or protection order all the circumstances of the child, his or her family, and any possible adverse long term effects on the child or juvenile, must be considered.

Article 9 of the Convention requires States Parties to ensure that children are not separated from their parents except when the competent authorities decide that separation is necessary for the best interests of the child, for example in cases of neglect or abuse by the parents.

Article 3 of the Convention provides “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Not every suspected child abuse or child neglect case will therefore warrant an application for a Care or Protection Order under the PCJO . The possible adverse effects of care and protection proceedings make it realistic for the Director and the police to solicit the co-operation of parents and careers before resorting to action to remove a child from the family.

B. The Guardianship of Minors Ordinance

The Guardianship of Minors Ordinance , Cap. 13 plays an important role in arrangements for the long term welfare of children. Sections 6(1) and 6(2) of the Ordinance enable parents and current guardians to appoint other people to act as future guardians for their children who are still minors in the event of the death of the parents or current guardians.  In April 2012, the Labour and Welfare Bureau of the HKSAR Government prepared a standard appointment form with explanatory notes to assist with appointing guardians. That form should be used if you need to appoint a guardian to look after your children in the event of your death. It may be accessed here ).

A separate form is needed for each appointment of a guardian. The appointment form must contain the names, addresses, and identity card numbers of the persons making the appointment, and the names and identity card numbers of the person(s) being appointed as guardian or guardians. The appointment form must confirm that in making the appointment the views of the minor have been taken into account so far as this is practicable with regard to the minor’s age and ability tounderstand.  A guardian, or guardians, can be appointed to act together with a surviving parent. An appointment may be made by two or more persons acting jointly.

Appointment forms must be dated and signed either by the person(s) making the appointment or by another person at the direction, and in the presence, of the person(s) making the appointment; and attested by two witnesses. An appointment has no effect unless the appointed person(s) accept(s) the office either expressly or impliedly by conduct. Ideally the person appointed should sign the appointment form to confirm his/her acceptance of the appointment.

A person appointed as the guardian of a minor has, on assuming guardianship, parental rights and authority with respect to the minor. A guardian appointment terminates when the child reaches 18 or dies. It similarly ends if the guardian dies or is removed from guardianship by the court. A guardian appointed by a parent or guardian may be removed by the court if the court thinks this is in the best interests of the minor. When considering appointing a guardian, both the relationship between the child and the intended guardian(s), and the child’s views on the intended appointment, should be considered so far as this is practicable depending on the child’s age and ability to understand.

1. When and how guardianship takes effect

Under section 7 of the Ordinance a person appointed by a parent or guardian as the guardian of a minor automatically assumes guardianship over the minor upon the death of the appointing parent or appointing guardian if:-

• the appointing parent or appointing guardian has a custody order over the minor immediately before he or she dies; or
• the appointing parent or appointing guardian lived with the minor immediately before dying AND
• the minor does not have any surviving parent or other surviving guardian when the appointing parent or appointing guardian dies.

In all other cases, a person appointed as aguardian may, after the appointing parent or appointing guardian dies, apply to the court to assume guardianship over the minor. In those cases the court may order the person to act jointly with the surviving parent or surviving guardian; to act as the guardian after the minor no longer has any parent or guardian; to act as the guardian of the minor at a time of, or after the occurrence of, an event specified by the court; to be removed as a guardian; or to act as the guardian of the minor to the exclusion of the surviving parent or surviving guardian.

2. Disputes between joint guardians

Joint guardians should be appointed with sufficient care that they can work together in the best interests of the children. When considering whom to appoint as a guardian, thought must be given to the relationship the child has with the intended appointee, the child’s views about the intended appointment, and how that relationship is likely to develop over time. Under section 9 of the Ordinance, where two or more persons act as joint guardians of a minor and they are unable to agree on any question affecting the welfare of the minor, any of them may apply to the court for its direction, and the court may make such order regarding the disagreement as it may think proper. This could include the removal of a guardian, as the welfare of the child is the first and paramount consideration. Under section 21 of the Ordinance, where one of the disagreeing joint guardians is the surviving parent, the court can make such order regarding the custody of the minor; and the right of his or her surviving parent to have access to the minor, as the court thinks fit having regard to the best interests of the minor. Orders can be made requiring the surviving parent to contribute to the financial support of the child depending upon the means of the surviving parent.

Matters relating to Guardianship and attendant disputes are heard in the District Court, though they may be removed to the Court of First Instance on the application of either party under section 24 of the Ordinance if the Court of First Instance thinks this is appropriate in the particular case involved.

3. Revocation of guardian appointment

An appointment of a guardian under the Ordinance revokes any earlier appointment (including one made in a will) made by the same person in respect of the same minor, unless the purpose of the later appointment is to appoint an additional guardian. An appointment (including one made in a will) is revoked if the person who made the appointment revokes it by a written and dated document that is signed either by the person who made the appointment or by another person, at the direction, and in the presence, of the person who made the appointment and is attested by two witnesses.  An appointment under the Ordinance (other than one made in a will) is revoked if,  with the intention of revoking the appointment, the person who made it destroys the document by which it was made or instructs any other person to destroy the document in the person’s presence. If an appointment under the Ordinance is made by two or more persons acting jointly the appointment may be revoked by any of them. The person who revokes the appointment must notify all other persons who jointly made the appointment of the revocation.

C. Custody of children

In Hong Kong, proceedings relating to the custody of children are contained in:

• the Guardianship of Minors Ordinance (GMO), Cap. 13 ;
• the Matrimonial Causes Ordinance (MCO), Cap. 179 ;
• the Matrimonial Proceedings and Property Ordinance (MPPO), Cap. 192 ; and
• the Separation and Maintenance Orders Ordinance , Cap. 16 .

1. The Guardianship of Minors Ordinance

The GMO governs court proceedings relating to the custody and upbringing of children. Under the GMO the welfare of the child in question is to be the first and paramount consideration of the courts. Under section 3 of the Ordinance, in any proceedings before any court relating to the custody or upbringing of a minor or the property of a minor, the best interests of the minor are the first and paramount consideration. Due  consideration should be given to the views of the minor where it is practical to do so having regard to the minor’s age and understanding and to available information from the Director of Social Welfare.The rights and authority of the mother and father of a child are equal. Where the child is born out of wedlock however, the mother has all the parental rights and authority. Even so, an unmarried father may be granted some or all of the rights and authority he would have had as a father had the child been born legitimately (that is, had he and the mother been married).

2. Custody of children in matrimonial proceedings

The MCO overns divorce whilst the MPPO deals with ancillary and other relief in matrimonial proceedings. Section 19 of MPPO states that the court may make such order as it thinks fit for the custody and education of a child in matrimonial proceedings such as divorce. Sole custody orders are currently the norm rather than the exception. Under a sole custody order the child lives with one parent, the custodial parent, who has the right to make the decisions regarding the upbringing of the child. The non-custodial parent is usually granted access, which enables contact to be maintained with the child. There is however increasing support for replacing custody orders with parental responsibility orders to emphasise that parents have a responsibility to work together in the best interests of their children and that protracted legal disputes over custody are not in best interests of children.

For more details about matrimonial matters, please click here .

Article 28 of the Convention recognises the right of the child to education. Primary education must be compulsory and available to all free of charge. State Parties are required to encourage the development of different forms of secondary education, make education and educational information available to all children, and take measures to encourage regular attendance at school. According to Article 29 of the Convention education of the child should be directed towards developing the child’s personality, talents and physical abilities to their fullest potential. Education should develop respect for human rights and fundamental freedoms, and the principles in the United Nations Charter. It should also develop respect for parents, cultural identity, language and nationality and for civilisations other than that in which the child is living. The purpose is to prepare the child “for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin.” It should also develop respect for the natural environment.

Hong Kong provides for nine years free and compulsory primary and junior secondary education in its public sector schools. From the 2008/09 school year, the Government has extended free education in public sector schools from nine years to 12 years. In addition full subvention is provided for full-time courses run by the Vocational Training Council.

Under section 74 of the Education Ordinance , Cap. 279 , where it appears to the Permanent Secretary for Education that a child is not attending primary school or secondary school without reasonable excuse, the child’s parent may be served with an attendance order requiring that the child regularly attend the primary or secondary school specified in the attendance order. Under section 78 of the Ordinance a parent who fails to comply with an attendance order without reasonable excuse is liable to a fine at level 3 of Schedule 8 of the Criminal Procedure Ordinance (currently $10,000) and to imprisonment for three months.

The Convention on the Rights of the Child (“the Convention) was adopted by a United Nations (Resolution 44/25) on 20 November 1989. The Convention recognizes and protects the fundamental freedoms and inherent rights of children. It was extended to Hong Kong on 7 September 1994 by the United Kingdom Government, which was sovereign, or ruling, at that time. The Convention was ratified by the People’s Republic of China (“PRC”) on 2 March 1992 and re-affirmed on 10 June 1997. Accordingly, the Convention continues to apply to the Hong Kong SAR despite the resumption of sovereignty by the PRC in 1997.

This Convention is in force in most nations and is historically the most widely ratified treaty.  It provides an international system and a legal framework for the protection of children. The Convention defines a child as a person below the age of 18, unless the laws of a particular State Party or country recognise an earlier age of majority (that is, threshold of adulthood in law).

The Preamble to the Convention states that “……the United Nations has, in the Universal Declaration of Human Rights, (“the Universal Declaration”) (adopted by General Assembly of the United Nations in December 1948) …… proclaimed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The Preamble also reiterates that, as recognised in the Declaration of the Rights of the Child (“the 1959 Declaration”) (adopted by the United Nations General Assembly on 10th December 1959) the child, “by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection before and after birth.” Paragraph 2 of the 1959 Declaration states that “The child shall enjoy special protection and shall be given opportunities and facilities, by law and by other means, to able him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.”

Paragraph 4 of the Preamble states that the need for such special safeguards had already been stated in the Geneva Declaration of the Rights of the Child of 1924 (“the Geneva Declaration”), and recognized in the Universal Declaration of Human Rights (“the Universal Declaration”) and in the statutes of specialized agencies and international organizations concerned with the welfare of children. Paragraph 5 of the Preamble recognised that “mankind owes to the child the best it has to give.”

The Convention builds upon the Geneva Declaration, the Universal Declaration and the 1959 Declaration. It gathers together and restates rights and benefits previously found in various national and international statutes. Children’s rights are defined and protected. An important aspect of the Convention is the requirement for States Parties to report to and appear before the UN Committee on the Rights of the Child and to justify their actions or inactions in achieving the overall aims of the Convention. The UN’S monitoring and enforcement apparatus includes the Child’s Rights Caucus, the United Nations Human Rights Council and the Committee on the Rights of the Child.

Article 1 of the Convention defines a child as a ” human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.” Children’s rights set out in the Convention include the right to survival, the right to special protection, the right to develop through education and the right to participation. The right to participation includes freedom of expression and freedom of thought, conscience and religion. Under the Convention all children, from the moment of birth, have these fundamental rights.

Article 3(1) of the Convention contains the important provision that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Under Article 4 of the Convention  States Parties are required to take all available measures to respect, protect and fulfil children’s rights. This includes reviewing the laws relating to children, assessing social services, legal, health and educational systems and the financial support for those services. States Parties must ensure that the minimum standards set out in the Convention are met: there is a positive duty to help families protect children’s rights. Where necessary this includes amending existing legislation or enacting new legislation. There is a positive obligation to create an environment where children can grow and achieve their full potential. Every child should enjoy freedom of expression, freedom of thought, conscience and religion, association and peaceful assembly.

Section 47 Incest by men

Section 48 Incest by women of or over 16

Section 118 Rape

Section 118A Non-consensual buggery

Section 118B Assault with intent to commit buggery

Section 118C Homosexual buggery with or by man under 21

Section 118D Buggery with girl under 21

Section 118E Buggery with mentally incapacitated person

Section 118F Homosexual buggery committed otherwise than in private

Section 118G Procuring others to commit homosexual buggery

Section 118H Gross indecency with or by man under 21

Section 118I Gross indecency by man with male mentally incapacitated person

Section 118J Gross indecency by man with man otherwise than in private

Section 118K Procuring gross indecency by man with man

Section 119 Procurement by threats

Section 120 Procurement by false pretences

Section 121 Administering drugs to obtain or facilitate unlawful sexual act

Section 122 Indecent assault

Section 123 Intercourse with girl under 13

Section 124 Intercourse with girl under 16

Section 125 Intercourse with mentally incapacitated person

Section 126 Abduction of unmarried girl under 16

Section 127 Abduction of unmarried girl under 18 for sexual intercourse

Section 128 Abduction of mentally incapacitated person from parent or guardian for sexual act

Section 129 Trafficking in persons to or from Hong Kong

Section 130 Control over persons for purpose of unlawful sexual intercourse or prostitution

Section 131 Causing prostitution

Section 132 Procurement of girl under 21

Section 133 Procurement of mentally incapacitated person

Section 134 Detention for intercourse or in vice establishment

Section 135 Causing or encouraging prostitution of, intercourse with, or indecent assault on, girl or boy under 16

Section 136 Causing or encouraging prostitution of mentally incapacitated person

Section 137 Living on earnings of prostitution of others

Section 138A Use, procurement or offer of persons under 18 for making pornography or for live pornographic performances

Section 140 Permitting girl or boy under 13 to resort to or be on premises or vessel for intercourse

Section 141 Permitting young person to resort to or be on premises or vessel for intercourse, prostitution, buggery or homosexual act

Section 142 Permitting mentally incapacitated person to resort to or be on premises or vessel for intercourse, prostitution or homosexual act

Section 146 Indecent conduct towards child under 16

Section 147 Soliciting for an immoral purpose

Section 148 Indecency in public

1. In sexual related crimes where the victim is under the age of 16, if the defendant says that he/she got consent from the victim, can this be a defence?

No. The Crimes Ordinance contains offences designed to protect persons under 16 years of age from themselves. Under section 122 (indecent assault) for example, a person under 16 years of age cannot consent to an act that would otherwise be unlawful under the section. Sexual activity, even if it is short of intercourse, with a person under 16 years of age is still an offence notwithstanding that the person under 16 consented to such activity. Ignorance of the age of the person indecently assaulted is no defence.

In the case of sexual intercourse with a girl under 13 years of age, and sexual intercourse with a girl under 16 years of age, consent is similarly no defence. A person’s lack of knowledge of the age of the girl concerned is similarly no defence.

To know more about how the law protects children from sexual abuse, please refer to Child and Youth Affairs > Children’s protection and welfare > Sexual abuse of children.

2. What are the main characteristics of the Juvenile Court?

A juvenile court has jurisdiction over charges against a child or young person except if it is a charge of homicide. The emphasis with young offenders is upon long term reform and rehabilitation rather than simply punishment.

As part of the long term reform and rehabilitation approach, juvenile courts sit in private. 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.

To know more about the Juvenile Court, please refer to Child and Youth Affairs > Children’s protection and welfare > Legal proceedings against a child > B. The Juvenile Court.

3. If a child is abused by his/her parents, who else can take care of the child?

A juvenile court, either on its own volition or upon the application of the Director of Social Welfare (“the Director”), which is satisfied that any child or juvenile is in need of care or protection, may appoint the Director to be the legal guardian of such child or juvenile. Alternatively, the court may commit the care to any person, whether a relative or not, who is willing to undertake the care of the child, or to any institution which is willing to do so. The court can also order parents or guardians to enter into a recognizance to exercise proper care and guardianship or place the person for a specified period, not exceeding three years, under the supervision of a person appointed for the purpose by the court.

The Protection of Children and Juveniles Ordinance enables police officers and social workers to take action to protect a child or juvenile in need of care or protection.

For more details, please go to Child and Youth Affairs > Children’s protection and welfare > Custody of children and guardianship.

4. My daughter has been sexually assaulted. I do not want her to give evidence in court. I am worried that she will be traumatized if she is asked to describe what has happened.

It is an ordeal for the child victim of violence or sexual abuse to face his/her abuser in open court and be subjected to traditional forms of cross examination. Protection must be afforded to children in such situations if their best interests are to be protected.

There are legislations that provide some protection for children and juvenile victims of certain sexual or physical offences when they are giving evidence in court as prosecution witnesses. This is done by shielding them from the full rigour of the traditional trial format. This includes allowing a child (other than the defendant) to give evidence and be cross examined by way of a live television link, or giving evidence by way of a pre-recorded video interview.

These provisions recognise and attempt to reduce the trauma that child and juvenile victims of physical and sexual abuse face when giving evidence as prosecution witnesses. Inevitably this means some reduction in the rights of defendants, but these reductions are proportional and objectively justified in the interests of protecting children when giving evidence in court.

If you want to know more about this, please go to Child and Youth Affairs > Children’s protection and welfare > Protection of child victims at trial.