CONSULTATION PAPER OF THE LAW REFORM COMMISSION ON CAUSING OR ALLOWING THE DEATH OR SERIOUS HARM OF A CHILD OR VULNERABLE ADULT

A Sub-Committee of the Law Reform Commission (“LRC”) in May 2019 published a consultation paper to invite public views on a set of preliminary proposals for reform of the law relating to the criminal liability of parents, carers and others when children or vulnerable adults die or are seriously harmed as a result of abuse or neglect while in their care (the “Consultation Paper”).

The problem that the above Sub-Committee is addressing in the Consultation Paper arises in family violence and other cases where the victims are children or vulnerable adults, and where the Prosecution is having difficulties in trying to prove beyond reasonable doubt which of the victim’s carers or members of the victim’s household committed the unlawful act which was the immediate cause of the victim’s death or serious harm. The situation is said to be often complicated by the suspects’ silence, or by their mutual accusations, and by the silence of other family members in their attempts to protect the suspects.

After reviewing the legislation in Hong Kong, and those in various overseas jurisdictions, the Sub-Committee recommends the introduction of a new offence of “failure to protect a child or vulnerable person where the child’s or vulnerable person’s death or serious harm results from an unlawful act or neglect”. This proposed offence would impose criminal liability on those who fail to take steps to protect a child (under 16 years of age) or a vulnerable person (over 16 years of age) from death or serious harm caused by an unlawful act or neglect in various circumstances, including the situation where the defendant was, or ought to have been, aware of the risk of serious harm to the victim. There is also a recommendation for the Government to undertake a review of the current maximum penalty applicable under s. 27 of the Offences against the Person Ordinance (Cap. 212) (OAPO), with a view to increasing it as appropriate.

The Consultation Paper was reviewed by the Criminal Law and Procedure Committee and the Family Law Committee. Although, without any doubt, the law should provide adequate protection to children and vulnerable persons, queries are raised as to whether the proposed reform is the best way forward. Among other things, and notwithstanding the researches produced by the LRC in the Consultation Paper, the committees are not convinced of the justification put forward by the LRC for the proposed offence, including those technical arguments that underpin the “ought to have been aware” wordings.

The above views were endorsed by the Council of the Law Society. A detailed submission on the Consultation Paper is at:

http://www.hklawsoc.org.hk/pub_e/news/submissions/20190830.pdf

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