II. DEFINITION OF “THE CHILD”
(Article 1 of the Convention)
79.
The definition of a child under the law of the HKSAR was
set out in detail in paragraphs 19 to 33 in Part II of the Initial Report.
The position remains largely the same. Updates since the Initial Report
and major developments are detailed below.
A.
Updates and developments
Free education
80.
Further to paragraph 22 of Part II of the Initial Report,
starting from the 2008-09 school year, free education has been extended
to include senior secondary education provided by public sector
secondary schools.
Moreover, the Government provides full
subvention for full-time courses offered by the Vocational Training
Council (VTC) for junior secondary school leavers. This is further
explained in paragraphs 441 and 450 below, in Chapter VII.
Sexual acts
81.
Sections 118C and 118H of the Crimes Ordinance
(regarding homosexual buggery or act of gross indecency with or by a
man aged under 21), as mentioned under paragraph 24 of Part II of the
Initial Report, was ruled in a judicial review case by the Court of Appeal
in 2006 as unconstitutional and inconsistent with the Basic Law and the
Hong Kong Bill of Rights Ordinance (Cap. 383), on ground that it
significantly affects homosexual men in an adverse way compared with
heterosexuals and the infringement to the rights of privacy and equality
cannot be justified. The Hong Kong Law Reform Commission (LRC)
(a neutral and autonomous body comprising academic and practicing
lawyers, and prominent members of the community) has set up a
Sub-committee to review the common law and statute law governing
sexual and related offences, including homosexual offences. The
Government will consider any recommendation to be made by the LRC
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as a result of the review. In the interim, the prosecution would take
into account the above judgment and the circumstances of each
individual case when considering charges on homosexual offences.
Prevention of child pornography
82.
As mentioned in paragraph 61(c) in Chapter I above,
in 2003, the Crimes Ordinance was amended to prohibit the use,
procurement or offer of persons under the age of 18 for making
pornography or for live pornographic performances.
83.
On the other hand, the Prevention of Child Pornography
Ordinance defines “child” as a person under the age of 16. As will be
explained in paragraph 541 in Chapter VIII below, the Government is
considering the option of raising the age to 18, in line with the definition
of the Convention and in the context of implementing the Optional
Protocol to the Convention on the sale of children, child prostitution and
child pornography. However, the implications and feasibility of the
amendments would need to be carefully considered.
Criminal liability
84.
The minimum age of criminal responsibility was raised
from seven to ten years of age since 1 July 2003. Some commentators
opined that the age should be further raised. This is addressed in
paragraphs 545 to 547 in Chapter VIII.
Juvenile offenders
85.
At present, under the Juvenile Offenders Ordinance
(Cap. 226), “child” and “young person” to which the special procedures
(such as juvenile court or other measures for the protection of juvenile
offenders) apply are defined respectively as those under the age of 14,
and those aged between 14 and 16. The Juvenile Offenders Ordinance
provides that no young person shall be sentenced to imprisonment if he
can be suitably dealt with in any other way. The Criminal Procedure
Ordinance (CPO) (Cap. 221) provides that no court shall sentence a
person of over 16 and under 21 years of age to imprisonment unless the
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court is of opinion that no other method of dealing with such person is
appropriate.
86.
Some commentators considered that the age of juvenile
offenders, restrictions on imprisonment applicable to juvenile offenders,
as well as the juvenile court’s jurisdiction should be extended to 18.
87.
As far as juvenile court is concerned, it has exclusive
jurisdiction to hear and determine a charge of any offence (other than
homicide) against children and young persons up to the age of 16. We
are of the view that the present system of juvenile justice is working
well and there is no pressing need for change. Our position is detailed
in paragraphs 553 to 557 in Chapter VIII.
Entry into controlled premises
88.
The position is largely the same as paragraph 31 of Part II
of the Initial Report, but due to legislative amendments to the Betting
Duty Ordinance (Cap. 108), the Hong Kong Jockey Club is now
authorised under section 6GB of the Ordinance to conduct horse race
betting activities through a license issued by the Secretary for
Home Affairs, instead of direct authorisation under section 3(2).
The requirement that no person under the age of 18 shall be permitted to
enter any betting locations (such as betting counters in racecourses and
Off-course Betting Branches) remains unchanged.
89.
Further to the legal provisions mentioned in paragraph 31
of Part II of the Initial Report in relation to the restriction of entry into
controlled premises, under the Places of Amusement Regulation
(Cap. 132 BA) of the Public Health and Municipal Services Ordinance,
which regulates the operation of billiard establishment with four tables
or more, the Conditions for Billiard Establishment Licence requires that
no person under the age of 16 years shall be allowed to enter the
licensed billiard establishment between the hours of 8:00 pm. and
10:00 am. Furthermore, no person in school uniform, whether in full
or in part, or whether wholly or partly covered, shall be allowed to enter
the licensed premises at any time during the business hours of the
licensed billiard establishment.
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B.
Statistical data
90.
The percentages of children under 18 in the total population
of the HKSAR are set out in Table 4.
Table 4: The percentages of children under 18
in the total population in 1996, 2001, and 2006-08
Age
Under
15
15-18
(0-18)
19-64
65 and
over
All age
groups
*
Mid
Sex
1996
Male
9.7
Female
9.0
Male
2.8
Female
2.7
Male 12.5
Female 11.7
Male
32.9
Female
32.7
Male
4.6
Female
5.6
Male
50.0
Female
50.0
Mid
2001
8.5
7.9
2.7
2.6
11.2
10.5
32.5
34.6
5.2
6.0
48.9
51.1
Mid
2006
7.1
6.6
2.6
2.5
9.7
9.1
32.3
36.5
5.7
6.7
47.7
52.3
Provisional figures
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Mid
2007
6.9
6.4
2.6
2.5
9.5
8.9
32.1
36.9
5.8
6.8
47.5
52.5
Mid
2008
6.7
6.2
2.6
2.4
9.3
8.7
32.2
37.3
5.8
6.8
47.3
52.7
Mid
2009*
6.4
6.0
2.5
2.4
8.9
8.3
32.2
37.7
6.0
6.9
47.1
52.9