Victims without a voice: the problem of “which of you did it?” cases
In family violence and other cases where the victims are children or vulnerable adults who cannot speak up for themselves, a particular evidential problem can arise for the prosecution 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 caused the victim’s death (ie, the immediate cause of death) or serious harm. The situation is often further 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. In the absence of testimony from the victim, it may be impossible to establish who committed the unlawful act. The attitude of the courts in such circumstances has traditionally been clear. In order to avoid the possibility of a miscarriage of justice, all accused parties should be acquitted of murder or manslaughter where the victim dies, if it cannot be proven beyond reasonable doubt which one of them was responsible, even though it is very likely one or the other must have committed the criminal act but there was no evidence of which one.
Those prosecuting these cases may consider that in too many instances, the charges which can be laid against individual carers do not fully reflect the gravity of the crimes committed against the victim (for example, charging ill-treatment or neglect of a child under s. 27 of the Offences against the Person Ordinance (Cap. 212) (“OAPO”) in the case of a child victim). Not only is the identification of the person who committed the unlawful act a difficult issue, but there may also be concern that the level of liability which can be imposed on bystanders under the present law (ie, those who, in all probability, must have been aware that serious harm was being inflicted on a victim by another) is limited and difficult to prove.
From the point of view of the defence, reforming the law to better facilitate the prosecution of offences where victims are killed in the home may have significant implications for key doctrines of the criminal law and the law of evidence.
Overview of Main Recommendations
A new offence of “failure to protect”
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 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 in circumstances where:
• the defendant owed a duty of care to the victim, or was a member of the victim’s household and had frequent contact with the victim; and
• the defendant was, or ought to have been, aware of the risk of serious harm to the victim; and
• the defendant’s failure to take steps to protect the victim from harm was, in the circumstances, so serious that a criminal penalty is warranted.
In addition to applying in both fatal and non-fatal cases, and to both child and vulnerable adult victims, the Sub-committee intends that the scope of the offence would be wide enough to apply in both domestic and institutional care situations.
The proposed offence carries high maximum penalties:
• 20 years’ imprisonment in cases where the victim dies; and
• 15 years’ imprisonment where the victim suffers serious harm. (The high maximum here is to cover cases where, even though the victim has survived, the harm they have suffered is so serious that, for example, they have been left in a permanent vegetative state.)
As liability for the offence is based on the defendant’s failure to take steps to protect the victim, it would not be necessary for the prosecution to prove whether the defendant was a culpable bystander or the perpetrator of the harm. Nonetheless, the list of elements which must be proven before the offence applies in a particular case still presents a high evidential threshold for the prosecution to achieve.
Review (upwards) of the maximum penalty for child ill-treatment and neglect
Although the maximum sentence for contravention of s. 27 of the OAPO was increased from two to ten years’ imprisonment in 1995, this reform appears to have been insufficient for the courts to deal with severest cases of child abuse where the victim is fatally injured. Further change to the law may therefore be necessary. The Sub-committee recommends that the Government should undertake a review of the current maximum penalty applicable under s. 27 of the OAPO with a view to increasing it as appropriate.
Background to the Sub-committee’s Proposals
The current law and procedure in Hong Kong
There is a range of possible charges which the prosecution in Hong Kong might seek to bring against those implicated in a child’s or vulnerable adult’s death in non-accidental circumstances depending on the evidence available. They include the common law offences of murder and manslaughter and, in the case of a child, the statutory offence of ill-treatment or neglect of a child under s. 27 of the OAPO, exposing child whereby life is endangered under s. 26 of the OAPO and infanticide under section 47C of the OAPO. (It is noted that apart from s. 65 of the Mental Health Ordinance (Cap. 136) relating to ill treatment of a patient in a mental hospital, there is no specific offence which deals with ill-treatment, neglect or abuse of other classes of vulnerable adults, such as the elderly.)
Other offences which might be considered in certain circumstances include various wounding and assault offences under the OAPO and various sexual offences under the Crimes Ordinance (Cap. 200).
The doctrine of joint enterprise may be used in some circumstances to impose liability in situations where the principal offender (the person who physically commits the offence) cannot be identified. However, the inference of a joint enterprise is difficult to prove in child abuse cases causing death, as the mere fact that both parents had “joint custody and control” of the abused child at the relevant time does not have any probative value in proving a joint enterprise.
Relevant rules of evidence and procedure
The general and fundamental rules of evidence and procedure, which are designed to guarantee a fair trial for the accused, can place significant limitations on the prosecution’s ability to sustain the most serious offence charges in fatal child abuse cases. These evidential and procedural rules are inter-related and concern the accused’s right to silence and his privilege against self-incrimination. (In Hong Kong, the accused’s right to silence and privilege against self-incrimination are laid down in statute: in Art. 11 of the Hong Kong Bill of Rights, as set out in s. 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383). In s. 54(1)(b) of the Criminal Procedure Ordinance (Cap. 221), the prosecution is prohibited from commenting on the accused’s failure to testify in all trials.)
Issues which must be considered by the prosecution in bringing child abuse and vulnerable adult abuse cases
There are significant practical issues which must be addressed by the prosecution before charges can be brought in child abuse and vulnerable adult abuse cases.
In the case where a child or vulnerable adult dies as a result of abuse, if there is more than one parent or carer responsible for looking after the victim and the suspects do not assist the police with their enquiries, the following matters are relevant in deciding which person(s) to charge: the time of infliction of injury and time of death, the actual cause of death, possible accidental cause of death, whether there was more than one injury, which injury caused death, the intent indicated and possible unfairness of a resulting conviction.
Where the child or vulnerable adult is physically abused but survives, additional issues may arise in relation to the victim giving evidence at court.
• The law can only step in when there is a complaint and usually only if the victim is willing to, or capable of, giving evidence.
• Pending abuse cases are very easily compromised if the child/mentally impaired victim and the offender are part of the same family or live under the same roof.
• Young children (victims or witnesses)/mentally impaired victims have difficulty in remembering exactly what happened or in what sequence after a few months have elapsed.
• Children/mentally impaired victims can feel intimidated by the entire court experience.
Developments in Other Jurisdictions
In 2004, 2005 and 2011, the United Kingdom, South Australia and New Zealand, respectively, each introduced a unique type of offence to deal with this type of situation. While each offence was different, the underlying principle was to charge the suspects with a very serious offence, carrying a severe penalty, whether they had caused the harm to the victim or had stood by and allowed the harm to happen without taking steps to prevent it. A key feature of this new type of offence is that the prosecution does not need to prove which role a particular suspect has played in the harm inflicted on the victim (ie, whether as the perpetrator of the harm or a bystander) for the suspect to be liable under the offence.
In 2003, the English Law Commission recommended changes to England’s substantive criminal law and rules of evidence and procedure in an effort to resolve the problems faced by the prosecution in cases involving the non-accidental deaths of children. The Law Commission’s recommendations were implemented (with modifications) in England in 2004, and a new offence of “causing or allowing the death of a child or vulnerable adult” was created under s. 5 of the Domestic Violence, Crime and Victims Act 2004. The grounds for conviction under this offence are significantly wider than those prescribed in a murder or manslaughter charge.
An offence entitled “criminal neglect,” with somewhat similar (though broader) scope and effect to the English reform, was introduced in South Australia in 2005, although it underwent significant amendment in 2018 due to problems of enforcement with the original offence.
In September 2011, the new offence of “failure to protect a child or vulnerable adult from risk of serious harm” was enacted in New Zealand. This was part of a more complex model of inter-related provisions which also expressly covered institutional care situations.
The Sub-committee’s Approach
In determining the content of the reforms recommended in our Consultation Paper, we have carefully considered the significant overseas legislative and judicial developments that have taken place, so that the benefit of that experience could be reflected in our own proposals for reform. In particular, while we found the legislative model adopted in South Australia in 2005 especially useful as a starting point (ie, in preference to the more limited 2004 United Kingdom model and the more complex 2011 New Zealand model), we note that difficulties encountered in practice in South Australia with the application of their legislation led to substantial further reform in 2018.
The offence recommended by the Sub-committee is comprised of several elements, each of which must be proved beyond reasonable doubt before a person can be held liable. The offence is not targeted at accidents. It is targeted at cases where serious harm has been inflicted on the victim in circumstances where preventative steps should have been taken, and the failure to have taken steps warrants criminal sanction. Furthermore, we have not proposed the introduction of any of the evidentiary or procedural reforms adopted under the UK model which may have been seen as impinging on the accused’s right of silence.
At the heart of this reference has been the dilemma of how to achieve a proper balance between protecting the fundamental human rights of vulnerable victims on the one hand, and on the other, protecting the right to a fair trial of those allegedly involved in their deaths or serious harm. We trust that the offence we propose achieves that balance by targeting the wrongdoers in failing to offer sufficient protection to the victim, without resting on the fiction that because both carers were present and it was unclear who committed the offence that killed or seriously harmed the victim, that both are therefore guilty of it. It is our hope that the proposed offence will provide a strong incentive to those living with and/or caring for children and vulnerable adults to ensure that they are adequately protected if they are at risk of harm.
In addition to our proposed new offence for Hong Kong, and our recommendation of a review of the maximum sentence under s. 27 of the OAPO, we set out some more general observations on matters concerning the protection of children and vulnerable adults which we wish to bring to the attention of the Government, including further information on the reporting of abuse.
The consultation period will last for three months until 16 August 2019 and the Sub-committee welcomes views, comments and suggestions on any issues discussed in the consultation paper. We would strongly encourage members of the profession to respond on this important subject.