Causing or Allowing the Death or Serious Harm of a Child or Vulnerable Adult
(HKLRC Consultation Paper)
On 16 May 2019, the Causing or Allowing the Death of a Child or Vulnerable Adult Sub-committee of the Law Reform Commission (LRC) released a consultation paper making 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 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”. The Sub-committee further recommends that the Government should undertake a review of the current maximum penalty applicable under section 27 of the Offences against the Person Ordinance (Cap 212) (OAPO), with a view to increasing it as appropriate. Some more general observations on matters concerning the protection of children and vulnerable adults which it wishes to bring to the attention of the Government were also set out in the paper.
In family violence and other cases where the victims are children or vulnerable adults, 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 was the immediate cause of the victim’s 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 determining the content of the reforms recommended in the consultation paper, the Sub-committee carefully considered the law and practice in many other common law jurisdictions. In particular, the Sub-committee has reviewed in detail the significant legislative and judicial developments that have taken place in three jurisdictions: the United Kingdom, South Australia and New Zealand, which each introduced a unique type of criminal offence to deal with these “which of you did it” cases.
In line with these developments, 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 caused by an unlawful act or neglect 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;
- the defendant was, or ought to have been, aware of the risk of serious harm to the victim;
- 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 for both fatal and non-fatal cases, ie:
- 20 years’ imprisonment in cases where the victim dies; and
- 15 years’ imprisonment where the victim suffers serious harm (to cover, for example, cases where although the victim survived their injuries, these were so severe that the victim was left in a permanent vegetative state).
As liability for the proposed offence is based on the defendant’s failure to take steps to protect the victim, a key feature of the offence is that it would not be necessary for the prosecution to prove in a particular case whether the defendant was the perpetrator of the harm or a culpable bystander. Nonetheless, the Sub-committee considers that the list of elements which must be proved by the prosecution beyond reasonable doubt before the offence applies represents a high evidentiary threshold for the prosecution to achieve.
The Sub-committee would welcome views, comments and suggestions on any issues discussed in the consultation paper. The consultation period will end on 16 August 2019.
|Press Release (PDF) (MS Word)|
|Executive Summary (PDF) (MS Word)|
|Consultation Paper (PDF) (MS Word)|