Secretary for Justice Teresa Cheng

There have been arrests, prosecutions and convictions of youngsters and students resulting from the social unrest since June last year. Recently, explosives and chemicals were found by Police. It would be catastrophic if they were used for unscrupulous purposes. Some of the youngsters might have been mistakenly led to believe that use of violence should be considered as a means to achieve their aspirations. However, I hope that they appreciate that law-breaking behaviour would always have legal consequences.

It is very troubling to see from the media reports that underage children or students are taking part in unlawful activities and even getting involved in violence. In so doing, they would not only put their own and others' safety at risk, but could also be arrested and prosecuted resulting in criminal records upon convictions. Their future in education and employment would inevitably be affected.

There are misleading suggestions that all young offenders would only be cautioned under the Police Superintendent's Discretion Scheme without criminal records. One must understand that Police, in deliberating whether to administer a caution, have to take into account a number of factors, such as whether the juvenile offender was under the age of 18 at the time of committing the offence; the seriousness and nature of the offence; whether the offender voluntarily and unequivocally admits the offence; whether the offender is remorseful and so on. Therefore, the scheme does not apply to all young offenders indiscriminately.

Similarly, bind over orders are only appropriate for first-time offenders involving minor offences and they have to be agreed by the courts. Under the bind over arrangement, offenders are required to admit the wrongdoings and are admonished in an open court. They also need to give an undertaking to the court to be of good behaviour. Imprisonment might be imposed for breaching the undertaking. Before agreeing to such a procedure on specified conditions, the prosecution has to give considerations to various factors including the age of the offender, criminal record, and attitude of the offender such as remorsefulness and so on.

There are also comments that prosecutions against young offenders should be withdrawn on the basis of public interest. I have to stress again that the Department of Justice (DoJ) must strictly make our prosecutorial decisions in accordance with admissible evidence, applicable laws and the Prosecution Code. The non-exhaustive list of considerations to be addressed when making assessment in considering public interest, including those applicable to juvenile offenders, were set out in 5.9 and 15.4 of the Prosecution Code, which include the nature of the offence, the seriousness of the offence, the criminal history of the suspect, remorsefulness of the suspect and the sentencing options available to the court and so on. Prosecutors should follow the above principles in making their decisions and must not withdraw charges unjustifiably under the pretext of public interest.

In considering the above arrangements, the DoJ has to carefully examine the circumstances of each case in an objective manner and strictly in accordance with the established principles. A decision cannot be made solely based on the age of the offenders. Their legal representatives are not only duty bound to inform them of their rights but also have an obligation to remind them of the legal consequences and the availability and considerations in relation to the above arrangements.

As observed by Lord Diplock, "[t]he acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it". Every member of the public must be aware that one has to bear the legal responsibility resulting from law-breaking behaviour. I sincerely hope that every one, in particular the youngsters, should exercise their independent thinking and judgement, and, more importantly, stay away from violence and not commit mistakes that might ruin their lives in the future.

Secretary for Justice Teresa Cheng wrote this article and posted it on her blog on May 9.