Police Superintendent’s Discretion Scheme

Police Superintendent’s Discretion Scheme

The Police Superintendent’s Discretion Scheme (“PSDS”) is a critical administrative, non-statutory diversionary measure within Hong Kong’s juvenile justice system. It allows police officers of the rank of Superintendent or above to formally caution a juvenile offender instead of initiating criminal prosecution in court. The primary purpose of the scheme is to provide a juvenile with an opportunity to learn from their mistake and reform without the lifelong stigma of a criminal conviction, in cases where formal prosecution is not deemed necessary in the public interest. 

In deciding if the public interest warrants the prosecution of a juvenile, the following factors are taken into account:  

• the seriousness of the alleged offence; 
• the juvenile’s antecedents; 
• the age, capacity and apparent mental and physical maturity of the juvenile; 
• the support of family and others available to the juvenile; 
• the schooling or employment arrangements in place at the time; 
• the sentencing options available to the court; 
• the availability and efficacy of alternatives to prosecution, such as cautioning. 

At present, the scheme is available to juveniles who are aged 10 or above but under the age of 18 at the time the caution is administered. 

Basic requirements before a caution can be considered 

A caution under the PSDS is not available in every case. Certain basic conditions must first be satisfied. 

First, there must be enough evidence to support a criminal prosecution. In other words, the case must be one where prosecution would otherwise be a real option. 

The juvenile must also voluntarily and clearly admit the offence. The admission must be unequivocal. If the juvenile denies the offence, or the facts are disputed, the case will not normally be suitable for cautioning. 

In addition, both the juvenile and the juvenile’s parent or legal guardian must agree to the cautioning process. Without that consent, the PSDS cannot properly operate. 

Matters considered by the Superintendent 

Even if the basic requirements are met, the police are not required to give a caution. The decision remains discretionary. A Superintendent will consider whether the case is suitable for disposal by caution rather than by prosecution. 

The seriousness and nature of the offence will be important. The police will consider whether the offence is of a kind that can properly be dealt with outside court, and may also take into account how common or prevalent that type of offence is in the community. 

The Superintendent will also consider the juvenile’s culpability and the harm caused. Relevant matters may include the value of any property stolen, the extent of injury, loss or damage suffered by the victim, and whether the offence was impulsive or involved planning or malice. 

The juvenile’s previous record is also relevant. A juvenile with a clean record is more likely to be considered suitable. A person with a previous conviction is not normally dealt with by caution. While a second or subsequent caution is not legally barred under this administrative scheme, it is rare. In deciding whether to give another caution, the police may consider how much time has passed since the previous caution, how serious the earlier and current offences are, and how the juvenile responded to previous guidance or support. 

The attitude of the complainant or victim may also be taken into account. The police will also consider the attitude of the parents or guardians, including whether they are supportive, responsible, and willing to exercise proper discipline over the juvenile. 

Procedure for administering a caution 

The cautioning process is normally carried out within about 1 month after the juvenile offender’s arrest. 

Before the Superintendent makes the final decision, the officer in charge of the case prepares a Background Report of Juvenile Offender. This report helps the police understand the juvenile’s circumstances. It may cover matters such as schooling, employment, family background, extra-curricular activities, behaviour, and whether the juvenile shows remorse. 

If a caution is approved, it is delivered in a formal setting. The Superintendent administering the caution is required to wear uniform, so that the juvenile and the family understand the seriousness of the matter. The parent or guardian must attend the cautioning session. 

Effect of a police caution 

A caution administered under the PSDS is not a criminal conviction, and the juvenile is not brought before a court. Consequently, the offender maintains a clear criminal record. 

Although a PSDS caution is not a conviction, it may still have practical consequences if the juvenile later commits another offence. If the later offence is prosecuted in court, the previous caution may be taken into account as part of the juvenile’s background where relevant. 

Internal police records and fingerprint retention after a caution 

After a caution is administered, the police keep an internal record of the caution and the offence. This record is not the same as a criminal conviction. It is kept mainly so that the police can monitor the juvenile’s background and take the previous caution into account if the juvenile comes to police attention again. 

The existence of an internal record also helps the police assess what kind of guidance, supervision or support services may be appropriate for the juvenile. 

Under section 59 of the Police Force Ordinance (Cap. 232), the police may retain the fingerprints of a juvenile who has been dealt with under the PSDS. However, this power of retention is not indefinite. It lapses when the person reaches 18 years of age, or when 2 years have passed since the caution, whichever is later. 

Police supervision after the caution 

After a caution is given, the juvenile is placed under police supervision. The supervision period lasts for 2 years or until the juvenile reaches 18, whichever comes first. 

The case is referred to the Juvenile Protection Section of the Police Region where the juvenile lives. Follow-up visits may be conducted by plainclothes officers. The purpose is to monitor the juvenile’s progress and discourage further offending or association with undesirable influences. 

Referral to support services 

The Superintendent may also refer the juvenile to government departments or non-governmental organisations for support. These referrals are intended to help the juvenile address personal, family, educational or behavioural problems. 

A referral to the Social Welfare Department may be made where the juvenile has serious behavioural or family problems, needs a caseworker, has no suitable parent or guardian, or comes from a family facing serious financial hardship. 

A referral to the Education Department may be appropriate where the juvenile is under 15 and has dropped out of school, has school-related problems, or may need a transfer to another school to avoid negative influences. 

The juvenile may also be referred to non-governmental organisations operating under the Community Support Service Scheme. These organisations provide services such as counselling, educational and vocational guidance, social skills training, and activities designed to help young people avoid reoffending. 

Consent and voluntary participation 

Referrals to outside support services require consent. Because of the Personal Data (Privacy) Ordinance (Cap. 486), the police cannot transfer the juvenile’s personal information to the Social Welfare Department, the Education Department, or non-governmental organisations unless the parent or guardian gives express signed consent. 

Participation in these after-care services is also voluntary. If the parents do not consent, or if the juvenile does not attend the services, the authorities cannot compel participation under the PSDS alone. 

This is different from a court order, such as a probation order, where the court may impose compulsory supervision and require the young person to comply with specified conditions.