Ill-treatment or Neglect by Those in Charge of Child or Young Person

Ill-treatment or Neglect by Those in Charge of Child or Young Person 

Under section 27 of the Offences against the Person Ordinance: 

(1) If any person over the age of 16 years who has the custody, charge or care of any child or young person under that age wilfully assaults, ill-treats, neglects, abandons or exposes such child or young person or causes or procures such child or young person to be assaulted, ill-treated, neglected, abandoned or exposed in a manner likely to cause such child or young person unnecessary suffering or injury to his health (including injury to or loss of sight, or hearing, or limb, or organ of the body, or any mental derangement) such person shall be guilty of an offence and shall be liable — 

• on conviction on indictment to imprisonment for 10 years; or 
• on summary conviction to imprisonment for 3 years, 

and for the purposes of this section a parent or other person over the age of 16 having the custody, charge or care of a child or young person under that age shall be deemed to have neglected him in a manner likely to cause injury to his health if he fails to provide adequate food, clothing or lodging for the child or young person, or if, being unable otherwise to provide such food, clothing or lodging, he knowingly and wilfully fails to take steps to procure the same to be provided by some authority, society or institution which undertakes to make such provision for necessitous children or young persons. 

(2) A person may be convicted of an offence under this section, either on indictment or by a court of summary jurisdiction, notwithstanding that actual suffering or injury to health or the likelihood of such suffering or injury to health was obviated by the action of another person. 

(3) A person may be convicted of an offence under this section, either on indictment or by a court of summary jurisdiction, notwithstanding the death of the child or young person in respect of whom the offence is committed. 

Under section 27 of the Offences against the Person Ordinance, any person over the age of 16 who has the custody, charge or care of a child or young person under the age of 16, and who wilfully assaults, ill-treats, neglects, abandons or exposes that child, or causes another to do so, in a manner likely to cause the child unnecessary suffering or injury to health (including injury to sight or hearing, injury to a limb, or mental derangement), commits a criminal offence, punishable by a maximum of 10 years' imprisonment on conviction on indictment, and a maximum of 3 years' imprisonment on summary conviction. 

Explanation 

Section 27(1) of the Offences against the Person Ordinance does not divide the conduct into five separate offences of "assault", "ill-treatment", "neglect", "abandonment" and "exposure"; rather, it treats these various forms of abuse as parts of one and the same offence. Accordingly, where the charge alleges that the defendant "ill-treated" a child, but the evidence is more accurately characterised as "neglect", the court may still convict, because the defendant's conduct falls within the overall scope of the provision. 

Wilfully 

In a Hong Kong case, the court explained the meaning of "wilfully": a person (i) who, knowing that the child's health might be harmed unless medical care was provided, deliberately fails to provide the child with medical care; or (ii) who fails to provide the child with medical care through not caring whether the child might need it, "wilfully" fails to provide the child with medical care. In other words, "wilfully" includes knowing that, or being reckless as to whether, one's omission is likely to cause the child or young person unnecessary suffering or injury to health. 

Assault 

For an assault to fall within this provision, it must be more than a mere common assault. The provision requires not only a "wilful assault", but that the assault be carried out in a manner "likely to cause the child or young person unnecessary suffering or injury to health". 

Ill-treatment 

The Offences against the Person Ordinance contains no express definition of "ill-treatment", but it may generally be understood as a course of deliberate abusive conduct; for example, bullying, intimidation, or any conduct likely to cause a child unnecessary suffering or injury to health amounts to "ill-treatment". Under this section, the prosecution need not prove any assault or battery; however, even where a series of assaults may not fall within the type of assault referred to in this provision, they may nonetheless constitute "wilful ill-treatment". 

In addition, the defendant may raise a defence that the alleged ill-treatment was in fact "reasonable discipline" administered to the child by a parent or other lawful guardian. However, the law does not permit corporal punishment by a teacher under the Education Ordinance. 

Neglect 

In an English case, the court held that, as regards the actus reus, the sole question is: did the parent, at the material time, fail to provide medical assistance that was in fact adequate, having regard to the child's actual state of health? This is a purely objective question of fact, to be determined by reference to the child's actual state of health at the material time as known at trial. If the answer is "yes", then, by virtue of the deeming provision, the actus reus (that is, neglect in a manner likely to cause injury to health) is established; but the prosecution must still prove that the neglect was "wilful". 

In another case, the court held that the word "neglect" itself sufficiently connotes that the parent was able to care for the child, and that the charge therefore need not specifically allege that the parent had the financial means. If a parent is unable to provide for the child himself and does not seek assistance from a relief body, that will generally amount to neglect. 

A refusal to allow a child to undergo surgery may amount to a failure to provide medical assistance, but not necessarily so; whether it constitutes "wilful neglect in a manner likely to cause injury to health" is a question of fact to be determined on the evidence in each case. 

In another case, the father had sufficient income but did not give his wife enough money to feed and care for the child properly. The court held that the father could not rely on the defence that "the mother could have sought assistance from a relief body" in order to escape liability for neglect. 

Abandonment or Exposure 

"Abandonment" means leaving the child to fend for itself, deserted and left to its fate. 

As for "exposure", this generally means placing the child in a situation of exposure to danger or possible harm (for example, leaving the child out in bad weather or in a dangerous environment). However, "exposure" (and "abandonment") does not necessarily require a positive act: according to the English case R v White (1871) LR 1 CCR 311, where the defendant owes a duty of care to the child, even a mere omission may constitute "abandonment and exposure". 

In a Manner Likely to Cause the Child or Young Person Unnecessary Suffering or Injury to Health 

As to the interpretation of "in a manner likely to cause the child unnecessary suffering or injury to health", the word "likely" should cover a broad range of possibilities, but should exclude what is highly improbable. Whether the child in fact suffered any real harm is not decisive, and "unnecessary suffering or injury to health" does not include a "minor fright" or "slight psychological anxiety". 

Sentencing Principles 

Under section 27(1) of the Offences against the Person Ordinance, where the offence is dealt with on indictment (that is, where the defendant is convicted in a higher court, usually in a more serious case), the maximum penalty is 10 years' imprisonment; on summary conviction, the maximum penalty is 3 years' imprisonment. 

Cases under section 27(1) of the Offences against the Person Ordinance vary greatly in their background, seriousness, and the personal circumstances of the defendant, so that it is difficult to formulate uniform sentencing guidelines, and comparisons with other cases are of limited value. In sentencing, the court must have regard principally to two matters: the need to protect vulnerable children, and the need to deter abuse or neglect. Another very important factor is whether the child suffered long-term disability as a result, or whether there is a real risk of long-term harm. The court will also consider whether the abuse was a single incident or a course of conduct. 

In another case, the judge set out the factors to be considered in sentencing, including: 

• the need to protect children and vulnerable persons, and the need to deter abuse or neglect (this being the central factor); 
• the age and particular circumstances of the child; 
• the relationship between the defendant and the child, and the degree of responsibility the defendant owed to the child; 
• the nature, extent and duration of the abuse or neglect; 
• the suffering and injury sustained by the child; and 

• the long-term physical and psychological effects of the conduct on the child.