Stealing Child under 14 Years

Stealing Child under 14 Years

Under section 43 of the Offences against the Person Ordinance: 

(1) Any person who — 

• unlawfully, by any means, leads or takes away, or decoys or entices away, or detains any child under the age of 14 years, with intent to deprive any parent, guardian, or other person having the lawful care or charge of such child of the possession of such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong; or 
• with any such intent receives or harbours any such child, knowing the same to have been led, taken, decoyed, enticed away, or detained as in this section before mentioned, 

shall be guilty of an offence triable upon indictment, and shall be liable to imprisonment for 7 years: Provided that no person who has bona fide claimed any right to the possession of such child, or is the mother or has bona fide claimed to be the father of an illegitimate child, shall be liable to be prosecuted by virtue hereof on account of the getting possession of such child or taking such child out of the possession of any person having the lawful charge thereof. 

(2) For the purposes of this section, the adoptive parent of a child under the age of 14 years, and the employer of a child under the age of 14 years, shall be deemed to have had the lawful care or charge of such child; provided that — 

• nothing in this subsection shall be construed as affecting any rights vested in or conferred on the Director of Social Welfare by or under the Protection of Children and Juveniles Ordinance (Cap. 213); and 
• nothing in this subsection shall be construed as conferring upon any adoptive parent or employer any right of retaining possession, custody or control of any child as against the child’s parent or guardian, or as against the child. 

Explanation 

Put simply, section 43 of the Offences against the Person Ordinance is a law protecting children under the age of 14 from being unlawfully taken away or harboured. Any person who, by coaxing, enticement or force, takes a child away from its parent, guardian or other lawful carer, with intent to deprive those persons entitled to it of the possession of the child, or with intent to steal something on the child's person, commits the offence; likewise, a person who, knowing that the child has been unlawfully taken away in this manner, receives or harbours the child, equally commits the offence. The maximum penalty is 7 years' imprisonment. There are, however, exceptions: the natural mother of the child, the natural father of an illegitimate child (provided he honestly believes himself to be the father), or a person who honestly claims to have a right to possession, will not be prosecuted merely for taking the child away in assertion of that right. In addition, the child's lawful adoptive parents and employer are treated as persons having lawful care of the child, but this does not affect the powers of the Director of Social Welfare, nor does it confer on the adoptive parents or employer any additional right to control the child. 

The authorities indicate that, even where the child consents to being taken away, the offence of "taking a child away" may still be committed; the key is whether the defendant caused "the child to accompany him". Provided the jury is satisfied that the defendant did so act, it is immaterial that he was not the sole cause, or even the main cause, of the child's doing so, so long as his conduct was not wholly peripheral or trivial. 

In an English case, the court observed that who has "control" of a child is purely a question of the factual situation at the time, and requires no elaborate definition of the term "control". The point is not to prove that the child was taken away from a particular place, but to prove that the charge or control of the child was transferred from the parent or other lawful carer to the defendant. The court held that, in every case, one can ask this simple question: "Did the child, without lawful excuse, and as a result of the defendant's conduct, move from doing what the parent or carer consented to his doing, to doing what the defendant induced him to do?" If the answer is "yes", the jury may convict the defendant. 

On its face, section 43 appears to be an "offence of absolute liability"; in other words, even if the defendant mistakenly believed that the child had already reached the age of 14, this is no defence. The prosecution need only prove the unlawful taking away of a child who was in fact under 14, together with an intent to deprive another of the lawful charge of the child, or an intent to steal an article on the child's person, in order to make out the offence. However, following the reasoning of the House of Lords in one case, if the defendant honestly believed that the child had already reached the age of 14, that may amount to a valid defence; the belief need not be reasonable, provided it is honestly held, although whether it was reasonable remains an important factor in assessing whether the belief was honestly held.