Lawmakers generally face an arduous task in finding a delicate balance between a public that wants to feel safe and protected from sex offenders and a policy that effectively manages the offenders. Globally, policymakers are continuously seeking to identify and implement schemes and programmes that attempt to address the numerous issues related to sex offenders. Sex offender registration is based on laws that require people convicted of designated sexual offences to keep in contact with the police or other law enforcement authorities in order to notify them of any changes in their circumstances.1 The justification for this is two-fold. First, it places the police and law enforcement agencies in a better position to protect the public from future offences and second, the existence of the register itself deters offenders.2 The most common sex offender policies in use include registration, community notification, civil commitment, residence restrictions,3 and electronic surveillance.4 In this paper we seek to analyse Hong Kong’s recently implemented Sexual Conviction Record Scheme (SCRC Scheme) with a view to examine the extent to which the Scheme affords greater child protection by reducing the risk of sexual abuse against them.
I. HONG KONG’S LOW CRIME RATE
Hong Kong enjoys a reputation of being one of the safest cities in the world. This is evident from surveys conducted by the United Nation and the government of Hong Kong. The Seventh United Nations Survey on Crime Trends and the Operations of Criminal Justice Systems (UN Survey 2000) reported that in 2000 the overall recorded crime rate in Hong Kong was 1,185.7 per 100,000 persons, lower than Singapore (1,202.6), Japan (1,924.0), South Korea (3,262.6), Italy (3,822.8), France (6,403.8), Canada (8,040.6), and England and Wales (9,766.7).5 The low victimization rate was confirmed by a thematic survey conducted by the Census and Statistics Department (CSD) in 2006, entitled Crime and Its Victims in Hong Kong. The survey not only revealed a low crime rate, but also one that has remained stable over the years.6 Indeed, a recent newspaper report indicates that Hong Kong’s low crime rate is a reason for celebration.7 Such a cause for celebration is hard to challenge when the overall crime rate and the rates for most individual types of crimes like robbery and indecent assault fluctuate only by a small margin. This is demonstrated in Table I from statistics compiled by the Hong Kong Police.
Table I Comparison of the Total Crime Numbers for Rape, Indecent Assault and Robbery
Table I shows that there has been an overall increase of 11 percent in the reported cases of indecent assault between 2009 and 2013. In only two years did the rate actually drop, the last, between 2012 and 2013, by 2.1 percent.8 This is despite the fact that Hong Kong’s overall crime rate has consistently decreased over the same period.
II. INDECENT ASSAULT ON THE RISE
The statistics presented in Table I reveal that as compared to the overall crime rate there was an increase in the number of indecent assault9 cases from 2009 to 2012. In 2012, there were 1495 indecent assaults, as compared to 1415 in 2011. This is a 5.7 percent increase when compared to the overall crime for the same period, which was reported at 0.9 percent. In 2013, the increase was 2.4 percent, with 1262 cases between January and October as compared to 1232 cases during the same period in 2012. In a thematic household survey conducted in Hong Kong in 2005, the overall number of indecent assault victims was 13.8 per 1000 persons aged 12 or above,10 with the victimization rate of indecent assault against females aged 12 to 19 standing at 4.0, which was the second highest among all the age groups surveyed.11
Statistics on child sexual abuse12 captured by the Child Protection Registry (CPR) of the Hong Kong Social Welfare Department (SWD)13 in Table II shed further light on the incidences of sexual offences against children. Insofar as indecent assault is concerned, the Central Information System on Battered Spouse Cases and Sexual Violence Cases (CISBSSV) division of the Social Welfare Department (SWD) revealed a significant increase in the incidence of newly reported indecent assault cases from 2009 to 2013.14Table III provides brief statistics with a breakdown of the number of perpetrators.
Table II Number of Child Sexual Abuse Cases and Their Perpetrators
Table III Newly Reported Cases on Indecent Assault and Their Perpetrators
III. STATISTICAL NUMBERS NOT NECESSARILY A TRUE REFLECTION OF REALITY
While references to statistical data are generally informative, one should approach these figures cautiously as they may not accurately reflect the reality of the situation. First, although Table III reveals a spike in the number of newly reported indecent assault cases, the SWD’s statistics do not provide a breakdown of the number of cases committed against children. The SWD’s definition of child sexual abuse also tends to capture a larger category of sexual offences as compared to the number of reported indecent assault cases compiled by the CISBSSV, which uses a narrower definition and does not cover offences such as forced oral sex, forced masturbation, sexual intercourse with a girl under 16 years,15 incest,16 or homosexual buggery with or by a man under 21.17 Because of this, it is possible that the number of sexual assault victims, including children, could be higher than represented. Extreme caution should therefore be exercised in making any direct comparison or drawing conclusions between the numbers captured by the CPR and the CISBSSV division of Hong Kong’s SWD since this may provide a false representation of sexual abuse incidences against children.
Second, the real prevalence of sex abuse against children is likely to be higher than that reflected in the official statistics due to victims’ reluctance to report their victimization. Many victims do not report the crime to the police; many do not even report it to their family members or friends. Indeed, Priscilla Lui, a director of the non-governmental organization Against Child Abuse believes that for every reported case of child abuse, 99 cases go unreported.18 Her belief is supported by the 2006 thematic household survey that showed the victimization rate of indecent assault not reported to the police was 13.4.19 Unsurprisingly, the survey revealed that one of the reasons indecent (sexual) assault victims failed to report the incident is because of the ‘shame’ and ‘embarrassment’ it would cause them and their families. Tang suggests that there is much pressure within Chinese families to protect the family from shame.20 Indeed, in a highly dense and patriarchal community like Hong Kong, the repercussions may be even greater, with the victim feeling that speaking out against a ‘superior person or an elder’ may tarnish not only their own reputation but the reputation and integrity of their family as well. It is therefore not uncommon for the victims of child abuse and their families to be very reluctant in reporting incidences of sexual abuse or in supporting the victims.21 Traditional Chinese culture continues to play a role in the under-reporting of sexual abuse cases by suppressing sexuality and the expression of it, thereby creating a barrier for Chinese victims to articulate their experience as a victim of sexual abuse.22 It remains clear that remnants of Chinese tradition, values, and attitudes are still very much evident in many Chinese societies despite their having been exposed to Western ideas and values.
Although the UN Survey 2000 shows that while Hong Kong is generally held in high regard for its low crime victimization rate and the 2006 thematic study has indicated that the incidences of child sexual abuse is significantly lower in Hong Kong when compared to the West – for example, a survey of university students in Hong Kong revealed that six percent had been the victims of sexual abuse before they turn 17 as compared to the 15-30 percent in Western countries23 – there is certainly cause for concern with the rising incidences of sex crimes against children in Hong Kong. Further, the reportedly lower number of sexual crimes against children in Hong Kong does not detract from the devastating effect the crime has on them, nor does it reduce the mental, physical, and psychological harm to them.
IV. THE PUSH FOR A SEX OFFENDER REGISTER IN HONG KONG: JUDICIAL SUPPORT AND PUBLIC PRESSURE FOR THE REGISTER
The impetus for establishing the SCRC Scheme in Hong Kong arose from the increasing number of sexual assaults by persons regarded as having authority or responsibility for children, including people such as teachers, tutors, and care-givers.24
The call for the register25 was first raised by the Deputy District Judge in HKSAR v. Thomas Lang.26 While the case dealt with the production and possession of child pornography and indecent assault, the Honourable Judge commented27 that Hong Kong did not have any measures which prevented sexual offences against children. The judge proceeded to cite the UK as an example, where he stated that there was a mandatory requirement under what was then the UK’s Sex Offender’s Act (now the Sexual Offences Act, 2003) for sex offenders to notify the police of their names and whereabouts. Further provisions under the Act restricted employment in education and child care sectors. The establishment of the sex offender register was supported by Mr. Justice Stuart Moore, who had, in delivering his judgment in HKSAR v. Kam Wing Yin,28 expressed deep concern over the absence of a formal register, without which the defendant in that case could return to his business as a piano teacher and continue to work closely with children after his discharge. His Honour recommended that Hong Kong consider establishing a register to record the details of paedophiles so as to prevent them from working in close proximity with children. Without such a register, parents without the knowledge of the defendants’ past convictions might be exposing their children to the risk of sexual abuse. Mr. Justice Stuart Moore’s recommendation was further supported and re-iterated by his brethren, District Court Judge Lok in HKSAR v. Ng Wai-sang,29 Deputy High Court Judge Poon in HKSAR v. Tam Yiu-shing,30 and Deputy District Court Judge Albert Wong Sung-hau and Mr. Justice Louis Tong Po-sun in HKSAR v. Lam Tung-chun.31 In both Ng Wai-sang and Tam Yiu-shing, the defendants were employed by a school. In the former case, the defendant was an occupational therapy assistant at a special school for the mentally retarded while in the latter, the defendant was a tutorial school teacher. In Lam Tung-chun, the defendant was an audio-visual technician at a primary school and was convicted of nine charges of indecent assault on four children between the ages of 10 and 11 on a number of occasions at the school where he worked. All the defendants in the cases mentioned had previous convictions for sexual offences against children. By the nature of their employment, all three defendants were placed in close proximity with children and had taken advantage of that proximity to commit the offences against them.
The public also supported the establishment of the SRC Scheme. Two popular local newspapers published articles demonstrating that public views generally supported better protection for children and the creation of a sex offender register.32 The Chairlady of the Hong Kong Association of Parents, a pressure group representing the parents of children, expressed concerns about the absence of a mechanism to better protect children from sexual offenders after these offenders are released into the community.33
Prior to the implementation of the SCRC Scheme, criminal record checks under the criminal record system maintained by the Criminal Records Bureau of Police were restricted to those whose registration or approval for working in a particular field or profession may be refused based on the existence of criminal records under the Education Ordinance (Cap. 279), Child Care Services Ordinance (Cap. 243), and the Social Workers Registration Ordinance (Cap. 505). Criminal record checks were not applicable to a wider range of persons such as school support staff, sports coaches, and computer and laboratory technicians who have regular contact with children because of their work. They were also of little use to parents who regularly hire private tutors to coach their children in a range of school subjects and extra-curricular activities. Further, it is apparent from the Kam Wing Yin, Ng Wai-sang, Tam Yiu-shing, and Lam Tung-chun cases that the criminal record check provided for under the relevant Ordinances failed to prevent sexual assault against the young children.
V. SEXUAL RECIDIVISM
The study of recidivism — the commission of a subsequent offence — is important to the criminal justice response to sexual offending.34 If sex offenders commit a wide variety of offences, responses from both a public policy and treatment perspective may be no different than is appropriate for the general criminal population.35 However, a more specialized response is appropriate if sex offenders tend to commit principally sex offences.
One of the underlying reasons for having a sex offender register (in one form or another) is that the register serves as a dual form of protection by (a) helping law enforcement agencies to monitor the offenders and (b) arming the public with useful information as to whether an offender is in their midst. The premise is that communities will be safer if the authorities have good records identifying where these people are at any given time. If the register is open to the public, the public will be more reliably informed and better able to protect themselves, thereby making communities safer. Given that most incarcerated sex offenders will return to the community, there is a real fear that the offenders will repeat their crimes. Understandably, recidivistic sex crimes certainly raise genuine grounds for public concern. However, studies in the US, for example, have shown that although recidivism rates vary with follow-up periods, even over a period of up to 20 years, the majority of convicted sex offenders are not subsequently re-arrested for new sex crimes.36 Instead, studies have indicated that most sex offenders do not re-offend. In one of their studies, Sample and Bray reported that sex offenders have one of the lowest offence-specific re-offence rates when compared to other types of offenders.37 Indeed, it has been shown that the vast majority of sexual crimes are found to have been committed by first-time sex offenders rather than by registered sex offenders.38 This finding was supported by Sandler and others, who found that over 95 percent of offenders arrested for sexual offences had no prior sexual offence convictions and therefore, would not have been on the sex offender registry at the time of the offence.39
It is also reported that sexual recidivism rates differ according to the presence of certain risk factors. Hanson and Bussiere, for example, suggest a more extensive criminal history places a sex offender at increased risk for recidivism, as do younger age, a preference for male child victims, and a history of victimizing strangers.40 Other factors include drug and alcohol abuse41 and psychological or physical coercion.42 It is clear that not all people who commit sex offences are the same. Some behaviour is less likely to be repeated and some individuals are more amenable to treatment than others. Sexual recidivism rates in the community vary by key factors that must be carefully assessed in order to accurately identify the risk an offender poses to the community, and what steps must be taken to reduce or moderate this risk for the community.43
In Hong Kong, data provided by the Correctional Services Department revealed the recidivism rate of sex offenders to be six percent over a three year period.44 With a low rate of sexual recidivism, there is little evidence to support the fact that those previously convicted of sexual offences are at a high risk of re-offending neither is there evidence to support the fact that sexual abuse of children that occurs in the offenders’ places of employment is more or less serious than assaults that occur in other contexts.45
VI. THE SEXUAL CONVICTION RECORD SCHEME
However, despite the studies reporting low recidivism rates amongst sex offenders, the Law Reform Commission (LRC), amidst judicial comments and rising public pressure, released the consultation paper on the setting up of the sex offender register in July 2008. In February 2010, with wide support for the establishment of the register, the LRC published the Sexual Offences Records Check for Child-Related Work: Interim Proposals which introduced the SCRC Scheme.46 The purposes of the Scheme are two-fold. First, it aims to prevent previous sexual offenders from obtaining the trust of employers working with children or Mentally Incapacitated Persons (MIPs)47 by deliberately withholding their past sexual conviction records. It therefore provides employers in these industries with a reliable channel to assess whether applicants have any previous convictions for a specified set of sexual offences. Second, the Scheme aims to help reduce the risk of sexual abuse to children or MIPs and give them better protection while considering the need for the rehabilitation of offenders.
With the SCRC Scheme, Hong Kong steered away from the legislative mechanism implemented in the UK.48 Instead, the Scheme is a voluntary non-statutory administrative measure requiring applicants whose jobs require regular and close contact with children to grant prospective employers the right to check their information against the sex offender register. Implemented on 1 December 2011, it is managed by the Hong Kong Police and has its provisions in the Sexual Conviction Record Check Scheme Protocol (Protocol).49 Under the Scheme, employers of persons working with children50 or MIPs51 would be able to check whether their prospective employees have any criminal conviction records against the specified list of sexual offences contained in Appendix 1.52 This would include persons involved in the direct provision of services for children such as teachers and tutors working in tutorial centres and special schools, or work in premises which provide those services, like librarians and cleaners in schools or tutorial centres,53and those with frequent or regular but unmonitored contact with children, such as permanently-hired school bus drivers and assistants of children activities.54 This means that with the implementation of the Scheme, criminal conviction records maintained and held by the Hong Kong Police55 can now be used to check the conviction records of a wider range of prospective employees where the usual duties involve, or are likely to involve, frequent or regular contact with children. Prior to the Scheme, the police’s criminal conviction record was used almost exclusively to assist the police in discharging their duties on preventing, detecting, and investigating crimes. The main exception was that of express statutory provisions56 which provided that the existence of previous convictions is a ground for refusing the registration or approval of persons working in a particular profession or field, in which case the police will assist to conduct the criminal records check upon the request of approving authorities.57 Clearly, the Scheme aims to capture a wider group of persons who as part of their job are either in regular contact with children or have the opportunity to have regular access to children as compared to the pre-Scheme position, which limits the record checks to registered teachers,58 child minders,59 and social workers.60 However, despite widening the categories of persons that can be checked under the Scheme, the Scheme’s effectiveness has been questioned, as it (being administrative in nature) does not compel employers to carry out such checks. Notwithstanding this criticism, the Scheme was introduced on 1 December 2011 amidst judicial comments and rising public pressure.
Checking a prospective employee under the SCRC Scheme can be done by the applicant himself or by the employers authorized by the applicant through the police Auto-Telephone Answering System (ATAS) by entering the first four digits of the applicant’s Hong Kong identity card number together with a random 14-digit computer generated unique checking code provided by the Scheme’s Office.61 A transaction number is provided as reference whenever the applicant’s record is checked.62 However, before an applicant or his prospective employer is able to access the check result through ATAS, the applicant must first apply for the check to be made with a payment of a HK$115 (US$15) fee63 and the applicant’s fingerprints will be taken by an officer of the SCRC Scheme’s office to ensure accuracy of the check result.64 A “clean” check result would not be recorded in writing, but would be communicated verbally to the job applicant or his employer.
In its current form, the SCRC Scheme is severely limited in its scope and tepid in affording the protection the children of Hong Kong so rightly deserve. The Scheme is a far cry from the comprehensive provisions provided under conventional sex offender registration laws in other major economies like the US, the UK, and Australia. These jurisdictions were selected because they share a common legal legacy; their experiences and lessons learned would therefore greatly benefit Hong Kong.
VII. SEXUAL REGISTRATION LAWS IN THE US
The US has played a pivotal role in establishing sex offender registers. The term ‘sex offender register’ can refer to (a) registration requirements or (b) community notification requirements. Registration requirements compel sex offenders to register their present whereabouts and other personal details (such as name, age, sex, date of birth, details of current employment, residential address, photograph, etc.) in a database with the local police upon their release. These records are kept to aid in (1) community notification and (2) subsequent police investigations into sexual offences. Community notification laws allow law enforcement agencies to release information deemed necessary to protect the public concerning a convicted sex offender to the public. They require the agency in charge of the registration regime to notify organizations and individuals who might come into contact with a previously convicted sex offender about that person’s presence in the community.65 It should also be noted that, in the US, information about criminal convictions and arrests is publicly available from court records as well as other sources. Vendors of commercial information adept at searching for these records offer employers, landlords, and ordinary individuals criminal background information used for hiring, contracting, or screening social contacts.66 As a result, 80 percent of large US private employers conduct criminal background checks on employees including prospective employees.67
In the US today, both federal and state laws require persons convicted of sexual crimes to register with local authorities, thereby allowing law enforcement officials to monitor and keep track of them because the authorities have deemed them likely to commit similar offences in the future. While US registration laws date back to the 1940s, it was only after a number of highly publicized sex crimes against children in the 1990s that the Crimes against Children and Sexually Violent Offender Registration Act (or Jacob Wetterling Act)68 in 1994 and Megan’s Law 69 in 1996 were swiftly enacted.70 This was followed by the Adam Walsh Safety and Protection Act in 2006, which introduced a national sex registry and sex offender public website, higher federal penalties for crimes against children, a task force on internet crimes against children, and a national child abuse registry. 71
In addition to these laws, a new and comprehensive set of minimum national standards for sex offender registration and community notification was provided. The Sex Offender Registration and Notification Act (SORNA)72 established a three-tier classification system linking the duration of the registration requirement to the category of the offence committed. For example, a sex offender convicted of minor sexual offences punishable by not more than one year’s imprisonment (a Tier I offence) is subjected to a minimum registration requirement of 15 years,73 while sex offenders convicted of aggravated sexual abuse (like rape) or abusive sexual conduct with a child under 13 (Tier III offence) are required to register for life.74 Community notification requirements are also broadened under SORNA. Certain information must be made available through public websites of all registered sex offenders by all internet registries, including the name of the offender, his residential address(es), his employment address, the address where the offender is a student, his licence plate and a description of the vehicle owned or operated by the offender, a physical description of the offender, the nature of the sex offence, and any other sex offence the sex offender has been convicted of. In order to ensure compliance, SORNA requires each state develop criminal penalties and fines for failure to register in addition to a federal penalty of ten years imprisonment. It also requires sex offenders to make periodic in-person appearances to verify and update their registration information, expand the amount of information available to the public, make changes in the required minimum duration of sex offenders’ registration, and extend the jurisdictions in which registration is required.75
VIII. CRITICISMS OF SORNA
Although SORNA’s intent is the same as its predecessors, SORNA has been criticized as being “overbroad, overlong in duration, unjustifiably subjecting offenders who would pose no safety risk to the registration requirement”.76 For example, questions concerning the nature of information required from sex offenders and the extent to which the information is relevant to the purpose of maintaining a sex offender registry have been raised. While information about an offender’s current residential and employment addresses and the model, make, and licence plate number of the registered offender’s car might be useful in investigating new offences, it does little to inform the public of type of risk the offender presents to society or his risk of re-offence. The community notification requirement has also been criticized for allowing just about anybody anywhere access to online sex offender registries for purposes that might have nothing to do with public safety. Widespread access is seen as increasing the public’s anxiety, which is likely to inflate the danger posed by the offender and which can lead to unnecessary public unrest and violent vigilantism.77
Concerns have also been raised about SORNA’s effectiveness with regard to law enforcement, thereby undermining one of the purposes for which sex offender registration laws are passed. For example, many law enforcement officials have stated that the registries provide little or no help for law enforcement. Instead, officers have stated that they find it difficult to keep up with those offenders who have registered in the increasingly voluminous list of offenders.78 Indeed, evaluations of such schemes have produced little evidence that they have been successful in either reducing the rate of sexual offending or re-offending and assisting with investigations of sexual offences.79
IX. THE UK’s SEXUAL OFFENCES ACT 2003 AND MAPPA
In terms of keeping the police informed of convicted sex offenders’ whereabouts, the UK’s Sexual Offences Act, 2003 (SOA 2003) provides a set of notification requirements (name, address, date of birth, and National Insurance Number) for those who have committed a designated offence.80 The SOA 2003, which replaces the Sexual Offences Act, 1997, requires offenders to notify the police of all changes in circumstances within three days, including any change of address for more than seven days. The notification period has been made more stringent, with a period two years required for someone who has been cautioned, seven for a sentence of six months imprisonment or less, 10 for a sentence of between six and 30 months, and indefinite registration for custodial sentences over 30 months.81
Unlike the US, there is no provision for a separate sex offender register. Instead, offenders are required to provide information to the police and to notify them of any subsequent changes in that information during the specified notification period. The SOA 2003 also requires sex offenders travelling overseas for a period of more than three days to notify the police.82 Under the SOA 2003, the police have been given wide powers to apply for a number of orders with a view to prevent sexual offending. For example, the police could apply for a Foreign Travel Order against a person with a conviction for a “qualifying offence” if the officer involved has reasonable cause to believe that the offender’s behaviour necessitates the action and the court is satisfied that it will protect the children from serious sexual harm outside the UK.83 The police can also apply for notification orders for anyone entering the UK from abroad who is known to have a conviction record for sex offending, with the effect of having the person’s name entered on the register.84
One of the more important aspects of the UK’s register is the establishment of Multi-Agency Public Protection Arrangements (MAPPA), an inter-agency arrangement comprised of the police, the probation service and the prison service, and other agencies to assess and manage the risk posed by sexual and violent offenders.85 Guidance notes have been developed and are regularly updated to guide the operations of the inter-agency arrangements.86 For example, MAPPA now has oversight of any person who is deemed to pose a risk of serious harm to the public because of the offences they committed.87 In other words, MAPPA is no longer restricted to registered sex offenders but can cover convicted violent offenders. Offenders will be assessed according to their risk of re-offending with Level One being the lowest risk of re-offence and Level Three, the highest.88
X. THE UK’S NEW DISCLOSURE REQUIREMENTS
In 2008, the UK’s Home Office imposed a new duty on the responsible authority (the police) to consider the disclosure of records on any child sex offender89 they are currently managing, with a “presumption that they should disclose” to “any particular member of the public” if there is a risk of “serious harm” to a particular child or children and the disclosure is necessary to protect that child or children.90 Because of the presumption to disclose, any member of the public can request a criminal record check from the police on a named person to see whether he poses a risk to children. Aside from convictions, information on cautions, final warnings, and reprimands can be released.91 Although restrictions on further dissemination and disclosure of the information released may be imposed on the recipient of the information,92 the police are under no duty to disclose information where they consider it irrelevant to do so. Further, while there have been some criticisms of the new disclosure requirements such as the lack of clarity about “what amounts to a risk of serious harm” or “who exactly is a particular member of the public”,93 it appears that the new requirements have been favourably received.94
By comparison, Hong Kong’s SCRC Scheme is certainly not as rigorous as the US or as comprehensive as that of the UK.95 Indeed, it is contended that Hong Kong’s Scheme is not a register per se but a pre-employment screening check much like the pre-screening employment checks in Australia and the UK.
XI. PRE-EMPLOYMENT SCREENING CHECKS IN AUSTRALIA AND THE UK
Australia maintains a pro-active stance in creating and maintaining a child-safe environment. In doing so, it has developed and implemented legislation that provides for pre-employment screening – the Police Check and the Working with Children Check96 – that are carried out on individuals engaged in child-related organizations.
While there is no national framework setting out the requirements for both Checks, most Australian States or Territories have introduced legislation for pre-employment screening for child-related employment.97 Two types of screening programmes currently operate in Australia. In New South Wales and South Australia, the pre-screening is much like Hong Kong’s SCRC Scheme in that it is employer-driven. In these two states, it is mandatory for employers in relevant fields to carry out background checks on prospective employees or volunteers. The second type of screening programme is where the individual provides a certificate to engage in child-related work known as the Ochre card in Northern Territories98 and the Blue Card in Queensland.99 Both cards are valid for two years. While Victoria100 and Western Australia101 do not have a certification in the form of card, individuals intending to be engaged in child-related occupations must apply for a Children Check. The Check is valid for five years (for Victoria) and three years for individuals in Western Australia.
It is apparent when comparing pre-employment screening checks that New South Wales and South Australia’s screening checks are much like that of Hong Kong’s SCRC Scheme in that they are all employer-driven systems. The difference between the three is that the SCRC Scheme in Hong Kong is voluntary in nature, as compared to the mandatory nature of its counterparts. However, despite its employer-driven nature, Hong Kong’s Scheme is not a Working with Children type Check but a Police Check. Its usefulness is therefore restricted. This, we have seen, is because Hong Kong’s SCRC Scheme only reveals previous convictions, if any, and does not provide information, for example, where the charges have been withdrawn out of lack of evidence or if the charges have been dismissed. Neither does it provide information about allegations or police investigations involving the applicant. The Working with Children Check on the other hand, makes an assessment of the level of risk an individual poses to children’s safety. Consequently, it is much broader than its Police counterpart.
In the UK, the Criminal Records Bureau (CRB) Check is a ‘one-stop-shop’ for organizations accessing the criminal records disclosure service. The CRB, now called the Disclosure and Barring Service (DBS), Checks102 became operational on 1 December 2012.103
DBS Checks are normally required for jobs that relate to children. In fact, the DBS eligibility guidance provides a non-exhaustive list of positions, professions, offices, and employment types where DBS Checks are needed.104 The list includes, inter alia, any work currently defined as a regulated activity relating to children105 and includes child minding services,106 child fostering,107 the provision of any form of teaching,108 the training or instruction of children, the provision of any form of care and supervision of children,109 the provision of advice and guidance for children,110 and the provision of any form of treatment or therapy provided for a child.111 The occupations listed in the eligibility guidance are occupations seen as exceptions to the UK’s Rehabilitation of Offenders Act, 1974.
Under the DBS, there are three types of checks available for employers.112 Standard checks provide information on spent and unspent convictions, cautions, reprimands, and final warnings, while enhanced checks provide information in addition to that provided under a standard check that is considered relevant to the position sought and includes a check of the DBS barred lists.113 Employers considering engaging a prospective employee for caring, supervising, or being solely in charge of children will require enhanced checks in the DBS barred lists. Volunteers are also subject to the relevant checks although no fee is charged for running checks on them.
XII. LEGISLATIVE POLICY TRENDS
It can be said that it is only in the last 30 years, beginning with the US Jacob Wetterling Act in 1994, that society has begun to fully recognize child sexual abuse and the trauma that follows, and to thereby seek ways to prevent sexual violence. In response to communities’ demand for better protection from sex offenders, legislators have passed an increasing number of policies directed at people who engage in sexual abuse. Indeed, in the US alone, between 2008 and 2011, 1,500 sex offender-related bills were introduced in state legislatures, and over 275 new laws were passed and enacted.114 According to Tabachnick and Klien, the two leading trends in sex offender management policy focus on the incarceration of sex offenders, including legislative mandates for longer and mandatory minimum sentences, and on the intensified surveillance and monitoring of sex offenders returning to communities.115 In the US, the latter includes enhanced registration requirements that increase the length of time sex offenders must register with law enforcement, residence restrictions that limit where an offender can live, and the use of electronic monitoring technology to track the movements of offenders. In the UK, focus has been on increased notification and new disclosure requirements and pre-employment screening checks for child-related employment.116
It appears that instead of finding a policy that balances between a policy to protect the public from sex offenders and a policy that effectively manages the offenders, the scale is heavily skewed towards the former. There is little evidence to show that the policies are effectively managing and thereby preventing further sexual abuse or sexual violence. US policies, for example, have been severely criticized for being unduly “heavy-handed” with little regard for the rights of the offenders. We see this in the rather arbitrary length of time of offender registration, which is based not on the assessment of the likelihood of the former offender posing a continued threat, but rather on the nature of the conviction.117 Consequently, activities such as teenagers who have consensual sex with each other and adults who sell or solicit sex from other adults are required to register as sex offenders even when they pose no safety threat to the community at large.118 At the same time, the in-person registration (US) and notification (UK) requirements create serious hardship for ex-offenders, as they are required to take days off work more frequently in order to report at the registration office and police department in person, which could lead to loss of employment. Further, a sex offender who fails to comply with the registration or notification requirements faces a possibility of further incarceration even if he has not committed any new sex offences.119 Additionally, requiring the offenders to post more personal information on registry websites without any imposition of ‘need to know’ limitations on who can have access to the offender’s information have and will continue to expose offenders and their families to potential harassment, public hostilities, privacy violations, social ostracism, reduced employment and housing opportunities, and vigilante attacks.120 Strict residency restrictions have been known to contribute to family breakdowns, as the requirements keep offenders from living together with their families, forcing them to live in isolated areas.121 For example, former sex offenders in Miami, Florida have been living under bridges from 2006 to 2010, one of the few areas not restricted for them by the residency restriction laws of that city.122
With such draconian measures, no wonder policies have failed to provide the necessary vital support required for an offender to re-integrate into the community, to enable him to form healthy adult relationships, to secure stable employment and housing, the absence of which is seen as a key factor in the recidivism of child sex offenders. This could be some of the reasons why the US retributive model was not adopted in the UK or Australia. In comparison, although criticisms were levied on the UK’s required mandatory notification requirements, the length of the notification requirements and the significantly higher resource implications due to greater law enforcement access (for home visits and searches), the measures undertaken were generally accepted by the public. For example, the public in the UK generally supported the pre-disclosure requirement of there being a ‘serious risk’ of harm to a particular child or children and disclosure was necessary to protect the child or children before the disclosure of a child sex offender’s records could be disclosed,123 as opposed to the US’s publicly accessible online registries.
XIII. DEFICIENCIES OF THE SCRC SCHEME
Unlike in the US and the UK, under the SCRC Scheme offenders are neither required to provide up-to-date information of their personal details and whereabouts nor are they required to notify the police of any changes to that information. Instead, the Scheme provides better privacy protection to the applicant (in terms of greater control) by requiring the applicant (as a prospective employee) to consent and voluntarily submit to an application for a sexual conviction record check only if he is looking at gaining employment in child-related work. Clearly, Hong Kong’s administrative measures are the result of numerous US studies that have shown the negative, stigmatizing effect a public sex offender register can have on ex-offenders.124 The evidence has revealed that offenders not only experience greater hardship in finding suitable housing and employment, but they and their families also face social isolation, ostracism, and public humiliation.125 Because of the social repercussions associated with sex-related convictions, it is not uncommon for the offenders to ‘go underground’ in an attempt to evade notification and supervision requirements associated with the conventional sex offender register.126 Hong Kong’s administrative measures thus seek to balance between affording better protection to children against the risk of sexual abuse and the need to implement a holistic scheme for the treatment, rehabilitation, risk assessment, and management of sex offenders.
While the SCRC Scheme is of special importance in relation to Article 34 of the UN Convention on the Rights of the Child,127there is no doubt that much more needs to be done for the SCRC Scheme to be a worthy and an effective measure to help reduce the incidences of sexual crimes against children.
As it stands, the Scheme detracts from the two-pronged mandatory provision of information (registration) and notification mechanism that normally characterizes a sex offender register. Generally, registration and notification requirements seek to (a) reduce the likelihood of the offenders’ re-offending and (b) assist in the investigation and prosecution of future offences since the police would have up-to-date information about people who have been convicted of the offences of that nature. Further, given that offenders’ details are known to the police, it is possible the reporting requirement may discourage re-offending.
The SCRC Scheme is certainly important in recognizing sexual violence against children. Although the Scheme does appear to be a positive step towards better child protection, the administrative measures have been criticized as lacking the political commitment and vigour to adequately address the issue at hand. For example, as compared to the mandatory nature of the pre-employment screening checks and checks that can be made against volunteers in Australia and the UK, records checks under the Scheme are voluntary and are not available to existing employees, private tutors, coaches and the like, or to volunteers.128 It is difficult to understand why such a stark asymmetry has been created. Insofar as employees are concerned, the apparent shortfall means that even if an employer wants to act in a cautious manner with regard to his present employees, he will not be able to do so, at least with regard to checking the sexual offences records. This is especially so given the Court of Final Appeal’s decision in Ming An Insurance Co (HK) Ltd v. Ritz Carlton Co Ltd,129 where it held that an employer was vicariously liable for an employee's unauthorized tortious act if the act was so closely connected with his employment that it would be fair and just to hold his employer vicariously liable. The position can be compared with the position in the US where businesses have a strong incentive to purchase information from commercial information vendors to minimize workplace problems and maximize efficiency.130 It is certainly hard to discern a good reason why the Scheme stops short at present employees. Reasons given by the LRC as to why record checks should not be made mandatory, with or without exceptions, included resource and logistical problems in coping with employers rushing to check existing employees’ sexual conviction records if the Scheme was extended to existing employees, and seeking to minimize problems of employment disputes and social problems arising from unemployment. The reasons provided were weak and unsustainable to the extent that the Commission did accept the suggestion that the Scheme’s application to both existing and prospective employees could be done progressively in phases and that it is an issue worth considering when reviewing the Scheme in the future. Moreover, it is speculated that the LRC recommended an administrative scheme because legislative reform is next to impossible with the current political environment. Law reform being a very political process, it is much affected by Hong Kong’s underdeveloped system of government. The absence of universal suffrage means that the government is not directly accountable to the entire population for its policies.131 Newly-enacted laws are often introduced only after a long period of pressure from public interest groups to which the Administration will occasionally succumb if the pressure is sufficiently persistent and publicized.132 Unfortunately, although there are concerns of rising sexual abuse incidents against children, more comprehensive regulation against sexual offenders is not a high legislative priority for Hong Kong.
One possible reason the LRC might be reluctant to make record checks compulsory could be attributed to Chinese culture. Vagg, for example, finds that Hong Kong has a high level of intolerance for deviant behaviour, which can result in the exclusion and labelling of people who do not conform to social norms.133 This does not bode well for the Chinese since ‘face-management’ or ‘saving face’ is an integral part of one’s daily life. Face-management is more than just protecting one’s ego. For the Chinese, it is about how one is viewed by others. There is an unspoken understanding that people should not say things or behave in a manner that would disgrace or shame the family or the family name. By comparison, the Western counterpart is individualistic, valuing personal freedom and putting an emphasis on freedom of choice, self-reliance, self-autonomy, and personal achievement.134 From the Western perspective, the Chinese are generally seen to be more sensitive to any perceived slight having to do with ‘losing face’. The ‘thin-skinned culture’ is largely the product of a culture that has emphasized family and the group (clan) and the immense value placed on social harmony.135 Thus, it is the preservation of a person’s dignity and his family reputation, and the need for individuals to act ‘harmoniously’ for the benefit of the collective whole that takes precedence in Chinese society.136 This ingrained face-saving culture, where “jai chou bu ke wai yang” (a family’s misfortune should never be publicly aired), is likely to be one reason why the SCRC Scheme is not made mandatory. Such cultural factors and traditional values should be taken into consideration, given that they may heighten a family’s disgrace, thereby resulting in a ‘lose-lose’ situation for the prospective employee and society alike. While it is not envisaged that prospective employers under the SCRC Scheme would divulge sensitive and personal information about prospective employees who are convicted sex offenders, the mere fact that a stranger and third party can have knowledge of the prospective employee’s criminal record is sufficient to create unnecessary disdain. Further, although the possibility of a ‘leak’ or unintentional disclosure occurring is remote, such a disclosure can have a significant effect on concerned persons in a densely populated city like Hong Kong.
Criticism has also been made on the nature of the Scheme itself. One of the purposes of the Scheme is to provide a reliable channel for employers to ascertain whether job applicants had been convicted of a sexual offence. The Scheme therefore assumes that a homogeneous group, those who have had previous conviction for sexual offences, would be most likely to sexually assault children. This however, might not necessarily be true.
Concerns were also raised as to the Scheme’s effectiveness, since being voluntary it is unlikely that sex offenders known to the police would give their consent to have criminal record checks conducted on them. It is argued therefore that the only real use of the SCRC Scheme is if the lack of consent were to be taken as an admission of guilt. Even so, this should not be taken so presumptuously since it is possible people may have other reasons for not wanting to be checked.
The current Scheme does not cover conviction records of sexual offences that are regarded as “spent” under Section 2 of the Rehabilitation of Offenders Ordinance (Cap. 297) and overseas conviction records (as compared for example, to the UK’s SOA 2003, discussed above).137 Therefore, a person who has had his conviction “spent” can say “no” when asked by his potential employer or other person if he has previously committed an offence. The person cannot be dismissed by his employer for not disclosing his criminal record, nor can he be dismissed for having a conviction. Because of this, it is possible that some sexual offences that have been committed by offenders will not be reported. These offenders remain outside the Scheme and can constitute a threat to children. One queries whether this is the right decision by the LRC. It should be noted that only four organizations (the School Social Work Unit of The Christian Family Service Centre, the Hong Kong Bar Association, Justice, and the Medical Coordinators on Child Abuse of the Hong Kong Hospital Authority) supported the LRC’s recommendation that the SCRC Scheme not cover spent convictions. In comparison, a number of schools, school principals and related associations, religious and professional bodies such as the Hong Kong Association of Sexuality Educators, researchers, and therapists were all of the view that spent convictions should be disclosed even though the incident might have happened many years ago and was of a minor nature.138
Perhaps it is necessary is to look at the policy underlying the provision for “spent” convictions. Certainly, there exists a need to balance the offender’s need to return to full citizenship (having paid his or her debt to society) against the public interest in the prevention and detection of crime. As such, the reliance on old convictions as an indicator of future behaviour will result in serious prejudice to the offender. While this is sound social policy, one must also be mindful of the nature of the crime and the resultant traumatic effects the crime can leave on child victims. With the current position, sex offenders with short sentences for offences like indecent assault or indecent exposure will not have their record disclosed when seeking employment in child-related work. A better position would be to review the Scheme and to devise a mechanism to determine the types of convictions that can be regarded as “spent”. In this way, it would be prudent to have them disclosed as a precautionary measure instead of regarding convictions regarding offences against children as “spent”.
It is clear that the Scheme will not prevent first-time offenders from sexually abusing children, nor will it prevent family-related abuses. Research in the US has shown that the majority of sexual offences are perpetrated by family members, relatives, and acquaintances.139 In Hong Kong, the SWD reported that between January and December 2012, 336 of 894 (37.6 percent) newly reported child abuse cases were sexual abuse cases against children. Of these cases, 11 (1.2 percent) were committed by teachers and 25 (2.8 percent) by a tutor or coach; in contrast, 508 (56.4 percent) were inflicted by parents against children, 23 (2.6 percent) by siblings, 43 (4.3 percent) by step-parents, 14 (1.6 percent) by grandparents, and 38 (4.2 percent) by other relatives.140 While the numbers tell of greater incidences of child abuse by parents and persons related to the child victims, the SWD statistics do not accurately reflect the actual number of child sexual abuse incidents, since the numbers merely state the abuser’s relationship to the child rather than whether the abuse was of a physical, sexual, or psychological nature. It is therefore possible that although SWD represents an official source of statistically reported cases of child abuse (including sexual abuse), it fails to accurately inform the extent of the abuse and type of abuse vis-à-vis the abuser, thus raising an unnecessary challenge when reviewing the Territory’s sex offender policy. Notwithstanding this, the statistics do confirm the prevalence of family-related abuse of children. While no sex offender register can prevent first-time child sexual offenders or family-related sexual abuse, sex offender registers in the jurisdictions examined in this paper may to some extent reduce the occurrence of such incidences. This again raises the questions about the extent of the Scheme’s effectiveness, since its aim is to focus on a limited category of persons seeking employment in child-related work.
Given the gaps that exist in the Scheme, there is a need for a review and fine-tuning of the current administrative measures. One proposal is for the Scheme to be made non-mandatory. The current rule that the SCRC Scheme does not apply to existing employees should be reviewed. The reasons given for the rule to only apply to prospective employees is weak and unsustainable. One can speculate that because the Scheme’s aim is to devise a comprehensive scheme for the treatment, rehabilitation, risk assessment, and management of sex offenders without unjustifiably infringing on the privacy and other rights of the offenders (and their family members), to allow the Scheme to apply to existing employees would unduly infringe the personal privacy of employees. Nonetheless, the rule is not only discriminatory, but also undermines the purpose of the administrative measure.
In a highly competitive society like Hong Kong where the engagement of private tutors, coaches, and the like is common among parents, excluding parents from conducting background checks of those independently employed by them clearly misses the point. This is also true for volunteers involved in child-related work or activities. These matters should be taken into consideration in the government’s review of the SCRC Scheme. Additionally, the SCRC Scheme does not appear to provide for exemptions. There may certainly be individual categories of persons under the SCRC Scheme that could be exempted. For example, given that criminal record checks are already in place for registered teachers, child-minders, and social workers (as provided for under the relevant statutory provisions), should these individuals be exempted from the SCRC Scheme to avoid an unnecessary waste of resources? It would be useful for the authorities to consider such an exemption.
Equally important is to ensure that criminal record checks are not restricted to convictions. As a matter of comparison, the UK’s Criminal Justice Act, 2003 (discussed above) allows cautions, final warnings, and reprimands to be disclosed in relevant cases. Given that the SCRC Scheme was intended to reduce the incidences of child sexual abuse by persons taking advantage of their child-related positions, police information of investigations into allegations of serious child-related offences would be useful. These should be taken into consideration even if no charges were laid against the offender, for example, because the child was unwilling or unable to proceed.
In terms of the human rights of sexual offenders, the SCRC Scheme is seen to be proportionate and well justified, being the least restrictive means to achieve the purpose of balancing the right of the offender and protecting the human rights of the children and their families.
It is unclear whether the voluntary checking requirement against prospective employees can avoid many of the negative experiences and stigmatizing effects of conventional registration and notification laws or whether it is less effective in achieving the child protection outcomes the Scheme is intended to provide. While it is reasonable to assume that the common negative outcomes reported for offenders and their families as a result of public awareness of their previous offending are avoided, the effects of the Scheme and its impact in reducing the incidences of sexual abuse by persons working in child-related jobs were unknown at this time. What remains clear, however, is that when compared to the model adopted in the UK, for example, the Scheme fails to provide a comprehensive child protection mechanism.
XIV. PUBLIC OPINION OF THE SCRC SCHEME
Since the Scheme’s implementation in 2011, a random telephone survey was conducted on the public to gauge their views of the Scheme.141 Of the 454 respondents surveyed, only half of them (52.3 percent) said they had heard of the SCRC Scheme. Upon describing the SCRC Scheme to the respondents, 85.9 percent viewed the Scheme as a useful way to reduce sex crimes against children. While 55 percent supported the decision that the Scheme should not be opened to the public, an overwhelming 88.3 percent held the view that the Scheme should be accessible to parents who have privately hired persons in their capacity as coaches, tutors, and teachers.
In another survey commissioned by End Child Sexual Abuse Foundation, it was reported that 80 percent of the 792 private education institutions said they had not carried out pre-screening employment checks on job applicants. In contrast to private institutions, 89 percent of school principals reported that they had used the SCRC Scheme. In addition, 70 percent of the 1034 parents surveyed said that they too should be given access to the Scheme.
Although it may be premature to gauge the effectiveness of the Scheme in reducing the incidences of child sexual abuse by persons engaged in child-related work, the surveys do indicate public support for it. From the surveys it is also necessary for studies to be undertaken as to the reasons behind the significantly high percentage of private education institutions that had not conducted pre-screening employment checks. Could it be because they were not aware of the Scheme or could the reason be attributed to the Scheme’s non-mandatory nature? It is clear that the government must do much more. In the short term, greater awareness through extensive promotion and awareness campaigns needs to be carried out. Further, as previously raised by the authors and evident from the surveys, the SCRC Scheme must be amended to allow parents’ access.
There is no doubt that sexual offences are socially invasive crimes that require urgent government intervention and public protection. While the sex offender registration models differ between jurisdictions, it is clear that the collation of personal information through registers is the start of a system of trying to regulate future criminal behaviour in order to enhance levels of public protection and community safety.142
At first glance, the establishment of the SCRC Scheme was seen as a positive measure for Hong Kong – positive in that prior to the Scheme there was no system in place in Hong Kong which allowed employers to check the prospective employee’s relevant past convictions even with their consent save for specific statutory provisions. Clearly, Hong Kong lacks a system that can prevent a convicted sex offender from using his employment or voluntary services to target and sexually abuse children. Therefore, although the Territory should be lauded for taking a positive step by establishing the Scheme, one wonders if the administrative measure was a mere political ploy to appease the moral panic, vocal judicial comments, and rising public pressure ‘to do something’ and more the result of policymakers’ pursuit of punitive, simplistic policies designed to gain political mileage rather than truly protect children from sexual abuse. It is apparent that in its current form, the checks can only be carried out with the consent of the prospective employee and with employers not being compelled to conduct such checks even if the prospective employee consents. Parents of independently employed tutors and coaches do not have access to the Scheme. The Scheme does not apply to existing employees nor will it prevent first-time sex offenders or protect children from family-related sexual abuse. Even when the information is disclosed under the Scheme, it is limited to convictions not spent. One wonders how and to what extent this can and will assist in protecting children from future abuse. Further, although the surveys show general public support for the Scheme, there is no evidence to show the extent to which the Scheme can adequately protect the safety and welfare of children from sexual abuse nor its impact in reducing recidivism.
Sex offender programmes are generally built on premises that are skewed by public perceptions that all sex offenders are the same, that they re-offend at high rates and that sexual abuse against children are committed by strangers. The government plays a critical role in defining, detecting, and punishing sexual deviance. However, there is a necessity for the government policies, programmes, and regulations to be supported by empirical evidence so that there is no disconnect between public policy and sexual abuse against children. Additionally, it is useful to compare jurisdictional practices in establishing sex offender registers. This benefits the Territory by providing useful experience and helps to avoid detrimental practices. It is clear that the SCRC Scheme is neither as retributive as the US model nor as comprehensive as the UK’s model.
So where does the Scheme stand vis-à-vis the Territory’s criminal justice structure and the management of sex offenders? On the plus side, the LRC should be commended for not adopting the US model, which has been seen as a dismal failure in terms of law enforcement, protection of the community, and the rehabilitation of offenders. The UK model, on the other hand, like Hong Kong, remains with the police. While the UK model differs from the Territory in imposing mandatory notification requirements, it shares the similarity in disclosing information where necessary and upon request (although it is broader in not being restricted to enquiries by prospective employees of child-related work). Thus, in the Territory’s impending review of the SCRC Scheme, it would be useful to explore the possibility of adopting an improved version of the UK’s disclosure requirement to take into account the criticisms of a lack of access to the present Scheme and to further include relevant information such as cautions, warnings, and reprimands.
Further, while the SCRC Scheme’s aim is to protect children from sexual crimes, it may be beneficial for the authorities to consider and devise a new scheme similar to the Working with Children Check currently practiced in Victoria and Western Australia. Given that the Working with Children Check looks to the protection of children from abuse as a whole (physical, mental, and psychological) by making an assessment of the level of risk an individual poses to children's safety, the check can prohibit persons who have been convicted of serious violence or physical abuse against a child from being employed in child-related work. This New Scheme would certainly be a major improvement towards greater protection of a child’s general well-being. No doubt, the New Scheme would first require an overhaul of the current reporting and categorization of abuses (sexual or otherwise) against victims. For example, as previously noted, the annual number of reported indecent assault cases published by the SWD were not coded according to the category of victims. Without this initial step, it would be impossible to establish a viable and effective mechanism. In addition, it would be necessary to include the reporting and recording of more accurate and reliable data of offenders’ physical, sexual, and psychological abuse against children in the proposed New Scheme than is currently practiced. Certainly, the New Scheme would also envisage a higher level of cooperation and coordination between the police and the social welfare department (and relevant units within the social welfare department) to reliably assess and manage the risk of offenders. Additionally, further research into compulsory treatment for sex offenders and the need to enhance risk assessment and treatment, rehabilitation work in prison, and the community will also add to the overall management of sex offenders.
Notwithstanding the ‘gaps’ that currently exists, the SCRC Scheme does show the Territory’s modest initiative in increasing public protection and allaying societal fears. However, it is clear that much much more needs to be done to strike the right balance between public protection and sex offender management.