【明報專訊】IN the case of a three-year-old girl who died from brain haemorrhaging after being violently shaken, her father was convicted of murder and child cruelty and sentenced to life imprisonment. The trial judge observed that had the jury not found sufficient evidence to convict him of murder, the maximum penalty for child cruelty alone would have been 10 years only. This case has once again exposed the shortcomings of current laws as a deterrent against child abuse.
The Law Reform Commission (LRC) proposed raising the maximum penalty for child cruelty several years ago, and the authorities must move swiftly to enact these reforms. While the Mandatory Reporting of Child Abuse Ordinance was passed last year and will take effect in January next year, the next step should be to implement the LRC's recommendation of introducing a "failure to protect" offence, establishing a more comprehensive legal framework for safeguarding children.
Until now, cases involving "shaken baby syndrome" have typically been prosecuted under child cruelty laws. This case, however, marks Hong Kong's first conviction for the murder of an infant caused by shaking. In accordance with legal precedent, the High Court imposed a mandatory life sentence, a ruling that reflects the gravity of the crime. Yet had the victim survived, the court would have been bound by the Offences against the Person Ordinance, under which child cruelty carries a maximum prison term of just 10 years.
The LRC recommended years ago that the maximum penalty for child cruelty be increased to 15 years, in part to complement its proposal for a new "failure to protect" offence. Child abuse cases frequently present evidentiary challenges: victims are often too young to testify, and perpetrators may collude and remain silent to conceal the abuse. The proposed offence would allow the prosecution to convict without having to prove who committed the abuse. Instead, it would enable prosecutions where an individual knew, or ought to have known, that a child was at risk of serious harm but failed to take reasonable steps to prevent it.
Under the LRC's recommendations, where a failure to protect results in the death of the victim, the offender could face up to 20 years in prison, while cases involving serious harm could carry a maximum sentence of 15 years. Raising the maximum penalty for child cruelty to 15 years would align it with these sentencing provisions and ensure greater consistency within the legal framework. Yet the government remains hesitant about introducing the "failure to protect" offence.
Concerns have been raised within the social welfare, education, and healthcare sectors that mandatory reporting requirements and the "failure to protect" offence could expose professionals to legal liability. While child protection advocates have long called for stronger safeguards, the government finally enacted the Mandatory Reporting of Child Abuse Ordinance last year. The legislation places a duty on 25 categories of professionals—including social workers, teachers and medical staff—to report serious cases of child abuse. Yet the maximum penalty is a mere three months' imprisonment and a fine of $50,000, which has been widely criticised as too lenient and lacking deterrence. When questioned about whether the government would introduce the "failure to protect" offence, the Secretary for Labour and Welfare merely stated that officials would "wait and see", prioritising the implementation of the Mandatory Reporting of Child Abuse Ordinance before considering further legislative measures.
The Mandatory Reporting of Child Abuse Ordinance is only the starting point—it must not be the end. A clear timeline should be set for introducing the "failure to protect" offence, rather than indefinitely shelving the proposal. More urgently, the penalties for child cruelty must be increased without delay. The authorities should proceed immediately with the necessary legislative amendments, without bundling them with the "failure to protect" offence.
明報社評2025.03.28：完善防止虐兒法例 提高罰則事不宜遲
3歲幼兒遭猛烈搖晃腦出血死亡，父親謀殺及虐兒罪成判囚終身，法官指，若非陪審團認為有足夠證據裁定被告謀殺，單是虐兒罪，被告最多只能判囚10年，案件再次令人關注現行法例對虐兒罪行阻嚇力不足。
法律改革委員會數年前已建議提高虐兒罪最高刑罰，當局應盡快修例。政府去年通過《強制舉報虐待兒童條例草案》，明年1月生效，下一步應落實法改會建議，增設「沒有保護罪」，完善防止虐兒法例。
以往涉及「搖晃嬰兒綜合症」的案件，大多以虐兒罪提控，今次是本港首宗涉及嬰幼兒被搖晃致死的謀殺案。高院就謀殺罪依例判處終身監禁，被告可謂罪有應得。如果女童未有死亡，法庭最多也只能根據《侵害人身罪條例》下的虐兒罪，最高判囚10年。
法改會早於數年前已建議將虐兒罪最高刑罰提升至15年，目的之一是配合另一倡議，即增設「沒有保護罪」。鑑於虐兒罪行中，受害人往往年紀太小沒有能力作供，涉案疑犯又可能互相包庇，保持緘默，導致舉證困難。訂立「沒有保護罪」，控方控方毋須證明是誰虐兒，只需證明被告知道兒童在一段時間受虐卻不作為，沒有保護受害人，已可入罪。
法改會建議，倘受害人死亡，被告最高囚20年；若受嚴重傷害，可判被告最高監禁15年；將現有虐兒罪最高刑罰提高至15年，可以跟「沒有保護罪」的相關刑期保持一致。可是政府對訂立「沒有保護罪」的態度，明顯有保留。
社福、教育及醫療界一直擔心，引入強制舉報虐兒和「沒有保護罪」等做法，業界人員或因此惹上官非。關注兒童權益人士爭取多年，政府去年終通過《強制舉報虐待兒童條例草案》，規定社工、教師、醫護等25類專業人士須舉報嚴重虐兒個案，惟最高刑罰只是監禁3個月及罰款5萬元，被指刑罰過輕，缺乏阻嚇力；談到未來會否設立「沒有保護罪」，勞福局長僅稱要「睇定啲」，先集中精神處理強制舉報虐兒，積累經驗之後再決定。
通過強制舉報虐兒條例僅是起點，絕不能是終點。設立「沒有保護罪」，應該有時間表，沒理由永遠束諸高閣；提高虐兒罪罰則，更屬事不宜遲，當局應該馬上推進相關修例工作，毋須將之與「沒有保護罪」綑綁處理。
■/ Glossary 生字 /
deterrent : sth that makes sb less likely to do sth
gravity : extreme importance and a cause for worry
collude : to work together secretly or illegally in order to trick other people