Bystanders may face jail for neglecting abuse

Local | Jane Cheung and Daphne Li 17 May 2019

A "bystander offense" targeting parents and carers who fail to protect children or vulnerable adults from death or serious harm stemming from abuse or negligence may be introduced after the Law Reform Commission made the recommendation yesterday.

The new offense comes with a maximum sentence of 20 years in jail when the victim dies and 15 years behind bars in cases of serious injuries.

The commission yesterday said in many domestic violence cases, it is difficult to prove under existing laws whether parents or carers killed or injured victims.

Amanda Whitfort, chairwoman of the Causing or Allowing the Death of a Child or Vulnerable Adult Sub-committee, said in cases involving family violence the prosecution always faces a challenge in proving that the victim's carers or relatives committed the unlawful act that resulted in the victim dying or maimed.

"The situation is often further complicated by the suspects' silence, or by their mutual accusations, and by the silence of other family members in their attempts to protect the suspects," she said.

Whitfort said a key feature of the proposed offense is that it would not be necessary for the prosecution to prove whether the defendant was a perpetrator or a culpable bystander.

"This offense is essentially about a duty to care," she said. "The message would be that if you have a child or the carer of a vulnerable adult, you are responsible for protecting that person, and if you do not take the responsibility seriously, you expose yourself to potential criminal liability."

Committee member and forensic doctor Philip Beh Swan-lip said the new offence will cover cases where the victim can't express themselves when the abusers are breaking the law.

"In some cases, police officers and lawyers found it depressing when parents refused to say anything, even if they were cognizant the baby was abused," he said. "But they can be charged with the new offense."

A three-month public consultation on the proposal will run until August 16.

The Social Welfare Department recorded 1,064 new cases of child abuse in 2018, a record-high since 1997 and the first time the number has exceeded 1,000 since 2010.

Among the 1,064 cases, 493 were physical, 297 sexual, 237 related to negligence and 11 revolved around psychological abuse, with some involving other types of abuse.

The committee's recommendation came after the tragic death of five-year-old Chan Sui-lam, a result of long-term parental abuse, had sent shockwaves across the SAR and raised concerns over the city's child protection policy.

The girl suffered from permanent brain damage and only had minimal response to outside stimuli as a result of the severe malnutrition and physical abuse.

It is reported Chan was hurled into the air by her parents and hit her head on the ceiling the day before her death.

Chan's eight-year-old brother was also found to be starved and abused, which prompted police to arrest their parents and step-grandmother.

The girl's 26-year-old father and 27-year-old stepmother were charged with one count of murder and two counts of ill-treatment of neglect.

The pair remains in custody awaiting court procedures.

Chan's step-grandmother was also charged for ill-treatment of neglect.

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