Oscar Wilde once said: "With age comes wisdom, but sometimes age comes alone." The Civic Exchange think tank reported last month that far more elderly people are getting into trouble with the police. Between 1991 and 2011, there was a sixfold increase in arrests of women over the age of 60, and a threefold increase in arrests of men of that age.
This situation is alarming, and the criminal justice system must decide how best to respond.
Louisa Mitchell, the report's author, said "the increase in crime amongst the elderly, its nature and whether it is linked to rising poverty in this age group, needs further investigation". Poverty, of course, may well be a factor, as also may mental disorder, but other things contribute, including overly rigid enforcement policies, a reluctance to divert elderly people away from the courts, a fear of appearing soft on crime, and also perhaps an increase in petty laws and regulations.
Although the police can, under the Police Superintendents' Discretion Scheme, administer a formal caution to a juvenile offender (aged 10-17) who admits his or her guilt, this option is not available for an elderly offender, which is regrettable. The recidivism rate of youngsters cautioned under the scheme has remained under 20 per cent in recent years, and a strong case exists for extending the scheme to adult offenders.
Although, some years ago, a working group, chaired by an enlightened prosecutor, John Reading SC, recommended the wider use of the scheme for offenders beyond 17 years, this was thwarted by hardliners who feared that increased cautioning would signal softness on crime. In consequence, a proposal that could have helped the police in their handling of elderly offenders was dumped.
This issue must now be revisited. After all, a sizeable number of shoplifting offences, for example, are committed by elderly people who are either forgetful or short of cash, or both, and little purpose is served by prosecuting them when a suitably worded caution may suffice.
Since 2003, English prosecutors have been able to use a conditional caution for adult offenders. The prosecution is suspended if the offender agrees to comply with certain conditions, designed to rehabilitate and prevent re-offending. If the conditions are breached, the prosecution may be reinstated. Success rates are high, and in 2008, for example, out of 8,011 conditional cautions, there was non-compliance in only 707 cases (almost 9 per cent). This is exactly the sort of scheme which could benefit elderly offenders in Hong Kong.
After all, the Department of Justice's statement of prosecution policy and practice provides that the older or more infirm the offender, "the more reluctant the prosecutor may be to prosecute unless there is a real possibility of repetition or the offence is of such gravity that a prosecution is unavoidable". This wisdom must influence the overall strategy.
Of course, elderly people who commit serious offences will face prosecution, but the majority of their cases are not serious, attracting a non-custodial sentence in the magistrates' court. A prosecution of an elderly offender should, if possible, be a sanction of last resort.
Once an elderly person is convicted of an offence, the court may, as an act of mercy, sometimes feel able to reduce the sentence. This, however, is by no means a given. Elderly drug traffickers, for example, have received short shrift from the courts when they have advanced mitigation based on their age. Were it otherwise, criminal masterminds would recruit elderly people to do their dirty work, knowing that, if caught, they could claim mercy, and this is unacceptable.
In 2009, for example, the Court of Appeal told a 70-year-old drug trafficker that "despite his advanced age and his frailty for which we have sympathy, we cannot say that the 10 years' sentence imposed on him for trafficking in just under 100 grammes of cocaine is … excessive".
Of course, if an elderly person receives a long sentence, he or she might require ongoing medical treatment. However, the medical facilities are good, and former High Court judge Michael McMahon once noted that most prisoners received medical attention in prison "of an equal or better standard than they would otherwise receive".
The Correctional Services Department has comprehensive facilities, with its institutions having their own hospitals. For example, male offenders aged over 60 are, if possible, housed at Ma Hang Prison in Stanley, which is a minimum security institution for male adult offenders and clinically old prisoners of low security risk, and is currently home to about 220 prisoners.
However, the real challenge is to keep elderly people away from the courts and out of prison in the first place. If, as seems likely, many of these people are simply the victims of straitened circumstances, every possible allowance should be made, and alternatives to prosecution considered. The merciful treatment of elderly offenders is not a sign of weakness, but a recognition that a more humane approach is in the wider interests of criminal justice.
Grenville Cross SC, an honorary professor of law at the University of Hong Kong, is the sentencing editor of Archbold Hong Kong and Hong Kong Cases, and the co-author of Sentencing in Hong Kong