THE SUPERINTENDENTS' DISCRETION SCHEME
A discretionary measure focused on rehabilitation.
The Police Superintendents' Discretion Scheme, commonly called a “Superintendent's Warning”, allows a Police officer of or above the rank of Superintendent to caution an eligible young offender instead of initiating a criminal prosecution.
A caution enables the young person to avoid a court appearance and criminal conviction, provided that the published evidential, admission, age and consent requirements are satisfied and the Superintendent, after considering all the circumstances, decides that cautioning is appropriate.
The Scheme does not mean that every person under 18 will receive a warning. It is a structured exercise of discretion intended to divert a suitable case away from formal criminal proceedings while promoting the welfare and rehabilitation of the young person.
SOURCE OF AUTHORITY AND ADMINISTRATIVE FRAMEWORK
The Superintendents' Discretion Scheme is not established by a specific statutory provision. It reflects the established discretion of law-enforcement authorities in dealing with an eligible young offender and is administered under Police policy and procedures. The published criteria regulate when a caution may be considered and administered.
It would be inaccurate to describe the Police as holding the constitutional authority over all prosecutions. Article 63 of the Basic Law provides that the Department of Justice controls criminal prosecutions, free from interference. The Department's Prosecution Code nevertheless expressly recognises alternatives to prosecution, including cautioning, when assessing whether prosecuting a juvenile is required in the public interest.
The Juvenile Offenders Ordinance (Cap. 226) governs important aspects of Juvenile Court proceedings and reflects the special treatment of young persons in the criminal process. It provides relevant statutory context, but it is not itself the source of the Superintendent's cautioning power.
ELIGIBILITY
A Superintendent cannot issue a caution merely because the offender is young or the family requests one. Each of the following requirements must be present before the discretion can be exercised.
Age
For the purposes of the Scheme, the offender must have attained the age of 10 but have been under 18 when the offence was committed. Published criteria also require the offender to remain under 18 when the caution is administered.
Sufficient evidence
There must be sufficient admissible evidence to support a prosecution, and prosecution must be the only alternative course of action. The Scheme is not a device for disposing of a case in which the evidence is insufficient.
Voluntary admission
The young person must voluntarily and unequivocally admit the offence. A person who maintains their innocence or does not admit the essential conduct cannot satisfy this requirement. The right to silence and the need for the admission to be voluntary remain important.
Agreement to the caution
The young person and their parent or guardian must agree to the cautioning procedure. Their informed cooperation is therefore a formal prerequisite, not merely a favourable consideration.
FACTORS INFLUENCING THE SUPERINTENDENT'S DISCRETION
Once the formal preconditions are met, the Superintendent considers the case as a whole. Relevant matters include the offence, the young person's background and response, the family's ability to support rehabilitation and the complainant's position.
Nature and seriousness of the offence
The form, gravity and prevalence of the alleged offence are central. The Scheme is most commonly associated with relatively minor offending, including appropriate cases of shoplifting, minor criminal damage or common assault. More serious allegations—such as trafficking in dangerous drugs, sexual offences, robbery or national-security offences—will ordinarily weigh very strongly in favour of prosecution. They are not, however, accurately described as a published list of offences automatically excluded in every possible case.
Previous record
A clear record and a first offence strongly favour diversion. A previous conviction or caution, repeated offending or evidence of an escalating pattern will weigh against the exercise of discretion, although the whole history and circumstances must be considered.
Remorse, attitude and support
The young person's remorse, maturity and attitude are relevant, as are the response of the parents or guardian, the stability of the home environment and the practical support available for rehabilitation.
The complainant's views and restitution
The complainant does not control or veto the decision, but their views may be considered. An apology, return of property, compensation or other completed restitution may also be relevant, provided it is genuine and lawfully arranged.
EFFECT OF A CAUTION
No criminal conviction, but not an erasure of the incident.
A Superintendent's caution is not a criminal conviction. The young person is not prosecuted or sentenced by a court and ordinarily retains a clear criminal-conviction record. The Police nevertheless retain a record of the caution, which may be relevant if the young person later applies to join the Police or another disciplined service.
HOW MCS CAN ASSIST
Representations for eligible young persons
MCS can advise the young person and family from the investigation stage, assess whether the published eligibility requirements are met, explain the implications of any proposed admission and communicate with the Police. Where appropriate, we can prepare representations addressing the offence, the young person's record, remorse, family support, schooling or employment, restitution and the public interest in rehabilitation rather than prosecution.