the emergence of the disciplinary welfare sanction in hong kong

The Emergence of the DisciplinaryWelfare Sanction in Hong Kong

PATRICIA GRAYLecturer, Department of Social Work and Social Administration,

University of Hong Kong

Abstract: This article rejects the contention of liberal writers that the historical development ofjuvenile justice has been a story of continual reform reflecting the struggle between the principlesof justice, welfare and punishment. Instead it presents a revisionist history of the Hong Kongjuvenile justice system from a strategic-relational perspective. The juvenile court isconceptualised as an institutional network of power relations, struggling to formulate policiesand programmes to regulate the behaviour of delinquent youth. Out of these struggles a strategicpolicy direction evolves, not through the work of any one individual or class faction, but as partof a wider hegemonic campaign. This argument is elaborated through an historical account ofthe emergence of the disciplinary welfare sanction in Hong Kong at the end of the 1970s, andits consolidation in the 1980s and 1990s. This new approach was hailed as a more progressiveway of managing the juvenile crime problem. However in reality it provided a more covert anddiscerning way of disciplining working class delinquents, which matched the hegemonic projectof the liberal-consultative state in other sites of power.1

Introduction: The Juvenile Justice System as a Site of Strategy and Class Power

Liberal writers often contend that reform in Western juvenile justice systemsis the outcome of a philosophical contest between the principles of justice,welfare and punishment (Parsloe 1978; Morris and Giller 1987). From aradical perspective (Clarke 1985; Pitts 1988), however, such debates miss thepoint and oversimplify the complex socio-political process of juvenilejustice. This article will pursue the radical critique, by presenting a strategic-relational approach to juvenile justice issues in which the juvenile court isviewed as a potential site of class domination.2 One can only begin to under-stand this process of domination by conceptualising the juvenile justicesystem as a ‘social relation’ which is the ‘site, the generator and the productof strategies’ (Jessop 1990, p. 260), or an arena of struggle where variousdominant class factions compete over the most effective strategies to regu-late the behaviour of delinquent working-class youth.

While I would agree with Smart (1995) and Garland (1990) that classinterests are only one of several gendering, cultural, moral and bureau-cratic-administrative social forces struggling to influence delinquency

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management policies,3 nonetheless, the strategic constitution of juvenilejustice relations makes them an ideal context for the articulation of suchinterests.4 But given that there are no global class subjects mastermindingthe control of delinquent working-class youth, how does the codification ofclass power come about? To answer this question one must break away fromthe constraints of viewing power along a vertical macro-micro continuum,and instead interpret global strategies in relational terms.5 This suggests thatthere are several global strategies co-ordinating class interests in diversemicro relations both within and across juvenile justice agencies, and theseare reproduced by juvenile justice professionals as they struggle to formulateand implement juvenile justice policies.6 However, substantive unity canonly be achieved when a specific hegemonic project is articulated whichmanages to assert an overall strategic direction7 onto the diverse globalstruggles ongoing throughout the juvenile justice system. This project aimsto codify hegemonic class domination by co-ordinating the development ofa unified set of policies not only in the field of juvenile justice, but also in avariety of other socio-political and economic sites of power.

Hegemony and Delinquency Management Strategies in Hong Kong

Juvenile justice strategies vary at different points in time relative to theprevailing socio-political climate. Therefore the strategic role of the juvenilejustice system can be analysed only within the context of the current domi-nant hegemonic project. I now intend to trace the struggles betweenreformist (professionals in the fields of education and social welfare) andreactionary (mainly incorporating business interests) hegemonic classfactions in the Hong Kong juvenile justice system from the post-SecondWorld War period to the current situation in the mid-1990s. These strugglesculminated in the emergence of the disciplinary welfare sanction in the late1970s and its consolidation in the 1980s and 1990s. It will be argued that thissupposedly far-reaching reform provided a coherent set of strategies for theregulation of delinquent working-class youth which matched the principlesembodied in wider hegemonic endeavours.

The Autocratic-Elitist State and the Early Origins of the Tutelary ComplexFollowing political unrest in China in the late 1940s and early 1950s, HongKong’s role as the main entrepot for Southeast Asia declined, and insteadthe territory developed as a major manufacturing centre (Ng 1989). Therewas a massive influx of new immigrants and capital from China and theseresources combined to bring about rapid growth in the economy. Despitethis economic miracle and the many social problems carried with it, thecolonial state’s strategies in the socio-political field were virtually the sameas they had been at the turn of the 20th century. An autocratic-elitist style ofhegemonic regime remained in place, which meant that Hong Kong wasgoverned by an elite partnership between the colonial administration andtop echelons of British and local Chinese business circles (King 1981). Sucha political structure had little inclination to intervene in social affairs orrespond to working-class aspirations and interests. Thus despite the

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phenomenal economic growth of the 1950s and 1960s, there was littleimprovement in the lives of the working population. Social conditions werenot unlike those in the industrial centres of Victorian England, marked bypoverty, slum housing, poor health care, and inadequate educational facili-ties (Scott 1989).

The origins of the Hong Kong tutelary complex8 can be traced to the1932 Juvenile Offenders Ordinance (Laws of Hong Kong 1932).9 Like the1908 Children Act in England, this Ordinance established separate courtsfor juveniles aged from seven to below 16 years and laid the foundation fora ‘dual image’ approach to the sentencing of young offenders (Morris andMcIsaac 1978). The juvenile court was to be a court of criminal jurisdiction,which could dispense both punishment and welfare in so far as it protectedthe ‘child’s best interests’,10 and it was to be through this ethos that the courtwas to expand and diversify its regulating powers over young people for thenext 60 years.11 Throughout the socio-economic changes of the 1950s and1960s, a variety of what Garland (1985, pp. 238–41) refers to as ‘normalis-ing’ and ‘corrective’ programmes were set in place and steadily expanded inHong Kong, providing a graduated network of tutelary sanctions to supportthe activities of the juvenile court. The lynchpin of the ‘normalising’ sectorwas the probation service, which was established at the same time as the juve-nile court ‘to help, advise and befriend’ young offenders (Mak 1973, p. 32).The ‘corrective’ sector offered a more intensive, institutional form of reha-bilitation, and established a role for probation homes and reformatoryschools run by the Social Welfare Department for the education, trainingand reform of offenders below 16 years of age (Director of Social Welfare1948–1960). In addition the Prisons Department ran training centres (simi-lar to borstals in England). These placed greater emphasis on the discipli-nary and physical aspects of character reform, and provided a substitute toimprisonment for young people aged 14 years and over (Commissioner ofPrisons 1948–1960). Garland (1985, p. 243) describes the ‘segregative’sector or imprisonment as the ‘coercive terminus’ of the criminal justicesystem for those who have resisted or been rejected by other sectors.However, the 1932 Ordinance imposed strict restrictions on the use ofimprisonment for juvenile offenders giving official recognition to the viewthat they constituted a special category of criminal, whose embryonic stageof character development made them more receptive to ‘normalising’ and‘corrective’ strategies.

Hence, by the end of the 1960s the basic infrastructure of the Hong Kongtutelary complex was already firmly established, with probation emerging asthe most popular sentencing disposal selected by juvenile court magis-trates.12 The concept of rehabilitation appeared to be the predominantphilosophy underlying these early tutelary measures, but support for suchan approach was far from unanimous and there was not even a coherentdefinition of how the concept was to be applied in practice. Indeed contem-porary debates and discourses reveal an intense struggle between reac-tionary and reformist hegemonic class factions as they competed toinfluence interpretations of the juvenile crime problem and articulate theirown delinquency management strategies.13


Inevitably reactionaries blamed the problem of juvenile delinquency ona breakdown in social discipline and moral training amongst youth. Theycalled for stricter controls over young people’s behaviour and a more puni-tive, deterrent approach to sentencing. Meanwhile a version of Merton’s(1957) strain theory prevailed in reformist circles. This portrayed delin-quency as the product of poor environmental conditions and inadequatesocio-economic opportunities. The reformists demanded an expansion ofyouth services, better educational provision, and a more rehabilitativeapproach to convicted offenders. At the end of the day it was this moreliberal viewpoint that held the greatest sway in official discourses.Nevertheless reactionary arguments were never fully silenced and conflict-ing principles remained (see note 13). Underlying the belief in the ‘reha-bilitative ideal’ lay a deep-rooted conviction that working-class youth poseda potential threat to social order and as such their behaviour had to befirmly regulated. However, this was not in the sense of Foucauldian discipli-nary normalisation, but more rooted in a philosophy of authoritarianrestraint, as befits a paternalistic, autocratic-elitist hegemonic regime.

Hegemonic Restructuring and the Law and Order EraGarland (1985) and Hall and Schwarz (1985) argue that at the turn of the20th century a major socio-political and economic transformation tookplace in the UK, marking the birth of modern democracy and the interven-tionist welfare state. State strategies of class regulation were reconstructedaround a new mode of hegemony, which culminated in the post-war socialdemocratic settlement. This new hegemonic project had a significantimpact on the development of criminal justice strategies. In Hong Kong asimilar period of hegemonic restructuring took place in the early 1970s.14

Economic growth continued unabated,15 but serious riots in 1966 and 1967had alerted the colonial state to the need to broaden its support base andimprove the socio-economic conditions of the working population. Thus the1970s saw the emergence of the liberal-consultative state, as the governmentand ruling elites set about initiating a series of collectivist welfare strategies16

and developing a more ‘open’ style of political administration.17 All of thesesocial and political reforms were expected to enhance significantly the legit-imacy of the new hegemonic regime in the eyes of the indigenous commu-nity (Scott 1989).

Whilst hegemonic restructuring was ongoing in the socio-political andeconomic spheres, media and public attention in the early 1970s turned toyouth crime. The concern18 stemmed from official statistics which appar-ently showed that violent crime amongst young people had reached ‘star-tling proportions’ (Lee 1980, p. 10). Predictably, this encouragedheightened debate about how best to tackle the problem. Reformistscontinued to argue that youth crime was caused by unsatisfactory socio-economic conditions, and that there should be increased emphasis onwelfare-orientated solutions. Meanwhile reactionaries contended that it wasprecisely such a soft approach which had allowed the problem to escalate,and that stronger deterrent measures were needed.19 A third faction, popu-lar amongst legal professionals, cautioned against over-reaction, and called


for ‘proportionality’ in sentencing and greater attempts to protect the legalrights of young offenders (Special Committee on Crime and Punishment1973, p. 11). However until the middle of the decade, the reactionary viewdominated the debate, and several harsh penal measures appeared on thestatute books (Hong Kong Government 1972, pp. 158–62).20 These includedthe introduction of detention centres in 1972 to give a ‘short’, ‘sharp’,‘shock’ to offenders aged 14 years and over (Commissioner of Prisons 1972).

Parallels can be drawn between the law and order campaign in HongKong at this time and that described by Hall et al. (1978) and Hall (1988) atthe end of the 1970s and beginning of the 1980s in the UK. Hall argues thatduring this period the New Right manufactured moral panics about youthcrime to divert public attention from prevailing political and economiccrises and justify tighter control over young people, who were seen as apotential threat to social order. Likewise in Hong Kong it could be arguedthat in the early 1970s the colonial state similarly reconstructed21 the prob-lem of youth crime as a diversionary, coercive tactic at a time of hegemonicrestructuring. Indeed criminologists (Lethbridge 1972; Traver 1980)contended that the apparent rise in youth crime was actually the result ofincreased public reporting, which had been actively encouraged by govern-ment sponsored Fight Crime Campaigns.

Nevertheless, reactionary discourses did not last long as the guiding prin-ciple of the Hong Kong tutelary complex. The most significant event in thisrespect was the government’s decision in 1973 to commission a researchstudy on the Social Causes of Violent Crimes Among Young Offenders (Ng 1975).By the time the report was published in 1975, the moral panic about youthcrime had dissipated.22 But the research findings, which reflected the devel-oping consensus in reformist circles, was to have far-reaching consequenceson the future direction of both youth control and delinquency managementstrategies in Hong Kong. Here at last was a piece of research which offereda more covert and discerning strategy for regulating the behaviour of delin-quent working-class youth in line with the hegemonic project of the liberal-consultative state in other sites of power.

The Liberal-Consultative State and the Emergence of the Disciplinary Welfare SanctionApart from minor setbacks,23 the Hong Kong economy has continued toprosper in the 1980s and 1990s. On the socio-political front, the liberal-consultative state has continued to consolidate and maintain a more legiti-mate, consensual style of administration. This new hegemonic path hadalready been embarked upon in the 1970s, but was undoubtedly speeded upover the last two decades by a series of political crises arising from theimpending return of Hong Kong to the sovereignty of the People’s Republicof China in July 1997 (Scott 1989). Despite opposition from China, govern-ment spending on social welfare, housing and education has steadily grown(Chow 1990), and in response to middle-class pressure the ‘consultative’style of politics of the 1970s has been replaced with a more democratic formof political representative (Scott 1989). These socio-political developmentshave allowed the liberal-consultative state to maintain a semblance of legiti-macy in the last years of colonial rule.


The struggle for legitimacy in the socio-political field was matched by asearch for a more legitimate way of managing problem youth within thetutelary complex. After the public outcry about youth crime in the early1970s, a further ‘moral panic’ (see note 18) erupted in the late 1970s.However this particular campaign did not reflect restructuring in the socio-politial sphere, but restructuring within the juvenile justice system itself.There had been little change in juvenile crime between 1974 and 1978, butthe two-year period from 1978 to 1980 saw a doubling of the rate, risingfrom 276 to 561 per 100,000 (Gray 1991). Yet again there was an upsurge ofpublic concern about young people’s criminal activities. The increasescontinued in the 1980s, albeit at a slower rate, fuelling repeated media andpublic attention. In the 1990s the rate has remained relatively stable fluctu-ating between 850 and 956 per 100,000 (Census and Statistics Department1995).

Several research studies were conducted in the 1980s to investigate thecauses of this upsurge (Hong Kong Government 1981a; Chow et al. 1985,1987; Ng and Chung 1988). The significance of this research was the some-what novel way in which it interpreted both the causes of and solution to thejuvenile crime problem. Gone was Merton’s (1957) strain theory with itsconcern for the lack of legitimate opportunities in young people’s lives andgone were the ‘law and order’ demands for greater deterrence. Instead outof the struggles between reformists and reactionaries a new set of crimino-logical discourses came into popular vogue24 – Hirschi’s (1969) controltheory and Sutherland and Cressey’s (1978) theory of differential associa-tion. Delinquency was now diagnosed as symptomatic of a behaviouralabnormality caused by a weakening of the young person’s interpersonal tieswith family and school. Without the normalising and disciplinary constraintsof these social institutions, it was felt that there was a greatly increased riskof the juvenile falling under the influence of undesirable peers and deviantsubcultures, with a real danger that this could eventually lead to the adop-tion of a delinquent way of life. The solution was seen to lie in preventativemeasures which strengthened the attachment of ‘vulnerable’ youngsters tofamily, school and pro-social leisure pursuits.

I will describe this new delinquency management strategy as the discipli-nary welfare sanction. The welfare intention is to re-forge positive links withfamily, school and friends, and so remove the attraction of anti-social, delin-quent bonds. This aim underlay the setting up of outreaching and schoolsocial work teams in 1979 (Social Welfare Department 1977) and theirexpansion in the 1980s and 1990s,25 with the objective of reaching ‘youngpeople at school, in their homes and in society at large’ (Social WelfareDepartment 1979, p. 19). However, while such welfare ideals are obviouslyappealing and even admirable, this innocent facade undoubtedly masks acovert and widened disciplinary regulation of young people’s lives. Such anapproach is well suited to the socio-political and cultural climate of the1980s and 1990s.

Hong Kong Chinese people retain deep-rooted emotional ties to theircultural heritage. In the 1980s and 1990s, the liberal-consultative state hasexploited these emotional sentiments in its quest for socio-political legiti-


macy. Chinese culture is an amalgam of diverse normative beliefs, but thenew hegemonic power bloc has presented Confucian philosophy as the‘authentic’ version of traditional Chinese culture, and blended key elementsof this discourse into its hegemonic strategies (Jones 1994, p. 130).Confucianism supports the ideal of a hierarchical ranking of authority bothin the family and wider socio-political relations (Ho 1996). ‘Filial piety’ actsas the guiding principle underlying Confucian notions of social order.Moral and behavioural training is stressed from early childhood, and chil-dren are taught to respect and obey their parents in the same way as theirparents are subject to the authority of the State. In such a cultural worldview,delinquency is seen as a ‘normative’ rather than a ‘criminal’ matter, reflect-ing on the one hand the family’s inability to fulfil its responsibilities as amoral agent, and on the other the child’s inability to learn conformity to‘acceptable’ standards of behaviour. The disciplinary welfare sanction, as willbe seen, operates according to normative law, heavily impregnated withConfucian moral precepts and behavioural rules. In the context of thecurrent hegemonic epoch, its attraction rests on both its appeal to stronglyfelt cultural sentiments, and its promise to ‘police’ the unruly behaviour ofdelinquent working-class youth in a discrete yet legitimate manner.

As one might expect, this new outlook towards ‘problem’ youth eventu-ally filtered through to the juvenile justice system. Indeed my research (Gray1993, 1994) on the decision-making practices of juvenile justice profession-als inside the Hong Kong juvenile court confirms that the disciplinary welfaresanction was having a major impact on sentencing decisions in the 1980s.The research focusses on the ‘regimes of truth’ (Foucault 1980, p. 133) ordecision-making discourses drawn upon by juvenile justice personnel as theyclassify offenders for the purposes of sentencing. I identify three main setsof discourses, but argue that a disciplinary welfare way of thinking is domi-nant.26 The easiest way to understand how this mind-set is operationalised inthe sentencing process to produce the disciplinary welfare sanction is throughthe notion of a tariff.27

The tariff operates by compiling information about young offenders’‘welfare’ needs, as evidenced by inadequate parental discipline, family insta-bility, misbehaviour at school, poor attitudes to work, undesirable peers andunsuitable leisure activities, to arrive at control indicators, which are used tojudge the extent to which young offenders have ‘wandered off the righttrack’ or are beyond the control of informal normalisation agencies. Theoffence and criminal career are pertinent only in so far as they offer insightinto inadequacies in the juvenile’s moral and behavioural training. Thechoice of sentence reflects an attempt to match the degree of behaviouraldecline with the appropriate level of disciplinary regulation. A juvenile whohas wandered only slightly off the right track would slot into the tariff at afairly low level and probably end up on probation. However, as the degreeof deviation becomes more serious, and parental control deteriorates, thejuvenile is perceived as drifting inevitably into a delinquent, waywardlifestyle and escalated up the tariff into residential training or custody.

Hence, the distinguishing feature of the disciplinary welfare sanction isthat all sentencing disposals used by the juvenile court, such as probation,


probation homes, reformatory schools, detention centres and trainingcentres,28 are viewed by juvenile justice professionals as providing an ascend-ing tariff of tutelary measures which offer the exact dose of disciplinaryregulation that they see as justified by the extent of deviation from, andpotential to return to, what is regarded as a ‘normal’ lifestyle. This legiti-mated the transformation of the Hong Kong juvenile justice system into acomplex continuum of disciplinary programmes effecting Foucauldian tute-lary strategies. From this time on vague references to rehabilitation couldnow be substantiated by a more distinct concentration on the disciplinarynormalisation of young offenders. The modern tutelary complex had arrived!

The Dispersal of Discipline

In Discipline and Punish, Foucault (1977) describes how in the first half of the19th century discipline emerged as a new technology of individualised train-ing and subjugation; a form of power which regulates its subjects through aprocess of continuous surveillance and normalising judgment. Within thepenal system the ‘body as the major target of repression disappeared’ asattention was drawn to the ‘soul’, creating a form of punishment ‘that actsin depth on the heart, the thoughts, the will, the inclinations’ (Foucault1977, pp. 8, 16). For Foucault normalisation is the key strategy of the microphysics of power, because it is through this mechanism that discipline isdispersed throughout society.29 All forms of social relations have explicit andimplicit normative standards of attitude and conduct embedded in them.Any breaches of these norms can precipitate a disciplinary response.

During the 19th century, Foucault (1977, p. 298) further contends,normalisation strategies spread through society, creating a form of gener-alised surveillance which he describes as the ‘disciplinary society’ or ‘carceralarchipelago’. Like Garland (1985), I will take issue with Foucault’s timing andargue that normalisation only became the main delinquency managementstrategy in the UK at the beginning of the 20th century with the birth of whatGarland refers to as the penal-welfare complex and Donzelot (1979) calledthe tutelary complex. At this time the juvenile justice system wholeheartedlyturned its attention to the characteristics and lifestyle of the young offenderand developed programmes and policies which sought to normalise delin-quent behaviour by focussing on the ‘soul’, the ‘will’ and the ‘inclinations’.

Cohen’s (1985) work provides a useful platform upon which to extendFoucault and Garland’s arguments to analyse more recent events in themodern tutelary complex. The bulk of Cohen’s argument is directed againstthe decarceration movement, that is the host of community correctionsprojects which proliferated in the 1970s and 1980s in the UK and USA.Cohen (1985, pp. 40–86) argues that despite the claims of this movement toreduce the size and scope of State intervention in the lives of young offend-ers, it has instead facilitated the extension of control into the communitythrough a process of net widening, net strengthening, boundary blurringand finally penetrating the informal networks of society. Cohen sees thismovement as a natural continuation of the dispersal of discipline, or ofFoucault’s ‘carceral archipelago’, into the community.


Similarly Cohen’s argument can be used to analyse the situation in HongKong. The emergence of the disciplinary welfare sanction in the 1970s and itsconsolidation in the 1980s and 1990s is generally viewed by juvenile justiceprofessionals as a more progressive way of tackling the juvenile crime prob-lem. However, in practice this approach has justified the creation of asophisticated network of tutelary measures which expand and strengthenthe State’s regulatory powers over delinquent, working-class youth. The restof this article will explore in more detail how the disciplinary welfare sanctionhas facilitated the spread of control in Hong Kong.

Drawing Working Class Youth into the Tutelary NetA recent self-report study of juvenile crime in Hong Kong showed that delin-quency is both common (some 70% of those interviewed admitted to at leastone criminal act) and widespread across all social strata (Vagg et al. 1995).Yet the majority of youngsters who actually appear in the juvenile court arefrom lower working-class families. They experience the worst schools andare headed for poorly paid, unskilled and unstable jobs. Inevitably they areforced to survive on the fringes of Hong Kong society, highly vulnerable tothe peaks and troughs of the capitalist market economy (Scraton andChadwick 1991). The emergence of the disciplinary welfare sanction hasincreased the numbers of such young people brought under the surveil-lance of the tutelary complex and widened the possibilities for official inter-vention.

Since the late 1970s there has been a significant rise in the rate of juve-nile cautioning, from 89 to 340 per 100,000 between 1978 and 1989(although in the 1990s the rate has slightly declined30). Despite this appar-ent preference for diversion, the number of convictions for ‘standard list’ orindictable crimes in the juvenile court fell only marginally.31 Given theupsurge in juvenile arrests over this period, it could be said that these statis-tics give little support to the contention that cautioning has drawn morejuveniles into the criminal justice system or led to what Cohen describes as‘net widening’. However, if diversion was operating as intended, it would beexpected that those juveniles prosecuted by the courts would be accused ofmore serious crimes, or be recidivists with a history of an earlier caution. Butthis is not the case. Two recent research studies (Gray 1994; Vagg et al. 1995)found that almost 70% of juveniles convicted in Hong Kong courts hadnever been previously cautioned and were found guilty of quite minoroffences. It seemed that disciplinary considerations or concerns over theyoung person’s unruly behaviour rather than the offence was the majorfactor taken into account in the decision to prosecute rather than caution.

In addition, for minor delinquents fortunate enough to receive a caution(undoubtedly because their behaviour is deemed not to have ‘wandered toofar off the right track’), the caution does not automatically imply that theyare then rejected by the system. Instead many are projected into a range ofpre-court diversionary programmes operated by the police and youthworkagencies, where their behaviour is subjected to low key regulatory strate-gies.32 Thus the expansion of cautioning in Hong Kong has opened up a newtutelary sector for monitoring minor delinquents (who previously would


have received nothing more than an informal warning), and extended theopportunities for surveillance from the court to pre-court administrativetribunals.33 Meanwhile slightly more serious offenders (the actual targets ofdiversion) continue to be prosecuted in the same way as before and, as thenext section will show, subjected to more intensive levels of intervention.

Strengthening the Tutelary NetThe modern tutelary complex in Hong Kong is viewed as the triumph ofreformist over reactionary delinquency management strategies. But, in real-ity, the emergence of the disciplinary welfare sanction has strengthened thelevel of tutelary regulation over young people appearing before the juvenilecourt, by subjecting increasingly less serious offenders to more intensiveforms of supervision. Sentencing statistics for the 1980s indicate a muchsterner approach by the courts to those juveniles convicted of ‘standard list’crimes (Gray 1991). The rate of admission to residential training andcustody increased almost threefold over the decade, while the number ofmore lenient sentences, such as bind overs and fines, fell by 50%. In the1990s, while the actual number of juvenile offenders admitted to residentialinstitutions and custody has marginally declined, when calculated as aproportion of all ‘standard list’ convictions in the juvenile court, custodialand residential sentencing has continued to rise.34

An explanation for these harsher sentencing trends could be that juve-nile offenders in Hong Kong have become more criminogenic. But this iscertainly not indicated by the statistics. Indeed young people enter the‘normalising’ and ‘corrective’ sectors of the modern tutelary complex aftervery brief criminal careers, and for crimes which could hardly be consideredto pose a danger to the community. In the 1980s most young offenders sentto residential institutions or custody were first offenders, and the remaindergenerally had only one previous conviction (Gray 1991). This picture haschanged little in the 1990s. Current data from the Social WelfareDepartment shows that first offenders make up almost 69% of probationhome inmates, with less than 10% having more than one previous convic-tion. Even in reformatory schools, 35% of inmates are first offenders and45% have only once been previously convicted (Director of Social Welfare1992). Evidence of repeated involvement in crime is also absent at the topend of the sentencing tariff, with Correctional Services Department statisticsshowing that in 1995 only some 27% of males aged under 20 committed toa training centre had more than one previous conviction. In the case ofdetention centre admissions, 50% were first offenders (Commissioner ofCorrectional Services 1995).

Nor can the prevalence of harsh sentencing be justified by the severity ofjuvenile crime in Hong Kong. Research (Gray 1994; Vagg et al. 1995) showsthat most juvenile offenders who are institutionalised or incarcerated havebeen convicted of the theft of small sums of money or low-value property.Crimes against the person are uncommon, and serious violence or injury tothe victim is very rare. The use of weapons is an exceptional occurrence withverbal threats and minor fist fights being the most typical form of violence.

There is no doubt that on any international league table of the frequency


and severity of juvenile crime, Hong Kong would be well down the list. Yet ahigh proportion of the territory’s young offenders end up in residentialinstitutions or custody. It seems clear this anomaly is due, as my (Gray 1994)research illustrates, to ‘disciplinary welfare’ considerations. Juvenile justiceprofessionals are looking far beyond the youngster’s offence in the sentenc-ing process, seeking to ‘correct’ what they consider to be behavioural abnor-malities. The more the juvenile is seen as deviating ‘off the right track’, thegreater is the perceived need to mobilise stricter disciplinary measures toensure a return to ‘normality’. But such standards are not clear-cut or valuefree. Indeed, although they may articulate cultural sentiments that areaccepted by many sections of Hong Kong society, they are also deeplyimbued with hegemonic class interests.35 Therefore, in strengthening thetutelary net, the disciplinary welfare sanction has also proved an effective yetcovert way of enforcing conformity to a set of discriminatory standardswhich are likely to keep working-class youth in a marginalised and disad-vantaged position. Euphemistically this normalising experience is describedas being in the ‘best interests’ of working-class youth.

Blurring the BoundariesIn Hong Kong a clear-cut distinction is made in legislation between the‘delinquent’ and the ‘child in need’, with the former being processed in thejuvenile court through criminal proceedings and the latter through careand protection proceedings. Likewise while the delinquent is supervised bya probation officer, the ‘child in need’ is placed under the care of a socialworker, and quite different sets of residential facilities exist for both cate-gories of young people.36 However, the emergence of the disciplinary welfaresanction has ‘blurred the boundaries’ between the welfare and criminaljustice nets in two important respects.37

Firstly, with the development of ‘disciplinary welfare’ strategies, ‘bound-ary blurring’ occurs within the delinquent category itself, as evidenced bymy research (Gray 1994) into the way in which sentencing decisions arefrequently based on young people’s level of unruly behaviour or domesticproblems rather than the nature of their crimes or criminal careers.Secondly, ‘boundary blurring’ takes place when a ‘child in need’ can betreated in a similar manner to a ‘delinquent’ even though he/she38 has notcommitted an offence. A number of such young people (brought before thecourt for such status offences as not attending school, running away fromhome, and being beyond parental control) may also end up on supervisionor in residential care because of their problematic behaviour rather thanbecause of neglect, deprivation or abuse. Thus even though delinquent andproblematic youth go through quite distinct legal proceedings and correc-tional programmes, by diluting the distinction between the two categoriesand emphasising their common behavioural problems, the disciplinarywelfare sanction expands the opportunities for official intervention into thelives of young people. Young people who escape one net may be scooped upby the other, thus reducing their chances of escaping the scope of thecontrol system (see note 37).

In effect the colonial state in Hong Kong operates a policy of ‘trifurca-


tion’ in the regulation of working-class youth. This provides a complexcontinum of tutelary supervision, which covers every level of unruly behav-iour. For the delinquent whose criminal activities are categorised in thehigher levels of unruliness, a wide range of normalising and correctivemeasures exist within the tutelary complex. For the medium level of unruli-ness displayed by problem youth, a selection of welfare-based disciplinaryprogrammes are provided in other parts of the ‘social’ sector. Finally for themildly unruly, one finds the preventative normalisation packages on offerthrough outreaching and school social work. Young people can readily beplaced along this continuum according to their need for disciplinarynormalisation and control. In the final analysis, as Cohen (1985) argues,boundary blurring activities enhance the jurisdiction and surveillance capa-bilities of the youth control network, yet disguise the nature and ownershipof the controls, thus creating a hidden economy of power.

Penetrating the SocialThe propagation of the disciplinary welfare sanction has not only widened andstrengthened the net of control, and blurred the distinction between unrulyand delinquent youth, it has also allowed formal State agencies to penetratemore deeply into the informal networks of society. Cohen (1985) sees thisas a ripple effect with greater direct involvement of the family, school andcommunity agencies in the day-to-day business of delinquency management,allowing these primary ‘social’ institutions to be invaded by the State.

Throughout the history of the Hong Kong tutelary complex, probationsupervision has acted as the main strategy of penetration. This is reflectedby the way in which magistrates may place special conditions in probationorders regarding the juvenile’s place of residence, attendance at school,adherence to school rules, peer associates and use of leisure. But the consol-idation of the disciplinary welfare sanction in the 1980s and 1990s, with itsstress on viewing delinquency as a breakdown in social bonds, has furtherlegitimated the powers of the probation service as an agency of penetration.However the ability to penetrate informal social networks is not restricted tothe probation service; other tutelary measures carry similar powers. In HongKong, reformatory school, detention centre and training centreprogrammes are all followed by long periods of after-care supervision (seenote 28), which have gradually been extended since the 1970s. In the caseof the training centre, the length of after-care supervision currently lasts forthree years upon the juvenile’s discharge from the institution.39 During thisperiod the juvenile’s behaviour is kept under the ‘watchful eye’ of the after-care officer through regular home visits. Juveniles may be recalled to thecentre at any time for breaching the behavioural conditions of the after-careorder even though they may not have committed any further offence (Lawsof Hong Kong 1995b).

The family is the primary target of these penetrative strategies, becauseof its pivotal position in the ‘normalisation’ of youth. However, with thespread of the disciplinary welfare sanction in the 1980s and 1990s, the bound-aries of penetration have moved beyond the family and the whole commu-nity has been mobilised to participate in the regulation of young people.


During this period a series of moral panics have surfaced in Hong Kong, notonly on the subject of juvenile crime but also covering a number of othernormalisation ‘blackspots’ in the behaviour of working-class youth, such asdrug abuse, suicide, consumerism, promiscuity and deteriorating moralvalues (Hong Kong Council of Social Service 1989). Each new panic hasresulted in a tightening of control over the lives of young people, reflectedin the expansion of outreaching and school work programmes (see note25). Whilst school social work attempts to monitor young people’s behav-iour at school, outreaching social work infiltrates youth subculture in work-ing-class neighbourhoods. Explicitly these programmes are portrayed asdevelopmental measures to support youth through the turbulent periods ofadolescence, but implicitly they provide opportunities to penetrate moredeeply into the informal lives of young people whether it be at home, atschool or in the neighbourhood.

Whither the Community Corrections Movement in Hong Kong?In the UK the expansion of community corrections programmes has beenan important strategy of the dispersal of control (Cohen 1985; Vass 1989).However such programmes have been slow to appear in Hong Kong, andresidential and custodial training remain a core component of the tutelaryweb.40 Many UK criminal justice policies have been adopted in Hong Kong(for example community service orders arrived in 1987), so why has this notbeen the case with community treatment? Donzelot (1979) argues that thetutelary complex is part of a wider ‘social’ network (see note 8), whichprovides a comprehensive continuum of surveillance over working-classyouth. In the UK this complex plays a major role in the management of juve-nile crime, while youthwork services (a less formal component of the‘social’) have been discredited as effective mechanisms of delinquencycontrol (Davies 1986).41 However, this is quite different from the situation inHong Kong, where youthwork agencies have retained a much bigger slice ofthe delinquency management cake.

The disciplinary welfare sanction places greater emphasis on the ‘preven-tion’ rather than the ‘cure’ of juvenile crime. Originally it was intended thatthis would be achieved by strengthening the regulation of young peoplewithin the family, school and neighbourhood through the expansion offamily life education, school and outreaching social work projects (SocialWelfare Department 1977). In this scenario the tutelary complex wasexpected to play only a peripheral role in the regulation of unruly youth,and it has been felt unnecessary to further expand this role into the commu-nity as community control is already adequately managed by other parts ofthe ‘social’ sector. By the time young people enter the tutelary complex theyare regarded as the failures of other deviancy control nets, and so in needof more intensive correction, preferably whilst excluded from the commu-nity. Therefore, unlike the UK, the dispersal of control in Hong Kong hasmainly been effected through informal ‘social’ mechanisms rather thanthrough the development of statutory community-based tutelaryprogrammes.42

However, over the last decade growing disquiet has been expressed in


official circles about the effectiveness of school and outreaching social work.It is interesting to note that the Social Welfare Department has recentlyestablished a community support scheme for juvenile probationers and ex-refor-matory school inmates on an experimental basis (Hong Kong Government1995). This takes the form of a type of day-centre facility, where juvenileoffenders receive education, social skills and vocational training in a semi-structured environment.43 The scheme could hardly be described as progres-sive, as it was developed not as an alternative to residential training orcustody, but as a means to supplement and strengthen existing disciplinarymeasures. Nevertheless, it possibly reflects that the tutelary complex inHong Kong, like its UK counterpart, is about to move beyond its peripheralstatus in the delinquency management hierarchy!

Conclusion

This article has presented a somewhat Orwellian view of the impact of thedisciplinary welfare sanction in the Hong Kong tutelary complex. But as Cohen(1989) points out control, like reform, does not always work as intended.The juvenile justice system is a site of strategic manoeuvring, which providesopportunities for the pursuit of both hegemonic class interests and anumber of other struggles. Working-class youth can, and do, resist normal-ising corrective measures, and recent juvenile justice policies in the West,while facilitating the dispersal of control, have also created the possibility ofa more humane and just response to juvenile crime. For example, theexpansion of community corrections programmes has undoubtedly reducedthe number of young people in custody (Gelsthorpe and Morris 1994), andmade available a variety of valuable social resources to deprived working-class delinquents. In addition, the development of ‘reparative’ and ‘reinte-grative’ forms of juvenile justice has likewise been progressive (cf. Morrisand Maxwell 1993; Braithwaite and Mugford 1994), and possibly reflects thefulfilment of Bottoms’s (1983) prediction concerning the spread of ‘juridi-cal’ as opposed to ‘disciplinary’ modes of punishment. Therefore, asMatthews (1987, pp. 50–1) argues, to view the juvenile justice system assolely an endless ‘web of control’ is to adopt a stance of ‘impossibilism’ inwhich all reform is doomed to failure.

In Hong Kong the disciplinary welfare sanction emerged from a series ofconflicts and compromises which articulated the strategic interests of severalsocial forces apart from the hegemonic classes. Such interests are obviouslydynamic in nature and, under normal circumstances, it is conceivable thatmore just, egalitarian and non-disciplinarian juvenile justice policies couldevolve to mirror developments in the West. However, Hong Kong does notface ‘normal circumstances’ in its immediate future. I refer, of course, to thereturn of the colony to the sovereignty of the People’s Republic of China(PRC) on 1 July 1997.

Under the terms of the 1984 Sino-British Joint Declaration, Hong Kongwill become a Special Administrative Region (SAR) within the PRC but,based on the concept of ‘one country, two systems’, should enjoy a highdegree of autonomy (Miners 1995). The Basic Law, completed in 1991,


details the constitutional arrangements by which the concept will be imple-mented in the new Hong Kong SAR. The overriding principle is that HongKong will retain its existing capitalist economy, judicial system and generalway of life for the next 50 years. Existing legislation, institutions and admin-istrative procedures will remain unchanged unless amended by the new SARLegislative Council (Wacks 1993).

On paper it would therefore appear that there will be no major changesin the Hong Kong juvenile justice system for the foreseeable future. It couldobviously be more optimistically argued that the benevolent sovereignty ofa Socialist government could herald a new era of more progressive socio-political policies. However, as the hand-over draws closer it has become clearthat the latter argument could probably be over-optimistic. The PRC govern-ment views the survival of capitalism in Hong Kong as a valuable aid to itsown economic reforms and development strategies. Nevertheless, it will notallow the new SAR to develop in a manner which could threaten socialstability in the rest of China. A realignment of hegemonic class factions iscurrently taking place in Hong Kong, and pro-China, local business elites,who are seen by the PRC as competent business partners in the futureeconomic advancement of China and unlikely to allow changes in HongKong which do not meet with the approval of the central government, areemerging as the new political leaders of Hong Kong (Leung 1996).Demands by the burgeoning middle class44 in Hong Kong to accelerate thepace of democratic participation have been met with hostile resistance bythe PRC government, and the newly emerging power bloc in Hong Kong issupporting this stance.

In such a political landscape, any challenges to existing delinquencymanagement strategies, particularly when they have proved so successful inthe past in discretely ‘policing’ the perceived threat posed by unruly work-ing-class youth to stability and prosperity, are unlikely to find favour with thenew SAR government or the PRC. Indeed, they could be firmly suppressed!In addition, the PRC government, like the liberal-consultative state in HongKong, has often mobilised elements of Confucian philosophy in its efforts tomaintain consent to its rule, suppress human rights and even regulate youthmisbehaviour. The disciplinary welfare sanction bears a striking resemblance todelinquency management strategies in the PRC, where juvenile crime issimilarly viewed as a behavioural problem caused by inadequate moral train-ing and a breakdown in parental and community controls (Curran andCook 1993), and the socialist, corrective principles of ‘reform througheducation and labour’ carry strong Foucauldian disciplinary overtones(Dutton 1992). Thus the change in sovereignty in 1997 is likely to reinforceand strengthen the disciplinary welfare sanction in Hong Kong, rather thanpose a challenge to it.

Despite the likelihood that the disciplinary welfare sanction will continue todominate the juvenile justice system in Hong Kong for some time to come,there could be some hope for change on the horizon. Such a possibilitystems from two areas. First, recent struggles by both local and internationalpressure groups to ensure that human rights and civil liberties areadequately safeguarded in the new SAR, could possibly have a spin-off effect


within the juvenile justice system. Second, recent research has found thatacademics in the PRC are showing increased interest in legal and humanrights issues, and as Chen (1993, pp. 146–7) points out ‘elements of this new“liberal” or “enlightened” thinking have even found their way into officialstatements issued by the top government and party authorities’. Whilestrengthening young offenders’ procedural rights may do little to redressthe substantive class bias institutionalised in the judicial process (cf. Carlen1976; McBarnet 1981), it would be a progressive first step in the Hong Kongcontext.

Notes1 An earlier version of this article was presented at the Australian and New Zealand

Society of Criminology Conference, Victoria University of Wellington, NewZealand, January 1996.

2 This approach is derived from a critical analysis of Marxist and Foucauldianaccounts of the dynamic interaction between the State, penal system, ideologyand discourse. See Gray (1993) for a discussion of the origins of this approach andits debt to Jessop’s (1990) work on the capitalist state.

3 [i] Smart argues that the law is both ‘gendered’ and a ‘gendering strategy’. Thesame argument can be applied to delinquency management strategies. However,this article will focus on the ‘classed’ dimensions of these strategies. Most girlsinitially come to the attention of the Hong Kong juvenile court because of theirbehavioural problems (such as running away from home and underage sex), andare therefore processed through ‘care and protection’ rather than ‘criminal’proceedings. I am currently engaged in a research project exploring girls’ expe-riences in the childcare/juvenile justice system and the unique gendering processby which their ‘unruly’ behaviour is both ‘criminalised’ and ‘classed’.[ii] See Gray (1993, 1995) for an analysis of how class, cultural, moral and bureau-cratic-administrative concerns are interwoven into the construction of juvenilejustice policies in Hong Kong.

4 This argument is derived from Giddens’s (1984) theory of structuration.5 This analysis draws on Jessop’s (1990) strategic-relational approach to the State.

The same argument can be used to explain the codification of gendering power.6 Again Giddens’s theory of structuration goes a long way to understand the micro-

dynamics of this process. Also see Gray (1995) for a discussion of how the indi-vidualising, normalising and corrective strategic properties embedded in juvenilejustice discourses are used to articulate and codify cultural and class power in thesentencing of young offenders in the Hong Kong juvenile court.

7 This would undoubtedly also include a number of other non-class interests tostrengthen its appeal and legitimacy.

8 Donzelot (1979) describes the tutelary complex as that part of the ‘social’ (a strategicterrain lying between the State and civil society comprising a variety of policies andpublic services to regulate the health and social development of young people),which polices or supervises delinquent working-class youth and their families. Thejuvenile court serves as the nucleus of this institutional apparatus.

9 The Ordinance remains in force in the 1990s, with only minor amendments.10 The Ordinance included a number of other more justice based clauses to protect

the juvenile’s legal rights.11 Little is known of the early years of the Hong Kong juvenile court from its incep-

tion in 1932, because most of the records were destroyed during the SecondWorld War (Mak 1973).

Blackwell Publishers Ltd. 1997

202

12 In 1968, 48% of juveniles convicted of indictable offences were placed on proba-tion (Hong Kong Government 1969).

13 These debates appear in Hong Kong Government (1967, 1965). As a corollary toGarland’s (1990) argument, cultural and moral sensibilities were also articulatedin these debates.

14 During the 1970s, the basis of the Hong Kong economy changed from manufac-turing to higher technology goods to financial services. This led to a restructuringof the ‘social base of support’ amongst the dominant capitalist elites. British capi-talist interests declined and local Chinese business elites came to take on a muchmore important role in the Hong Kong economy. The new alignment of capital-ist class factions which emerged from this process, together with the rise andexpansion of the ‘new service class’, could be seen to form a new ‘hegemonicpower bloc’ (Leung 1994).

15 Stemmed only briefly by the worldwide recession caused by the oil crisis in 1973.16 Chow (1986, p. 406) describes the 1970s as the ‘golden age for social develop-

ment’, with the rapid development and expansion of housing, education, healthand social welfare services.

17 This was in no way intended to provide full-scale democracy, but promoted agreater sense of community participation through the inclusion of district-levelelites in political affairs (Scott 1989).

18 Pearson (1983) would describe this as a ‘moral panic’ or a period of time whenthe general public displace all their fears and uncertainties about socio-politicalconditions into a heightened concern over the behaviour of young people, whoare then defined as a serious threat to societal values and interests.

19 Analysis of debates on youth crime in Legislative Council (Hong KongGovernment 1970 and 1971).

20 Juvenile court statistics also reveal a tougher approach towards sentencing in theearly 1970s with a substantial increase in residential and custodial disposals (HongKong Government 1970 and 1974).

21 Hall et al. (1978) and Hall (1988) imply that this process was more fractured andcontradictory than this term suggests. Indeed this was the case in Hong Kong.

22 This is reflected by a drop in the use of both residential and custodial disposals inthe juvenile court (Hong Kong Government 1977).

23 These arose from the world recession in the early 1980s, the signing of the JointDeclaration in 1984 governing Hong Kong’s return to China, the stock marketcrash in 1987, and finally the repercussions of the Tiananmen Massacre in 1989(Wong and Cheng 1990).

24 This new set of discourses first appeared in Ng (1975), but only gained officialrecognition as the dominant criminological explanation from the late 1970sonwards.

25 In 1981 school social workers provided service to 314,685 students in 297 schools.By 1995 this had increased to 448,449 students in 433 schools. Similarly in 1981there were only 18 outreaching social work teams, but by 1995 the figure had risento 30 (Hong Kong Government 1981b, 1995).

26 Juridical and punitive discourses were also evident, so named because the formeris very similar to the ‘justice’ and the latter to the ‘law and order’ models of crim-inal justice (Gray 1994).

27 This classification scheme is a good example of Foucault’s (1977, 1980)power/knowledge axis. See Gray (1995) for an elaboration of this argument.

28 Juveniles may be placed on probation for periods of from one to three years,which may include a requirement to reside in a probation home for up to twelvemonths as part of the probation order. A reformatory school order (juvenilesaged seven to below 16 years) is an indeterminate sentence of from one to three


years (the average is 18 months), with after-care supervision up to the end of theorder after discharge. The period of stay in a training centre (young peopleaged 14 years and above) is indeterminate, ranging from a minimum of sixmonths to a maximum of three years (average is 18 months), with a three-yearperiod of after-care supervision upon discharge. Juveniles (aged 14 years andabove) may be detained in a detention centre for a minimum of three monthsand a maximum of twelve months, with a one-year period of after-care supervi-sion upon discharge. Probation homes and reformatory schools are referred toas residential training in the text, and detention centres and training centres ascustody. There are no reformatory schools or detention centres for girls inHong Kong.

29 See Gray (1995) for a discussion of how ‘disciplinary normalisation’ is trans-formed into a strategy of hegemonic class power.

30 In 1987, 58% of juvenile offenders were cautioned, but by 1993 this had fallen to42% (Royal Hong Kong Police Statistician).

31 Conviction rates for the 1980s and 1990s were provided by the Judiciary fromunpublished data, and those for the late 1970s appear in Hong Kong Government(1980).

32 In 1994 several community support service teams were established by youthworkagencies targeted at juvenile offenders referred by the police following a caution(Working Party on Children and Youth Centre Services 1994).

33 Pratt (1986) originally made this argument with reference to UK cautioning prac-tices. In the 1990s cautioning appears to be more closely monitored (Gelsthorpeand Morris 1994), so it is debatable whether this argument still applies there inthe same way.

34 Sentencing statistics for the 1990s provided by the Judiciary from unpublisheddata.

35 See Gray (1995) for an analysis of how cultural ‘norms’ about parental discipline,behaviour at school and the work ethic implicit in the disciplinary welfare sanctionare used to reinforce hegemonic class power.

36 Young people with behavioural problems enter the Hong Kong juvenile courtunder the Protection of Children and Juveniles Ordinance (Laws of Hong Kong1995a). The court may require the juvenile to be placed on open supervisionunder the care of a social worker from the Social Welfare Department or in resi-dential care. Most of the residential facilities for young people with behaviouralproblems are run by voluntary agencies, although the juvenile may be subject toa statutory order. In the case of girls two of the main residential establishmentsare run by nuns!

37 This argument was first developed by Cohen (1985) in relation to the concealedeffects of community corrections in the West.

38 This is how the majority of working class girls are differentially dealt with in thejuvenile court (see note 3).

39 Until 1974 young offenders could be detained in a training centre for a minimumof nine months and a maximum of three years, with after-care supervision to adate four years from the date of conviction. In 1974 the Training Centres Ordinancewas amended so that detainees could be sentenced to an indeterminate periodbetween six months and three years, but with three years after-care supervisionupon release; in 1977 the Detention Centres Ordinance was amended such that theperiod of after-care supervision was extended from six to twelve months(Commissioner of Prisons 1979).

40 In 1992, 18.3% of juvenile offenders were sentenced to residential training and11.9% to custody in the juvenile court (unpublished data provided by theJudiciary).


41 This situation appears to be changing in the 1990s with greater attempts to involveyouthwork agencies in delinquency prevention (NACRO 1991).

42 This is a direct appeal to Chinese cultural sensibilities, in which the ‘prevention’of deviancy through primary channels of normalisation such as the family, smallgroup and community is deemed far more effective than ‘cure’ through the useof external constraints.

43 The community-based aspect is that juveniles return to their families or hostels inthe evening.

44 This arises from the emergence of Hong Kong as a commercial and financialcentre, and the subsequent growth of the service sector.

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Date submitted: July 96Date accepted: January 97


the emergence of the disciplinary welfare sanction in hong kong

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