HKSAR v. SZE WUT PUT

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 626 OF 1997

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REASONS FOR DECISION

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1. The appellant, aged 16, pleaded guilty to one count of possession of obscene articles for the purpose of publication, contrary to Section 21(1)(b) of the Control of Obscene Articles Ordinance. Upon his plea, the learned magistrate called for a Probation, Training Centre and Detention Centre Reports.

2. The first Probation Officer's Report, when it became available, was not entirely in the appellant's favour. A further report was requested and the second report was favourable. During the interim period between the reports, the probation officer observed that the defendant was trying to rehabilitate himself.

3. In considering the sentence, the learned magistrate had considered the contents of the report and the circumstances of the case. I accept that offences of this nature are prevalent in Hong Kong. The learned magistrate considered Community Service Order as an option, but for reasons only known to him, he did not consider Probation Order a viable option.

4. There are no tariff or guidelines for cases of this nature. However, the strength of the authorities are that if the defendant is an adult, a period of imprisonment plus a fine is appropriate. But then again the defendant is 16, pleaded guilty to the charge. This shows that you have a sense of remorse.

5. I think it was wrong in principle to impose the Detention Centre Order as the learned magistrate did. I note that you had been in custody for some two months between April and June, and that the learned magistrate could have overlooked that this is a one-off transgression of the law.

6. The appeal against sentence is allowed. The Detention Centre Order is set aside. A Probation Order is substituted. The defendant is put on open probation for 12 months with the conditions that he is to reside and work as directed by the Probation Officer.