HKSAR v. MA WAN KI

HCMP 1450/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1450 OF 2013

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R U L I N G

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1.  The range of reports that the magistrate called for is astonishing, from probation to community service to rehabilitation centre to detention centre to training centre. Being the trial judge, one would think that he should at least have an inkling of what constitutes the correct approach in sentencing the applicant. That ambivalence disturbs me. It necessitates my stepping in at this stage lest the ridiculous result may happen that, in the end, the applicant will have lost two weeks of liberty for, say, an order for probation or, to take the example to the extreme, a term of imprisonment of 7 days which I believe is the stiffest sentence that any count has handed out so far for the offence in question.

2.  I understand that, by stepping in, I will be interfering with the magistrate’s sentencing options but, as indicated, I do not think he has applied his mind sufficiently to the matter.  It could be perceived that his order was arbitrary and unreasonable. 

3.  Adopting Line J’s approach in HKSAR v Su Wei, HCMP 2589/2011, I am replacing the bulk of the magistrate’s order with mine.  The applicant will be granted bail on terms to be discussed but the call for suitability reports on probation and community service still stands.