ATTORNEY GENERAL v. LEE TUNG LUN

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HEADNOTE

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IT IS NO LONGER POSSIBLE TO DISMISS A CHARGE AND AT THE SAME TIME PUT THE OFFENDER ON PROBATION.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1502 OF 1989

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JUDGMENT

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1. This is an appeal by way of case stated. It is, I am informed by Mr Cross who appears on behalf of the appellant, a test case.

2. The respondent is a boy of 13 ½ years and therefore a "child" within the meaning of the Juvenile Offenders Ordinance, Cap. 226.

3. On July 5, last year he, together with a number of others, stole $20 from a light goods vehicle which had been parked in an open space in Tuen Mun. He was charged with theft; and he admitted the offence.

4. On October 10, last year the learned magistrate, before whom he appeared, Mr D.L. Duggan sitting in the Tuen Mun Magistracy, dealt with him under section 15(1) of the Juvenile Offenders Ordinance which - in so far as is material provides :-

The learned magistrate dismissed the charge, and put the respondent on probation for 12 months.

5. That is something which could have been done prior to August 1, 1986. Until then section 3(1) of the Probation of Offenders Ordinance, Cap. 298, read: -

"Where a court by or before which a person is tried for an offence (not being an offence the sentence for which is fixed by law) is of opinion that having regard to the circumstances, including the nature of the offence and the character of the offender, it is expedient to do so, the court may, with or without proceeding to conviction, make a probation order, that is to say, an order requiring him to be under the supervision of a probation officer for a period to be specified in the order of not less than 1 year nor more than 3 years."

6. That subsection was amended with effect from August 1, 1986, by section 8 of the Rehabilitation of Offenders Ordinance, Ordinance No. 55 of 1986, which amended the subsection by deleting therefrom the words "with or without proceeding to conviction" and substituting therefor the words "after conviction". So since August 1, 1986, the subsection that is to say section 3(1) of the Probation of Offenders Ordinance - has. read as it now reads, which is as follows: -

"Where a court by or before which a person is tried for an offence (not being an offence the sentence for which is fixed by law) is of opinion that having regard to the circumstances, including the nature of the offence and the character of the offender, it is expedient to do so, the court may, after conviction, make a probation order, that is to say, an order requiring him to be under the supervision of a probation officer for a period to be specified in the order of not less than 1 year nor more than 3 years.”

7. Thus, it is no longer possible to dismiss a charge and at the same time put the offender on probation. In other words, it is no longer possible to combine items (a)and (c) of section 15(1) of the Juvenile Offenders Ordinance. It has not been since August 1, 1986.

8. The question of law which the learned magistrate asks this Court is whether he "...erred in ordering that the charge should be dismissed under section 15(1)(a) of the Juvenile Offenders Ordinance, Chapter 226 while ordering that the respondent be placed on probation". The answer to that question is "Yes". The learned magistrate did err.

9. Accordingly, the case is remitted to him to deal with it in accordance with the opinion of this Court. That does not compel him to record a conviction. If he considers it appropriate to do so, he may refrain from making a probation order and simply dismiss the charge. In deciding whether or not that course would be appropriate, he would presumably want to know how the respondent has been behaving since he was put on probation. For that purpose he would presumably want to have the views of the respondent's probation officer.Mr Cross - in the course of his typically helpful submission - suggested that at the same time as remitting the case to the learned magistrate, I order that the respondent's probation officer make a report to the learned magistrate on the respondent's progress, and that I direct that the case come before the learned magistrate when the report is available. That course seems to me eminently sensible; and I make an order accordingly.