Attorney General v. Lee Tung Lun
Read the full judgment text of HCMA 1502/1989 on BabelCite. This High Court CFI judgment was delivered on 11 January 1990.
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.
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HCMA001502/1989
----------------- HEADNOTE ----------------- 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 ------------------ BETWEEN
----------------- Coram: Bokhary, J in Court Date of hearing: 11 January 1990 Date of delivery of judgment: 11 January 1990 ----------------- JUDGMENT ----------------- 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: -
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: -
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.
Representation: Mr I. G. Cross & Mr W. S. Cheung of the Attorney General's Chambers for the Appellant Respondent in person. | |||||||||||||||||||||||||