The Queen v. Leung Kwai Fun

HCMA000344/1986

[Progress reports not to be ordered as condition of probation order.]

BETWEEN

Coram: Roberts, C.J., Power & Clough, JJ.A.

Date of Hearing: 5 June 1986

Delivery of Judgment: 12 June 1986

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JUDGMENT

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Roberts, C.J. -

1. The appellant, LEUNG Kwai-fun, who was born on 8th December, 1969, pleaded guilty before a magistrate on 24th October, 1985, to one charge of possession of dangerous drugs for the purpose of unlawful trafficking and another of possession of apparatus fit and intended for the injection of dangerous drugs.

2. The magistrate adjourned the matter until the 15th November, 1985, for a probation report. On that day, he made a probation order with a number of special conditions, one of which was said to have been that she should appear in court on 19th February, 1986, for the submission of a progress report.

3. On 19th February, 1986, the appellant duly appeared before the magistrate in order that the progress report might be considered.

4. A report by the probation officer dated 17th February was read to the appellant and her mother. In view of its contents, the magistrate adjourned the matter for a further probation order and a training centre report.

5. On 5th March, after considering these reports, the magistrate discharged the probation order and substituted a training centre order against the appellant.

6. The appellant appealed against this order to the High Court. when this matter cane before a High Court Judge, on 9th May, 1986, the judge reserved the appeal to this court under section 118(1)(d) of the Magistrates Ordinance on the ground that a number of matters of some general importance were raised in it. With each of these matters we now deal separately.

Recording of Conviction

7. The first magistrate, who imposed a probation order on 15th November, 1985, ordered that no conviction should be recorded.

8. We take this opportunity to remind magistrates of the proper approach to the recording of convictions. This has been set out in a number of High Court cases, but it is necessary only to refer to YEUNG David v. R.¹, in which the Chief Justice, sitting as a judge of the High Court, dealt with the question as follows -

"Huggins, J., however, in Criminal Appeal No. 176 of 1978, states it as his view that the power not to record a conviction should be exercised sparingly. And Sllke, J., in Criminal Appeal No. 320 of 1981, dealing with an appeal by an 18 year old girl who had stolen goods worth $26.50 from a super-market, set out his approach as follows -

'It is advisable that the non recording of a conviction should, in the majority of cases, be restricted to the rare instance where the Court feels that, while an offence has been committed, no prosecution should really have been brought at all. Deliberate theft is unlikely to be one of those cases and, considering all the elements set out in section 36, which of necessity ere require consideration being given to the appellant's clear record, her age of eighteen years, her desire to further her education overseas and the amount involved in the offence, the sentence passed involving a recorded conviction was a proper form of sentence.'

He ordered that a conviction should be recorded in that case.

I consider that the approach of Silke, J. is the correct one and that a conviction should be recorded save where the court feels that no prosecution should have been brought.

However, I should not like magistrates to think that this closes the door to other cases in which the humanitarian considerations are overwhelmingly strong, notwithstanding that it was perfectly proper to have brought the prosecution."

9. Although that case dealt with the exercise of the poorer conferred on a magistrate not to record a conviction under section 36 of the Magistrates Ordinance, the same principle should apply to the discretion as to whether or not to record a conviction under section 3 of the Probation of Offenders Ordinance.

10. We do not seek to interfere with the magistrate's decision not to record a conviction, since it can well be justified, on the basis that humanitarian considerations are very strong in the case of a girl of 15 who has succumbed to the temptations of dangerous drugs.

11. However, if a magistrate decides to record no conviction, in a case where ordinarily it ought to be recorded on the basis of the tests set in David YEUNG¹, he ought to give reasons for following this course.

Insertion of reporting condition in probation order

12. When making the probation order on 15th November, 1985, the magistrate attached a number of conditions.

13. At the bottom of the probation order there appear in handwriting the words: "progress report 19/2/86."

14. The second magistrate who dealt with the matter on 19th February, treated this entry as amounting to a special condition, that the probationer should appear in court on that date, and that a progress report should be submitted at the same time, Both the probation officer and the appellant appeared before the second magistrate on 19th February on that basis.

15. In our view, it was beyond a magistrate's power to order, as a condition of a probation order, that a probation officer should provide a progress report.

16. We understand the motive behind this practice, which we understand to be fairly widespread. It is a reasonable and laudable desire by magistrates to continue to exercise a degree of supervision over those in respect of whom they make probation orders.   Nevertheless, magistrates roust recognize that the law does not vest supervisory jurisdiction in the Judiciary, since that would be usurping the function of the probation officer, whose duty it is to watch over the probationer and to ensure that he complies with the terms of the order.

17. We, therefore, though not without some regret, feel obliged to direct magistrates that it is improper to impose a requirement for a progress report as a condition of a probation order,

Breach of probation order

18. Section 5 of the Probation of Offenders Ordinance makes it clear that a magistrate should only act to discharge a probation order where he receives information that the probationer has failed to comply with any of the requirements of the order.

19. Such information will normally reach the magistrate by wavy of a report made by a probation officer to the court alleging the failure of the probationer to comply.

20. On receipt of such information, it is the duty of the magistrate to issue a summons requiring, the probationer to appear before him.

21. If it is then proved to the satisfaction of the magistrate before whom the probationer appears that there has been a failure to comply, the court may take further action, as it did in this case.

22. An examination of the record, however, shows that the prescribed procedure was not followed in a number of respects, due mainly no doubt to the inclusion of the requirement for a progress report in the original order.

23. It could, perhaps, be said that the reports put in by the probation officer, in accordance with the requirement for a progress report, amounted to information on which the magistrate could issue a summons, though he did not do so.

24. Although this is a procedural slip which, by itself, would not be of great importance, the magistrate failed to follow the proper procedure in one important respect.

25. The record of the hearing on 5th march reads as follows -

"For T.C. and P.O. reports.

Chinese girl Leung Kwai-fun (born on 8/12/69)

Mother, elder sister present.

Reports read and explained.

Girl: Give me one more chance. I do not want to go to the training centre.  I will behave in future

Mother: Please give her a chance. I will look after her .

Court: Probation order discharged. Defendant to be detained in Training Centre."

26. Before a probation order can be properly discharged, on the ground that there has been a breach of it, it must be, in accordance with Section 5(2) Cap. 298 -

"Proved to the satisfaction of the magistrate's court  ........  that the probationer has failed to comply."

27. The record does not indicate that the girl admitted that she had committed breaches of the probation order, though conduct which would have amounted to such a breach was described in one of the probation reports submitted to the magistrate.

28. Before a failure to comply with a requirement of the probation order can be proved to the satisfaction of the magistrate, there must either be -

(a)	An express admission by the probationer that she has failed to comply; or
(b)	A breach roust be strictly proved by calling the probation officer (and other witnesses if necessary) and giving the probationer an opportunity to cross-examine them if he wishes.

Conclusion

29. In view of the failure of the magistrate to observe the procedures which must be followed before a probation order is discharged, we felt obliged to allow the appeal, though on the material before him it might well have been that the magistrate made the correct order.

30. We therefore allowed the appeal, quashed the Training Centre Order and ordered the discharge of the appellant.

we asked counsel appearing for the Crown to inform the probation officer that the correct procedure now, if she wished to take the matter further, would be for her to formally re-submit her probation reports to the magistrate, accompanied by an up-to-date report from the training centre as to the girl's conduct there since she was committed to it in March 1986.

31. It would then be for the magistrate to issue a summons to the probationer to appear before him so that the question of whether or not she had failed to comply with the order had been established to his satisfaction.

1    Crim. App. 1212 of 1982

Representation:

LEUNG Kwai-fun in person

Mr. A.P. Duckett, Q.C., D.P.C. with Mr. E. Kwok for Respondent.