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25.
In particular, the provision for a mandatory sentence
only becomes effective "on summary conviction".
Section 36
of the Magistrates Ordinance (Cap. 227) and section 3(1) of
the Probation of Offenders Ordinance (Cap. 298) enable a
magistrate, even where he is satisfied that a charge is proved,
to make an order discharging an offender, or make a probation
order, without proceeding to conviction. These two sections
have been used so as to avoid convicting a person charged with
an offence under section 33; this means that the requirement
that imprisonment or a detention order must be imposed can be
evaded, since this requirement only operates on conviction.
26. It can be argued that a loophole of this nature is
useful, if used only in rare cases in which public sympathy
might reasonably be on the side of the offender if he were
sent to prison. For example, a six months' prison sentence
on a boy aged 14 years and 3 months would be undesirable.
However, its use on more than very rare occasions would destroy
the main advantage of the section, which is that severe punish-
ment is certain if an offence under the section is proved.
+
27. It is therefore proposed that section 33 should be
recast so as to make it clear that, where a person is charged
with an offence under section 33 of the Public Order Ordinance,
the magistrate may not make use either of section 36 of the
Magistrates Ordinance or of section 3(1) of the Probation of
Offenders Ordinance.
28. Section 11(2) of the Juvenile Offenders Ordinance
(Cap. 226) provides that no young person (i.e. a person over
13 and under 16 years) shall be sentenced to imprisonment if
he can be suitably dealt with in any other way. Some magistrates
have relied on this section as relieving them of the obligation
to sentence an offender convicted under section 33 to prison or
: