TNAG-0396-FCO40-442-Problem-of-increase-in-crime-in-Hong-Kong-1983 — Page 78

2600224 C.S. 84

XCR(73)90

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It can be argued that a loophole of this nature is useful, if it is employed only in those 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, if it were used frequently, this would destroy the main advantage of the section, which is that severe punishment is certain if an offence under it is proved.

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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.

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Section 11(2) of the Juvenile Offenders Ordinance (Chapter 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 a detention centre. It is therefore proposed to provide in the Bill that section 11(2) has no application to a person convicted of an offence under section 33.

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Some criticism has been made by the courts of the fact that no detention centre is yet available for persons over 17 and under 21 years of age. However, the Colonial Secretary recently announced that steps are being taken to convert a wing at Ma Po Ping Addiction Treatment Centre for this purpose. The training of the necessary staff to administer the new detention centre, which will be used for offenders over 17 and under 21, is proceeding. It is expected that the new centre will be able to take its first inmates by about June 1973.

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If the section is to be tightened, so as to ensure that a mandatory sentence is imposed on anyone convicted of an offence under section 33, it is important that there should be a clear and consistent policy in deciding which persons are to be charged under it. It is felt that this can best be achieved by including a provision that the consent of the Attorney General should be required before a prosecution under this section is instituted. (New section 33(5)).

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