PROBATION OF OFFENDERS ORDINANCE

PROBATION OF OFFENDERS ORDINANCE

LAWS OF HONG KONG

PROBATION OF OFFENDERS ORDINANCE

CHAPTER 298

OF

REVISED EDITION 1987

PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER
HONGKONG





CHAPTER 298

PROBATION OF OFFENDERS ORDINANCE

ARRANGEMENT OF SECTIONS

Section
Pag
e

1. Short title . ... ... ... ... ... ... ... ... ... ... ... ... ... ... 2
2. Interpretation ... ...
... ... ... ... ... ... ... ... ... ... ... ... 2
3. Probation ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 2
3A. Restriction on punishment of probationer ... ... ... ... ... ... ... ... 4
4. Discharge, amendment and review of probation orders ... ... ... ... ... 4
5. Breach of requirements of probation order ... ... ... ... ... ... ... ... 5
6. Commission of further offence ... ... ... ... ... ... ... ... ... ... ... 6
7. Supplementary provisions as to probation and discharge ... ... ... ... ... 7
8. [Repealed 1 ... ... ...
... ... ... ... ... : . ... ... ... ... ... ... 8
9. Appointment of probation officers ... ... ... ... ... ... ... ... ... ... 8
10. [Repealed 1 ... ... ...
... ... ... ... ... ... ... ... ... ... ... ... 8
11. Approved institutions ... ... ... ... ... ... ... ... ... ... ... ... ... 9
1 1A. Charges for food and accommodation ... ... ... ... ... ... ... ... ... 9
12. Governor in Council may make rules ... ... ... ... ... ... ... ... ... 9
12A. Forms ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 9
13. Saving ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 9





CHAPTER 298

PROBATION OF OFFENDERS

To provide for the probation of offenders.

[7 December 1956.1

1. This Ordinance may be cited as the Probation of Offenders
Ordinance.

2. (1) In this Ordinance, unless the context otherwise requires

'approved institution' means an institution approved under section 11;

'conditional discharge' means a conditional discharge made under the
provisions of section 36 of the Magistrates Ordinance or section
107 of the Criminal Procedure Ordinance;

'principal probation officer' means the person appointed to be the
principal probation officer under section 9;

'probation officer' means a person appointed to be a probation officer
under section 9;

'probation order' has the meaning assigned to it by section 3;

'probation period' means the period for which a probationer is placed
under supervision by a probation order;

'probationer' means a person for the time being under supervision by
virtue of a probation order.

(Amended, 26 of 1976, s. 2)

(2) For the purposes of this Ordinance, except section 3(7), where a
probation order or an order for conditional discharge has been made on
appeal, the order shall be deemed to have been made by the court from
which the appeal was brought. (Added, 7 of 1987,s. 2)

3. (1) 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. (Replaced, 54

of 1961, s. 2. Amended, 20 of 1971, s. 2 and 55 of 1986, s. 8)





(2) A probation order may in addition require the offender to
comply during the whole or any part of the probation period with such
requirements as the court, having regard to the circumstances of the
case, considers necessary for securing the good conduct of the offender
or for preventing a repetition by him of the same offence or the
commission of other offences:

Provided that (without prejudice to the power of the court to make
an order under section 7(2)) the payment of compensation under that
section shall not be included among the requirements of a probation
order. (Amended, 48 of 1972, s. 4)

(3) Without prejudice to the generality of subsection (2), a
probation order may include requirements relating to the residence of the
offender:

Provided that

(a)before making an order containing any such requirements, the
court shall consider the home surroundings of the offender;
and

(b)where the order requires the offender to reside in an approved
institution, the name of the institution and the period for which
he is so required to reside shall be specified in the order, and
that period shall not extend beyond 12 months from the date of
the order.

(4) Before making a probation order, the court shall explain, or cause
to be explained, to the offender in a language understood by him the
effect of the order (including any additional requirements proposed to be
inserted therein under subsection (2) or (3) ) and that if he fails to comply
therewith or commits another offence he will be liable to be sentenced for
the original offence; and if the offender is not less than 14 years of age
the court shall not make the order unless he expresses his willingness to
comply with the requirements thereof.

(5) A probationer shall be subject to the supervision of the
probation officer appointed or assigned to the area in which such
probationer may from time to time reside, or to such other probation
officer as the principal probation officer may nominate.

(6) The probation officer under whose supervision a woman or girl
is placed shall be a woman.

(7) The court by which a probation order is made, or any court by
which an order is made under section 4(2) amending any such probation
order, shall forthwith give copies of such order, or such amending order
as the case may be, to the probation officer responsible for the
supervision of the probationer and he shall give a copy thereof to the
probationer and to the person in charge of any institution in which the
probationer is or was by such order or such amending order required to
reside.





3A. An offender in whose case a probation order is made may in
addition be sentenced under the Corporal Punishment Ordinance to be
caned, but save as aforesaid an offender in whose case a probation
order is made shall not be sentenced.

(Added, 20 of 1971, s. 3)

4. (1) Any court may upon application made by the probation
officer responsible for the supervision of an offender or by a probationer
discharge a probation order:

Provided that if the probation order was made by the High Court or
by the District Court such order shall not be discharged except by the
court which made the order. (Replaced, 54 of 1961, s.3)

(2) Any court may, upon application made by the probation officer
responsible for the supervision of an offender or by a probationer, by
order amend a probation order by cancelling any of the requirements
thereof or by inserting therein (either in addition to or in substitution for
any such requirement) any requirement which could be included in the
order if it were then being made by that court in accordance with the
provisions of section 3(2): (Amended, 54 of 1961, s. 3)

Provided that

(a)a court shall not amend a probation order or reducing the
probation period, or by extending that period beyond the end
of 3 years from the date of the original probation order;

(b)a court shall not so amend a probation order that the
probationer is thereby required to reside in an approved
institution for any period exceeding 12 months in all; and
(Amended, 54 of 1961, s. 3)

(e)where the probation order was made by the High Court or the
District Court, the order shall not be amended except by the
court which made the order. (Added, 54 of 1961, s.3)

(3) Where a court proposes to amend a probation order under this
section, otherwise than on the application of the probationer, it shall
summon him to appear before the court; and if the probationer is not
less than 14 years of age, the court shall not amend a probation order
unless the probationer expresses his willingness to comply with the
requirements of such probation order as amended:

Provided that this subsection shall not apply to an order cancelling
a requirement of a probation order or reducing the period of any
requirement thereof.

(4)-(5) [Deleted, 76 of 1979, s. 21

(6) Where, under any of the provisions of this Ordinance, a
probation order is discharged or amended or the probationer is
sentenced for the offence for which he was placed on probation, the





court shall send for the record in which the original order of probation
appears and shall endorse thereon any order it may make or any
sentence it may pass, as the case may be, and where the probationer is
sentenced for the offence for which he was placed on probation, the
probation order shall cease to have effect. (Replaced, 54 of 1961, s. 3)

5. (1) If at any time during the probation period it appears on
information to a magistrate that the probationer has failed to comply with
any of the requirements of the order, the magistrate may issue a
summons requiring the probationer to appear at the place and time
specified therein, or may, if the information is in writing and on oath,
issue a warrant for his arrest. (Amended, 54 of 1961,s. 4)

(2) If it is proved to the satisfaction of the magistrate's court before
which a probationer appears or is brought under this section that the
probationer has failed to comply with any of the requirements of the
probation order, the court may, without prejudice to the continuance of
the probation order, caution him or impose on him a fine not exceeding
$500, or may- (Amended, 54 of 1961, s. 4 and 76 of 1979, s. 3)

(a)if the probation order was made by a magistrate's court, deal
with the probationer for the offence in respect of which the
probation order was made, in any manner in which the court
could deal with him if he had just been tried for or convicted of
that offence by or before that court or refer the case to the
court by which the probation order was made;

(b)if the probation order was made by the High Court or District
Court, commit him to custody or release him on bail (with or
without sureties) until he can be brought or appear before the
High Court or the District Court, as the case may be.

(3) Where the magistrate's court deals with the case as provided in
subsection (2)(b), then

(a)the court shall send to the High Court or the District Court a
certificate signed by the magistrate, certifying that the
probationer has failed to comply with such of the require~
ments of the probation order as may be specified in the
certificate, together with such other particulars of the case as
may be desirable; and a certificate purporting to be so signed
shall be admissible as evidence of the failure before the High
Court or District Court; and

(b)where the probationer is brought or appears before the High
Court or District Court, and it is proved to the satisfaction of
such court that he has failed to comply with any of the
requirements of the probation order, the court may deal with
him, for the offence in respect of which the





probation order was made, in any manner in which the
court could deal with him if he had just been tried for or
convicted of that offence by or before that court.

(4) A fine imposed under this section in respect of a failure
to comply with the requirements of a probation order shall be
deemed for the purposes of any enactment to be a sum adjudged to
be paid by a conviction (which expression includes any costs or
compensation adjudged to be paid by the conviction of which the
amount is ascertained by the conviction). (Amended, 54 of 1961,
s. 4 and 48 of 19 72, s. 4)

6. (1) If it appears to a judge or magistrate on whom
jurisdiction is hereinafter conferred that a person in whose case a
probation order or an order for conditional discharge has been
made has been convicted by any court in the Colony of an offence
committed during the probation period or during the period of
conditional discharge, and has been dealt with in respect of that
offence, the judge or magistrate may issue a summons requiring that
person to appear at the place and time specified therein, or may issue
a warrant for his arrest:

Provided that a magistrate shall not issue such a warrant except
on information in writing and on oath.

(2) The following persons shall have jurisdiction for the
purposes of subsection (1), that is to say-

(a)if the probation order or the order for conditional dis-
charge was made by the High Court, a judge of the High
Court;

(b)if the order was made by the District Court, a district
judge;

(e)if the order was made by a magistrate's court, or juvenile
court, a magistrate or a justice of the peace, as the case may
be.

(3) A summons or warrant issued under this section shall
direct the person so convicted to appear or be brought before the
court by which the summons or warrant was issued or before the
court by which the probation order or the order for conditional
discharge was made: (Amended, 54 of 1961, s. 5)

Provided that if that court is the High Court or the District
Court and he cannot forthwith be brought before that court a
summons or warrant shall have effect as if it directed him to be
brought before a magistrate's court or juvenile court and such
magistrate's court or juvenile court shall commit him to custody or
release him on bail with or without sureties until he can be brought
or appear before the High Court or District Court, as the case may
be.

(4) If a person in whose case a probation order or an order for
conditional discharge has been made by the High Court or the





District Court is convicted by a magistrate's court in respect of an
offence committed during the probation period or during the period of
conditional discharge, the magistrate's court may order that he be
brought or appear before the court by which the order was made if the
magistrate considers it expedient to do so, and for this purpose may
commit him to custody or release him on bail (with or without sureties);
and if the magistrate's court makes such an order, it shall send to the
High Court or the District Court, as the case may be, a copy of the
minute or memorandum of the conviction entered in the register, signed
by the magistrate. (Replaced, 76 of 1979, s. 4)

(5) Where it is proved to the satisfaction of the court before which a
probationer or a person subject to an order for conditional discharge
appears or is brought pursuant to this section that the person in whose
case such order was made has been convicted and, except in the case of
an order under subsection (4), dealt with in respect of an offence
committed during the probation period, or during the period of
conditional discharge, as the case may be, the court may deal with him,
for the offence for which the order was made, in any manner in which the
court could deal with him if he had just been tried for or convicted of
that offence by or before that court. (Amended, 54 of 1961, s. 5 and 76
of 1979, s. 4)

(5A) Where a person has been ordered to be brought or appear
before the High Court or District Court under subsection (4), that court,
after dealing with him under subsection (5) in respect of the original
ofrence, may deal with such person in respect of the offence referred to
in subsection (4) in any manner in which he could be dealt with by a
magistrate's court for that offence, or order that he be brought or appear
before the magistrate's court to be dealt with in respect of that offence
and for such purpose may commit him to custody or release him on bail
(with or without sureties); and if the High Court or District Court makes
such an order it shall send to the magistrate's court a copy of every order
or sentence made or imposed, signed by the judge. (Added, 76 of 1979,
s. 4)

(6) If a person in whose case a probation order or an order for
conditional discharge has been made by a magistrate's court is
convicted before the High Court or District Court or another magistrate's
court of an offence committed during the probation period or during the
period of conditional discharge, the High Court or the District Court or
such other magistrate's court may deal with him, for the offence for
which the order was made, in any manner in which the magistrate's court
by which the order was made could deal with him if he had just been
tried for or convicted of that offence by or before that court. (Amended,
54 of 1961, s. 5)

7. (1) Without prejudice to the provisions of section 15(j) of the
Juvenile Offenders Ordinance (which enables a court to order the parent
or guardian of a child or young person charged with an ofrence to give
security for his good behaviour), any court may, on making a probation
order or an order for conditional discharge, if it thinks it expedient for the
purpose of the reformation of the





offender, allow any person who consents to do so to give security
for the good behaviour of the offender; and section 64 of the
Magistrates Ordinance shall apply to any such security as if it were a
security given under the provisions of that Ordinance by a surety.

(2) A court, on making a probation order or an order for
conditional discharge, may, without prejudice to its power to award
costs against him, order the offender to pay to any aggrieved person
such compensation for-

(a) personal injury;

(b) loss of or damage to property; or

(e) both such injury and loss or damage,

as it thinks reasonable; but in the case of an order made by a
magistrate's court, the compensation shall not exceed $5,000.
(Replaced, 48 of 1972, s. 4)

(3) An order for the payment of compensation as aforesaid
may be enforced in like manner as an order for the payment of costs
by the offender; and where a court, in addition to making such an
order for the payment of compensation to any person, orders the
offender to pay to that person any costs, the orders for the payment
of compensation and for the payment of costs may be enforced
as if they constituted a single order for the payment of costs.
(Amended, 48 of 1972, s. 4)

(4) In proceedings before the High Court under the foregoing
provisions of this Ordinance, any question whether a probationer
has failed to comply with the requirements of the probation order or
has been convicted of an offence committed during the probation
period, and any question whether any person in whose case an order
for conditional discharge has been made has been convicted of an
offence committed during the period of conditional discharge, shall
be determined by the court and not by the verdict of a jury.

(5) When a court makes any order under the provisions of this
section, then if the offender-

(a)is under 14 years of age, such order shall be enforced
against the parent or guardian of the offender;

(b)is under 16 years of age, such order may be enforced either
against the parent or guardian of the offender or against
the offender as to the court seems just in any particular
case.

8. [Repealed, 55 of 1986, s. 8]

9. The Governor may by notification in the Gazette appoint a
principal probation officer, and probation officers of either sex.

10. [Repealed, 26 of 1976, s. 31





11. The Governor may by order approve premises for the reception
of persons who may be required to reside therein by a probation order,
and such premises shall be known as approved institutions.

11A. If, with the permission of the superintendent of an approved
institution, a probationer who resides in the institution is employed
outside the institution under a contract of service or apprenticeship, and
is paid wages, the superintendent may require the probationer to pay
such charge in respect of his food and accommodation at the institution
as the principal probation officer, with the approval of the Financial
Secretary, may determine.

(Added, 23 of 1967,
s. 2)

12. The Governor in Council may make rules providing for-

(a) the duties of the principal probation officer;

(b) the duties of probation officers;

(c) [Deleted, 26 of 1976, s. 4]

(d)the regulation, management and inspection of approved
institutions;

(e) [Deleted, 7 of 1987, s. 31

(f)fees and charges to be made for any act, matter or thing to be
done or observed under this Ordinance;

(g)generally, the carrying into effect of the provisions of this
Ordinance.

12A. The Director of Social Welfare may specify the form of
records to be kept under this Ordinance.

(Added, 7 of 1987,
s. 4)

13. The provisions of this Ordinance shall be in addition to and not
in derogation of the provisions of the Juvenile Offenders Ordinance.
Originally 57 of 1956. 54 of 1961. 23 of 1967. 20 of 1971. 48 of 1972. 92 of 1975. 26 of 1976. 76 of 1979. 55 of 1986. 7 of 1987. Short title. interpretation. (Cap. 227.) (Cap. 221.) Probation. [cf. 1948 c. 58, s. 3.] Restriction on punishment of probationer. (Cap. 222.) Discharge, amendment and review of probation orders. [cf. 1948 c. 58, Schedule 1.] Breach of requirements of probation order. [cf. 1948 c. 58, s. 6.] Commission of further offence. Supplementary provisions as to probation and discharge. [cf. 1948 c. 58, s. 11.] (Cap. 226.) (Cap. 227.) [cf. No. 27 of 1951 (Singapore) s. 10(5).] Appointment of probation officers. Approved institutions. [cf. No. 27 of 1951 (Singapore) s. 12.] Charges for food and accommodation. Governor in Council may make rules.

Originally 57 of 1956. 54 of 1961. 23 of 1967. 20 of 1971. 48 of 1972. 92 of 1975. 26 of 1976. 76 of 1979. 55 of 1986. 7 of 1987. Short title. interpretation. (Cap. 227.) (Cap. 221.) Probation. [cf. 1948 c. 58, s. 3.] Restriction on punishment of probationer. (Cap. 222.) Discharge, amendment and review of probation orders. [cf. 1948 c. 58, Schedule 1.] Breach of requirements of probation order. [cf. 1948 c. 58, s. 6.] Commission of further offence. Supplementary provisions as to probation and discharge. [cf. 1948 c. 58, s. 11.] (Cap. 226.) (Cap. 227.) [cf. No. 27 of 1951 (Singapore) s. 10(5).] Appointment of probation officers. Approved institutions. [cf. No. 27 of 1951 (Singapore) s. 12.] Charges for food and accommodation. Governor in Council may make rules.

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