Cap. 298 《罪犯感化條例》Probation of Offenders Ordinance

In this Ordinance, unless the context otherwise requires—

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)

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; 55 of 1986 s. 8)

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) [cf. 1948 c. 58 s. 3 U.K.]

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.

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.

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.

(Repealed 68 of 1995 s. 53)

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.

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 Court of First Instance 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. Amended 25 of 1998 s. 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 by reducing the probation period, or by extending that period beyond the end of 3 years from the date of the original probation order; (Amended L.N. 587 of 1995) (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) (c)where the probation order was made by the Court of First Instance or the District Court, the order shall not be amended except by the court which made the order. (Added 54 of 1961 s. 3. Amended 25 of 1998 s. 2) [cf. 1948 c. 58 Schedule 1 U.K.]

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.

(Repealed 76 of 1979 s. 2)

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)

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)

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; 76 of 1979 s. 3)

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

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; 48 of 1972 s. 4)

[cf. 1948 c. 58 s. 6 U.K.]

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 Hong Kong 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: (Amended 17 of 1999 s. 3) Provided that a magistrate shall not issue such a warrant except on information in writing and on oath.

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

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 Court of First Instance 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 Court of First Instance or District Court, as the case may be.

If a person in whose case a probation order or an order for conditional discharge has been made by the Court of First Instance 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 Court of First Instance 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)

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; 76 of 1979 s. 4)

Where a person has been ordered to be brought or appear before the Court of First Instance or District Court under subsection (4), that court, after dealing with him under subsection (5) in respect of the original offence, 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 Court of First Instance 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)

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 Court of First Instance or District Court or another magistrate’s court of an offence committed during the probation period or during the period of conditional discharge, the Court of First Instance 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)

Without prejudice to the provisions of section 15(j) of the Juvenile Offenders Ordinance (Cap. 226) (which enables a court to order the parent or guardian of a child or young person charged with an offence 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 (Cap. 227) shall apply to any such security as if it were a security given under the provisions of that Ordinance by a surety.

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—

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)

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)

In proceedings before the Court of First Instance 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. (Amended 25 of 1998 s. 2)

When a court makes any order under the provisions of this section, then if the offender—

The Secretary for Labour and Welfare may make rules providing for— (Amended 80 of 1997 s. 18; L.N. 106 of 2002; L.N. 130 of 2007)

The Chief Executive in Council may make rules providing for fees and charges to be made for any act, matter or thing to be done or observed under this Ordinance. (Added 80 of 1997 s. 18. Amended 17 of 1999 s. 3)