- 3 4.
The Probation Officer who reported to the Magistrate
recommended a community service order. The Commissioner of
Correctional Services reported to the Magistrate that the Appellant was
suitable for detention in a detention centre and that a place was available
for him. The Pre-sentence Assessment Panel Officer whose report was
forwarded by the Commissioner to the Magistrate expressed the view that a
period of disciplinary training would be beneficial to the Appellant.
5.
In deciding whether a community service order is appropriate,
two broad questions arise: one pertaining to the circumstances of the
offender and the other pertaining to the circumstances of the offence or
offences. As to the circumstances of the offender, there is this passage in
the judgment of the Court of Appeal (Criminal Division) delivered by
McCullough J in R v Brown (1981) 3 Cr. App. R(S)294 at p. 295:
“But this case is tailor-made for a community service order. We
have here a first offender – indeed the position would have been
the same if he had had what I might call a “light” criminal record;
he came from a stable home background with a wife and a young
child; he had a good work record; and it now appears that a job is
available to him. There is apparently genuine remorse and the
risk of re-offending appears slight.”
6.
Six factors are there identified, and it is of course the
combination of all six of those factors which caused the Court of Appeal
(Criminal Division) to regard that case as tailor-made for a community
service order. As Mayo VP said when delivering the Court of Appeal’s
judgment in HKSAR v Wong Yiu Kuen [2001] 1 HKC 486 at p. 491H:
“All the factors must be satisfied”. That is not to say that a community
service order can never be made unless precisely those factors are present.
For example, it can be the case that a young man cannot rely on having a