Sannad Manuela L v. The Queen

HCMA000239/1985

BETWEEN: -

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Coram: The Honourable Mr. Justice Jones in Court

Date of hearing: 10 April 1985

Date of delivery of judgment: 10 April 1985

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JUDGMENT

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1. On the 11th of February 1985 the appellant was convicted at Western Magistracy of two offences, viz making a false statement for the purpose of procuring a certificate of marriage contrary to Section 34(a) of the Crimes Ordinance, Cap. 200 and bigamy contrary to Section 45 of the Offences Against the Person Ordinance, Cap. 212. The particulars of the first offence aver that on the 7th October 1983 the appellant at the City Hall Marriage Registry for the purpose of procuring a certificate of marriage knowingly and wilfully signed a notice of marriage required under Section 6 of Marriage Ordinance, Cap. 181 which was false in that it stated that she was a spinster whereas in fact she was married to Bernabe Ligos in the Philippines. The particulars of the second charge alleged that the appellant while being married married Cheung Ping-chou on the 21st November 1983 at the City Hall Marriage Registry Hong Kong.

2. The evidence for the Crown was based on the evidence of Mrs. Marcela Chiu. She said that she knew the appellant and her husband Berna Ligos and was present during the marriage ceremony which was held in Ilocosur in the Philippines, but she was not sure in which year it took place. She referred to two ceremonies one at the City Hall and one for the marriage festivity. However, she did not witness the signing of any documents.

3. Although the essential ingredients of the offence of bigamy had not been established the magistrate found that there was a case to answer. The appellant did not give evidence nor were any witnesses called on her behalf.

4. In order to prove bigamy it is necessary to establish the following matters: first the celebration of the first marriage and the identity of the parties. The details given by Mrs. Chiu of the marriage ceremony were extremely vague and were lacking in particularity. Second it is necessary to prove the validity of the marriage by an expert. On this issue there was no evidence. Third that the first marriage was still subsisting at the time of the second marriage. Fourth that the husband is alive at the date of the second marriage. Again, there was no evidence before the court on either of these matters. Mens rea was also not proved.

5. I am told by Mrs. Harris, who very properly did not support the convictions, that the question of prosecution had been referred by the police to the Attorney-General for advice. The advice that was given was to the effect that the case was not strong, but that nevertheless it was appropriate to proceed. May I say that I entirely disagree with the advice that was given for it is clear upon the evidence that was available that the prosecution should never have been commenced. By allowing the case to proceed the appellant who is a lady of impeccable character was subjected to the traumatic experience of facing two charges which carry upon conviction a maximum term of imprisonment of 7 years. The appellant was found guilty after a trial and fined $750 on each charge. The case reveals a total lack of judgment by the Attorney-General's Department in allowing the prosecution to proceed. Even a first year law student would have appreciated that the essential ingredients of the offence could not be proved. These errors by the prosecution were regrettably compounded by the magistrate in convicting the appellant.

6. It is to be hoped that the Director of Public Prosecutions will pay more attention in the future to such cases before allowing them to proceed.

7. The appeal is allowed and the conviction will be quashed and the sentences will be set aside. The fines will be remitted to the appellant. The appellant's costs of the proceedings before the magistrate and of the appeal will be borne by the Crown.

Representation:

Mr. Chu Tak (Scott Challen) for Appellant.

Mrs. A. Harris (Legal Department) for Respondent.