IN THE SUPREME COURT OF HONG KONG
CRIMINAL APPEAL NO. 469 OF 1980
Coram: O’Connor, J.
Date of Judgment: 21st August, 1980.
1. This is an appeal against conviction on a charge of making a false statement for the purpose of obtaining a travel document contraryto Section 42(1)(c) of the Immigration Ordinance Cap. 115. The learned magistrate imposed a fine of $300.00.
2. The false statement made by the applicant was to say that he had no birth certificate. In fact he had been born in Hong Kong andhad a birth certificate. If he had told the truth he would have obtained the travel document he sought. He knew that. He made thefalse statement in order to save himself the trouble of explaining a discrepancy between the name on his birth certificate and thename on his identity card.
3. The learned magistrate took a more serious view of the offence than the facts warranted. He appeared to think it more serious thancases where the offence is committed in order to obtain entry to the Colony of persons from Vietnam. This case in no way approachesthe seriousness of such cases. I am asked to order that no conviction be recorded in accordance with S.36 of the Magistrates Ordinance. That section confers a wide discretion on a magistrate, but it is a discretion that is dependent upon the case falling within theterms of the section. It is only in an exceptional case that it is proper not to record a conviction. I do not consider the presentcase to be serious, but neither do I consider the facts to be such as to make it ‘inexpedient to inflict any punishment or any otherthan a nominal punishment’.
4. It is said that the appellant is a social worker who wishes to study in England, and that the British Authorities might be less inclinedto admit him if he has a conviction recorded. I do not think that a good reason for failing to record a conviction that would otherwisebe recorded. To do so would not only mislead the British Authorities but would be done for that express purpose. It is my view thata court ought not to make an order with the intent of giving a misleading impression. The British Authorities ought to be able toconsider the matter in its pure unadulterated form, that is they ought to be able to see the court order as it would be if not tailoredfor their consumption. I agree with the remarks in R. v. Yip Yuk-lun(1). Those remarks are in no way inconsistent with the court taking a more lenient course where there is a certainty or probability ofadministrative penalty being imposed as a result of a finding of guilt. In those circumstances a court may properly view such certainor likely administrative penalty as being a relevant matter when the court is passing sentence. That in my view is the distinctionbetween cases such as R. v. Yip Yuk-lun(1) and cases such as R. v. Green(2).
5. I refused to order no conviction to be recorded but I reduced the fine to $100.00. I reduced my reasons to writing. They may assistthe appellant if he puts them before the British immigration authorities.
Miss Gladys Li (D.L.A.) for Appellant.
J.S. Conyngham, Crown Counsel, for Crown/Respondent.
(1) 1961 HKLR 268 at 282
(2) 1965 HKLR 718