IN THE SUPREME COURT OF HONG KONG
Criminal Appeal No. 1301 of 1976
Coram: Hon. Yang, J. in Court.
Date of Judgment: 13th January 1977
1. Having pleaded not guilty, the appellant was found guilty and convicted of a charge of bigamy and another charge of making a falsenotice for the purpose of procuring a marriage certificate. He was sentenced to 15 months’ imprisonment on the first charge and 12months’ imprisonment on the second charge, sentences to run concurrently. The appellant also pleaded guilty to a third charge offailing to register with the Commissioner of Registration within 30 days of his entry into Hong Kong for which a fine of $500 ortwo months’ imprisonment consecutive to the first charge was imposed. He now appeals against those sentences.
2. The appellant married Linda Buckham in England on the 14th August 1968. They separated in 1973. Sometime prior to December 1975 (itis not clear precisely when) he came to Hong Kong. In March 1976, he started living with Miss Sanchez. Some-time in 1976, the wifetook out divorce proceedings in England, with the appellant’s consent. On the 26th April 1976, having falsely informed Miss Sanchezthat he had obtained a divorce, the appellant and Miss Sanchez went through a form of marriage at the Marriage Registry, for whichpurpose he signed a false notice that he was a bachelor whereas Le was still at that time a married man. After conviction and sentence,he expressed a wish to marry Miss Sanchez. It is not disputed that Miss Sanchez is still willing to marry him.
3. The learned trial magistrate, in his Reasons for Sentence, rightly took into consideration the fact that Miss Sanchez had been deceivedby the appellant into thinking that he was a divorced person at the time of the second marriage, but in my view he has not givensufficient weight to their cohabitation before the bigamous marriage, and her willingness to marry him after that marriage.
4. In R. v. Bagshaw (1967) Cr.L.R. 375, the appellant had left his wife six years before going through a second ceremony with a woman with whom he was living at the timeof the trial. The Court of Appeal held that there was no evidence to show that the woman concerned would not have permitted intercourseif she had known that the appellant was already married, which was the reason given by the trial judge for sentencing the appellantto 12 months’ imprisonment, and on hearing that the woman would stay with the appellant and that there was some hope that they wouldbe able to get married, the Court varied the sentence to allow the appellant’s discharge the following day. Bagshaw had been in custodyfor three months. He had previous convictions for traffic offences and dishonesty and had been sent to an approval school and borstal.He had also been fined and put on probation.
5. In R. v. Hendry (1958) Cr.L.R. 313 the Court of Criminal Appeal reduced a sentence of 15 months’ imprisonment to one of six months’. Hendry had previously been on probationfor housebreaking and had been fined for taking and driving away a car without the owner’s consent but otherwise had a good recordin his employment. The Court stated that the real crime in the present case was that of falsifying a public document because Hendryhad described himself as a single man. Apart from that, no great harm had been done. The marriage with the legal wife had brokenup so that no harm had been cone to her, and the second girl had permitted intercourse before marriage and now wished to remain withthe appellant. It was held that this was not a case that called for severe punishment and six months’ imprisonment was appropriate.
6. On those authorities, the sentence on the bigamy charge in the present case is clearly excessive. Both Bagshaw and Hendry were notpersons with an unblemished past, which is not the case here. Following R. v. Hendry, the sentence on the second on the second charge is in my view also excessive.
7. Before I come to the third charge, there are three passages in the Reasons for Sentence which call for comments.
8. Firstly, the trial magistrate, in dealing with the charge of bigamy, said: “I felt that this was a case involving a European expatriateand that I should properly adopt the English tariff of sentencing ‘faut de mieux’ – since there are very few similar cases recordedin Hong Kong – they are I am advised usually those involving local inhabitants with a slightly less abhorrent attitude to violationof the Christian ethos of solemnity and status involved in the marriage ceremony.” This observation cannot be correct. There cannotbe one standard of sentence for one particular race or races and a different standard for another race. If by local inhabitants,the learned magistrate was not referring to any particular race or races, but simply to the inhabitants of Hong Kong, then the epithetmust include Chinese, Europeans, Indians, etc., who might embrace a Christian, Buddist, Moslem or some other religious or secularethos. Whilst it may be true to say that the majority of the non-Europeans living here are not Christians, it is certainly not trueto say that the non-Christians have any less regard for the solemnity and sanctity of marriage.
9. Secondly, the magistrate referred to the appellant’s “completely dishonest leg of his defence. It is a well known principle thata heavier sentence should not be passed on an accused for the offence of which he has been convicted merely because the judge considershim to have been guilty of perjury during the course of the trial: R. v. Quinn (1932) Cr.App.R. 196, at page 198.
10. Thirdly, having decided that 15 months’ was the minimum period he could properly impose for the bigamy, the trial magistrate wenton to say that bearing in mind his position in the Independent Commission Against Corruption, he did not feel justified in suspendingthe sentence, even allowing for the personal disaster which the appellant had brought on himself. Whilst I agree that an immediatecustodial sentence is proper for an offence of this nature, I fail to see the relevance of his occupation in this particular case.The offences of which he was convicted had nothing whatsoever to his connexion with the Independent Commission Against Corruption.
11. Counsel for the appellant informs me that the sentence on the third charge far exceeds the usual fine of $50 to $100 for offencesof this type. Crown Counsel confirms this. In the Reasons for Sentence the trial magistrate did not advance any reasons for goingbeyond the usual tariff.
12. For the foregoing reasons, I allow the appeal and vary the sentences on the first two charges to allow the appellant to be dischargedto-morrow. On the third charge the fine is reduced to $100.
13th January 1977