R. v. PAN MAN LIN

1st: PAN M. L.: Applicant: 14/11/96

M. P. No. 4003 of 1996

IN THE SUPREME COURT OF HONG KONG

CRIMINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. In the light of the Crown deciding not to offer any evidence against the Appellant in respect of the 1st charge, I formally order that particular charge is dismissed for want of prosecution.

MR GERBER: I'm much obliged and I'm very grateful to the Crown.

2. As regards the sentencing, the authority which I handed up, NG Kit-yee, Jackie, appears to be in point where the wrong place of birth was specified in a passport and that attracted a fine of $1,000.

COURT: Yes.

MR GERBER: And there's just one further matter. The learned magistrate ordered forfeiture of the forged passport...

MR DICK: Oh yes, he did too.

MR GERBER: I think that the magistrate may well have been under the misapprehension that it was a forged passport or that there was something wrong with it. Well, we know now that it wasn't, so might I ask that that forfeiture order be rescinded and the passport returned.

COURT: Yes.

3. This is a rather unusual case and to that extent it calls for a rather unusual step to be taken, and that is the reason why the court is prepared to hear this appeal, although the time had expired and although the normal procedure had not been followed.

4. As for the 1st charge, as the Crown quite fairly and in my view properly offers no evidence against the Appellant, that particular charge is dismissed and the sentence is also set aside.

5. And insofar as the 2nd charge is concerned, clearly this is not a case involving any dishonesty on the part of the Appellant as such, there is no dispute that the passport in question is in fact a genuine passport, except that for reasons which are perhaps not entirely relevant to this proceeding, the place and the date of birth of the Appellant was in fact mistakenly recorded in that particular document. But there is no dispute that this passport, in fact, belonged to the Appellant and it was a properly issued passport to the Appellant. So far as the second offence of making a false representation pertaining to her date of birth and the place of birth, is really very technical and very minor in my view. It does not deserve any custodial sentence at all.

6. In the light of the fact that the Appellant had already served a custodial sentence for a period of time, I think justice will be done if I were to allow the appeal against sentence to the extent that she should be immediately released from custody.

7. So far as the forfeiture order is concerned, in the light of the undisputed fact that this passport was in fact properly issued to her, the forfeiture order, in my view, was not properly made. I therefore set aside that particular forfeiture order and order that the same be returned to the Appellant.

MR GERBER: Can I just ask one thing, my Lord. The sentence which your Lordship has imposed, is that to be on her record as being a sentence of imprisonment because your Lordship has said that would be inappropriate and it would be a nasty thing to have on her record. She has a clear record or had a clear record.

COURT: Yes. Yes.

8. What I propose to do is actually to set aside that six months' imprisonment. It is sufficient thereof, the Appellant is bound over in the sum of $1,000 on her own recognisance for 12 months.

MR GERBER: I'm very grateful.

COURT: Thank you.

(W. Yeung)

Judge of the High Court

I/we certify that to the best of my ability and skill, the foregoing is a true transcript of the tape recording taken of the above proceedings.

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Dated the 25th day of November 1996