R. v. PAN OI LIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 497 of 1992

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J U D G M E N T

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1. The appellant was convicted on her own plea of one count of bigamy and one charge of making a false declaration with intent to procure a marriage. She was sentenced to be fined $500 in respect of the first charge and $250 in respect of the second charge on 23^rd March 1992.

2. On 13^th May 1992, the matter came before the magistrate upon review because notwithstanding the entry of the plea of guilty of the admission by the appellant that she was in fact married bagamously by virtue of a previous marriage in 1983 in Macau, information had come into the hands of the Legal Aid Department which indicated that perhaps the marriage in Macau was not a valid marriage.

3. Since 1992, efforts had been made by both the Legal Aid Department and the prosecution in this matter to try and clarify the situation and various oponions had been sought as to the nature of the marriage.

4. At the hearing below, the appellant was read some breif facts and asked if she agreed that those brief facts were true. The first paragraph read :

"On the 13^th July 1983 the defendant and PW1 married in Macau by a Chinese traditional celebration and had announced their marriage in the newspapers in Macau which was accepted by the Macau Authorities at that time as a lawful marriage. There marriage turned sour and the defendant left PW1 in 1989."

The only evidence before the magistrate as to the validity of the marriage in Macau was the admission by the appellant. It now transpires on the documentation placed before me, being an affidavit by Mr Henry Hu who is an acknowledged expert in respect of Chinese customary marriages in Hong Kong, and an opinion by one Antonio Correia from Macua, that the validity of the marriage may have been mistaken by the appellant as to its validity. Mr Hu, in his opinion, goes to the issue as to whether the marriage was a proper and valid customary marriage and finds that it was not. I need not go into the details of his opinion.

5. Mr Correia, on the other hand, addresses the point as to whether a Chinese customary marriage celebrated before 1^st May 1987 may be registered as it may before the Macau Authority and as to whether a customary marriage is valid even without registration - because registration was not mandatory at the date of celebration. What Mr Correia does not have addressed is whether the particular details of the manner in which a union took place between the appellant and the witness in the court below did amount to a customary marriage. He broadly was of the view that the marriage was a customary marriage but does not go into detail as to why he arrives at that conclusion. Mr Hu on the other hand sets out in detail specific reasons why the marriage does not amount to a customary marriage.

6. The situation therefore is that since the plea by the appellant in the court below took place and the magistrate relied upon her admission to found the conviction, material has been brought forward upon which Mr Wong for the Crown concedes that it would be unlikely that the Crown would be able to prove that a valid marriage took place between the parties in July 1983.

7. That being so, in the interests of justice, I allow the appeal and set aside the conviction.