Yeung Woon-yim v. The Queen

CACC000582/1983

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

Criminal Appeal No. 582 of 1983

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BETWEEN

Coram: de Baste J. in Court

Date of Judgment: 26th May, 1983.

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JUDGMENT

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1. On the 12th April 1983 the Appellant pleaded guilty to possession of one phial containing 0.34 grams of a mixture containing 0.10 grams of salts of esters of morphine and one count of being in possession of equipment intended for injection of a dangerous drug.

2. Before the court the Appellant stated he had pleaded guilty because he had been told by the police that as he was an old man he should plead guilty and nothing would happen to him. Commencing in 1952 various attempts at banishing and deporting him were, apparently, to no avail and in February 1955 the deportation order against him was rescinded and he was bound over in the sum of $200 for two years to be of good behaviour. There followed a series of relatively minor offences in the majority of which he was either cautioned, fined or bound over. Since his deportation order was rescinded he has been convicted, inter alia, on 3 occasions for possession of dangerous drugs and in each case was either fined, cautioned or bound over.

3. It may well be that a police officer, with possibly the best of intentions, gave the Appellant the advice he now claims he was given. The Appellant before this court strenously denied possessing any of the drugs and equipment alleged.

4. However, that is not the aspect which has caused the Court concern. Mr Longley for the Crown, very properly, drew the court's attention to "The Brief Facts" to which the Appellant agreed. This document does not contain any facts which support the charge. The paragraph which may have been intended to refer to the Appellant (he was charged with another accused) reads as follows:

"Immediately following this PW1 saw D2 (the Appellant) sitting in his cubicle No. 34 situated opposite and below DI's cubicle and in front of D1 were exhibits 1, 2, 3, 4."

5. I am informed by MI. Longley that in that paragraph the last reference to "D1" was intended to read "D2" but the fact remains that the Appellant pleaded guilty to two offences which were not at all supported by facts agreed to by the Appellant.

6. The learned magistrate recorded the plea of guilty and sentenced the Appellant on the basis of "The Brief Facts".

7. There is, in my view, no way that the matter can be rectified in this court.

8. I therefore propose to suggest to the Appellant to apply for leave to appeal against conviction, to grant that application and to set aside the conviction and sentence. I have exercised my mind as to whether I should order a re-trial but I have come to the conclusion that, having regard to the small quantity of drug involved, to the fact that the Appellant has been in custody for nearly 1?months and to the fact that he has lost in excess of $3,000 by way of wages as a watchman, I should not order a re-trial.

Appellant - I apply for leave to appeal against conviction.

Representation:

Mr Longley, Crown Counsel for Crown.

Appellant in person.