THE QUEEN v. YU TAT-HUNG

CACC000284/1984

Cr. App. 284/84

Criminal law and procedure - improper questions by prosecutor

Where the prosecutor had been allowed to begin his cross-examination of the appellant by asking him about a plea of guilty by another man, who had admitted buying drugs from him, the conviction would be quashed because the appellant must have been bewildered and prejudiced by that line of questioning and the magistrate had not said that he had ignored the inadmissible and irrelevant matter.

IN THE HIGH COURT	Criminal Appeal
	No. 284 of 1984

BETWEEN

	THE QUEEN
	and
	YU Tat-hung	(Appellant)
	__________

Coram: Fuad, J.A, (Sitting as an additional Judge of the High Court)

Date of hearing: 19th June, 1984

Date of handing down reasons: 25th June, 1984

_________________________

REASONS FOR JUDGMENT

_________________________

 

Fuad, J.A.:

1. On the 16th April 1984 the Appellant was convicted by a magistrate of unlawfully trafficking in dangerous drugs c./s. 4(1)(a) of the Dangerous Drugs Ordinance (Cap. 134) and sentenced to 18 months' imprisonment. He appealed to this Court. At the conclusion of the hearing of the appeal on the 19th June 1984 I allowed the appeal against conviction and now give my reasons.

2. Two police officers gave evidence that on 21st March 1984 they had seen the Appellant take money from another man and give him in return something which he had taken out of one of his trouser pockets. Both men were arrested. The Appellant had $60 in $10 notes in one of his hands, and the other man a packet which turned out to contain 0.26 of a gramme of a mixture with salts of esters of morphine in it .

3. The Appellant gave evidence and admitted that he was a drug user. He said he was on his way to buy drugs with the $60 he had with him when he was arrested.

4. The learned Magistrate, in his Statement of Findings briefly reviewed the evidence and said : "I was satisfied beyond doubt with the evidence as given by the prosecution witnesses and convicted the appellant."

5. The other man arrested on the same occasion had earlier pleaded guilty to "simple" possession of dangerous drugs and had been fined $500.

6. Unfortunately, right at the beginning of the Appellant's cress-examination, gravely improper questions were put to him by the Court Prosecutor - (no doubt due to his inexperience) as the Magistrate's record shows : -

"	Q:	Is D.2 called by you?
	A:	I can.
	Q:	Now?
	A:	No.
	Q:	D.2 pleaded guilty and admitted the facts, you know this?
	A:	Yes.
	Q:	He said you were the seller?
	A:	Yes.
	Q:	Is that correct?
	A:	No.
	Q:	Were you in Court 1?
	A:	Yes."

7. It has been well settled since the time of Hale that the fact that a person has pleaded guilty is no evidence against a co-prisoner, see e.g. R. v. Moore (1956) 40 Cr. App. R. 50. The Appellant was unrepresented and must have been bewildered and prejudiced by the line of questioning I have set out above.

8. Mr. Halley for the Crown sought to uphold the conviction (while conceding that a serious irregularity had occurred) on the ground that in the Magistrate's reasons there is no indication that he had taken the other defendant's plea of guilty into account against the Appellant. This is true, but it would not be safe to assume that the Magistrate did not allow the matter to influence him in view of the fact that he permitted the objectionable questions to be asked, and nowhere expressly stated that the other defendant's incrimination of the Appellant by the facts he admitted when pleading guilty would be, or were, ignored.

9. I had no doubt that in the circumstances the conviction was unsafe and satisfactory, and for that reason allowed the appeal, quashed the conviction, and set aside the sentence.

	(K.T. Fuad )
	Justice of Appeal

Representation: