YIM YAU HAY v. THE QUEEN

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J U D G M E N T

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1. The appellant was convicted of attempted theft and was sentenced to 12 months' imprisonment. He appealed against his conviction and sentence.

2. After I had heard the appellant's argument, Mr Cross for the Crown drew my attention to two letters from Messrs Howell & Co., one dated the 6th January, 1988 saying they had instructions to act for appellant and asking for all statements made by the accused and the summary of facts and asking that the matter should receive early attention as the trial had been fixed for the 28th January, 1988. On the 25th January, 1988 Howell & Co. again wrote to the prosecuting office at Central Magistracy and repeated they acted for the appellant and asked for copies of the charge sheet and certified copies of all statements made by the appellant.

3. When the appellant appeared before the learned magistrate on the 28th January, 1988 he asked for an adjournment - he said that he had tried to instruct a lawyer but hod insufficient funds. Mr Cross suggested there might have been a miscarriage of justice as the magistrate was unaware of the two letters to which I have referred.

4. In The Queen and YEUNG Kin-man, Criminal Appeal 337 of 1985, Li, V.-P. said :

" In our opinion whenever a person who, having taken appropriate steps and through no fault of his own, is denied his common law right to be heard through his counsel, there is a mis-carriage of justice."

5. I agree and allow the appeal, quash the conviction and set aside the sentence. I order an early re-trial before another magistrate.

6. I emphasize that the learned trial magistrate had no knowledge of the two letters I have referred to above - this problem would probably not have arisen if Howell & Co. had referred the two letters to and inform the magistrate's clerk they no longer acted for the appellant this might have assisted the magistrate in deciding whether an adjournment should be granted.