HKSAR v. CHENG KAN AND OTHERS

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1507 OF 1996

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J U D G M E N T

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1. These appellants were each convicted in the Magistracy of one count of Theft.

2. Originally there were 5 defendants. Each was charged separately. The time period of the offences differed - in each case the amount stolen was different.

3. The charges were contained in a single charge sheet although there were no joint charges. On 16th August 1996 when the case first came before the Magistrate, 2 of the 5 defendants pleaded guilty and were convicted and sentenced. D2, D3 and D4, who are now appellants 1, 2, and 3, were remanded to 4th November 1996 for trial. All 5 defendants were represented on the first appearance by the Duty Lawyer. No application for separate trials was made.

4. On 4th November 1996 all 3 appellants were represented by the same solicitor and the trial proceeded, concluding on 7th November 1996. No application for separate trials was made by the solicitor and the Magistrate made no comment about the form of the charges. Effectively the Magistrate conducted 3 trials simultaneously.

5. This appeal was first set for 29th April 1997 when counsel for the Appellants asked leave to amend grounds of appeal and the Judge ordered that because of allegations of incompetence the trial solicitor should be given an opportunity to file an affirmation in reply. An Affirmation was filed in Court on 16th May 1997. No affirmations were filed by any of the Appellants between 16th May 1997 and the adjourned appeal hearing in February 1998 as to what instructions had been given to their solicitor.

6. Each Appellant was an employee of Hong Kong Telecom. It was part of their duties to collect coins from pay phones in the restricted area of Kai Tak Airport. Usually this duty was carried out by employees of the security company employed by Hong Kong Telecom.

7. However, as the security staff did not have permits enabling them to enter the restricted area of Kai Tak Airport, employees of Hong Kong Telecom collected the coin boxes in the restricted area and delivered them to the security staff outside the restricted area. In the discharge of this duty, each Appellant had allegedly stolen coins from the coin boxes before handing the box to the security staff.

8. The prosecution evidence relied entirely on cautioned statements for each of the Appellants. At trial, the 1st Appellant did not challenge the voluntariness of his cautioned statement, although when giving evidence said that he had given the statement as a result of threats.

9. The cautioned statement of the 2nd Appellant was admitted into evidence following a voir dire. The 2nd Appellant gave evidence on the general issue. The Magistrate relied on the cautioned statement once it was admitted.

10. The 3rd Appellant also challenged the voluntariness of his statement. A voir dire was held. The 3rd Appellant gave evidence on the general issue and the Magistrate relied on the cautioned statement that he admitted.

11. All three Appellants had as their first ground of appeal unlawful joinder. It was argued that the joinder of the three Appellants was prohibited by section 10(2) of the Magistrates Ordinance Cap. 227 and there was no statutory authority for such joinder. In consequence, the trial was said to be a nullity. It was argued that Appellants should not have been tried together as each was charged with having committed alone a specific offence of theft and the trial Magistrate erred in law in not ordering each accused be tried separately.

12. Concomitant with this ground was that the Appellants' solicitor had been flagrantly incompetent in failing to advise them they could make an application for separate trials and failing to make such an application.

13. A second ground, common to all three Appellants, was that the solicitor representing them at trial failed to inform the Magistrate that each Appellant was a person of previous good character. It was argued (1) that the credit of each Appellant was crucial to the determination of the truth or otherwise of the evidence that he gave at trial and his propensity to commit a criminal offence and (2) the failure of the trial solicitor to ensure the clear record was put before the Court was flagrantly incompetent and seriously prejudiced each Appellant's chance of an acquittal.

14. The 2nd Appellant argued further that the Magistrate erred in failing to give separate consideration to the case for and against each Appellant; that he failed to consider in a proper manner whether he should exercise his residual discretion to exclude the 2nd Appellant's video interview and that the Magistrate could not have given proper attention to the 2nd Appellant's case, because of the need to concern himself also with the case of the 1st and 3rd Appellants.

15. The 3rd Appellant argued there was a material irregularity in that the Magistrate had not given himself a "Berrada" direction on the clear record of the 3rd Appellant and that the Magistrate had not considered, or adequately considered, the first Record of Interview of the 3rd Appellant. Further, the solicitor by proceeding on a joint trial and in failing to put the good character of the 3rd Appellant before the Magistrate made a grave error of professional judgment.

16. There was another ground relating to 1st Appellant alone which was that his cautioned statement did not establish theft.

Ground 1

17. The Appellants argued that the trial that took place before the Magistrate was a nullity as the court lacked jurisdiction to deal with a case where defendants were joined for trial on separate charges.

18. Reference was made to S. 10(2) of the Magistrates Ordinance which deals with joinder of charges. It requires that for every distinct offence there shall be a separate complaint or information, which shall be tried separately except as set out in Section 10 (2)(a)(b) and (c). The Magistrates Ordinance makes no reference to joinder of offenders. Appellants argued that this statutory practice did not allow any exceptions that might be imposed by the common law except that a Magistrate had a discretion to sever charges if he decided it was appropriate to do so.

19. The only Hong Kong case where joinder of offenders was considered was the case of R. v. Lam Sang & another (1968) H.K.L.R. 236 where Rigby S.P.J. was asked to construe S. 10(2) as meaning that a joint trial of separate defendants constituted a nullity.

20. It is clear that Rigby S.P.J. had grave doubts about the propriety of such joinder of offenders. He considered the case of Crane v. D.P.P. 15 Cr. App. R. 23 authority for such a trial being a nullity - and that such manifest want of jurisdiction could not be cured by the consent of the defendants.

21. He did however allow himself to be persuaded by counsel's reference to the practice then endorsed in Stones Justices Manual 1967 Vol. 1 page 278 and by comments of his brother judge, Huggins J. to endorse the practice of joinder of offenders which was followed in Hong Kong at the time. He declined the application to rule the trial a nullity and held:

22. There is authority for saying that separate accused may be tried jointly before a Magistrate upon charges contained in separate charge sheets, provided that -

(a) each accused consents and is given the opportunity to cross-examine

(b) the charges are of a similar nature and arise from the same transaction and

(c) the prosecutor agrees

23. He went on to state obiter that a joint trial of this nature should be avoided. He also referred to the desirability of the Magistrates Ordinance being amended to cover joinder of offenders - in the years since 1968 that was not done. The practice in Lam Sang has been followed since.

24. Rigby S.P.J. considered the question was one of jurisdiction - however the leading cases where joinder of offenders has been considered refer to joinder being historically a matter of practice and procedure and not a matter that goes to jurisdiction.

25. In Regina v. Assim [1966] 2 Q.B. 249 the court examined the practice of joinder of offenders and held that as a general rule it was no more proper to have tried by the same jury several offenders on charges of committing individual offences that had nothing to do with each other, than it was to try before the same jury offences having nothing to do with each other committed by the same person; but that where the matters constituting the individual offences of the several offenders were, on the available evidence, so related in time or by other factors that the interests of justice were best served by their being tried together, then they could, subject to the discretion of the court, be tried together.

26. The court examined the then authorities, noting that there had been no case directly on this issue and that some cases relied on as authorities confused types of joinder and also confused considerations of jurisdiction with what was a matter of practice and procedure.

27. Joinder of offences or offenders was stated to be "matters of practice on which the court has, unless restrained by statute, inherent power both to formulate its own rules, and to vary them in light of current experience and the needs of justice. (p.258 F-G)

28. The court made it clear that as it was a matter of practice any error in the application of relevant rules would normally amount to an irregularity and would not result in lack of jurisdiction.

29. The court conceded that an examination of the authorities did not reveal a clear, settled and general practice based on principle as to when joinder of offenders was in practice correct. It then went on to look at formulating such a rule which resulted in the holding (supra).

30. Assim was not cited to Rigby S.P.J. - its examination of the authorities would probably have made his task in Lam Sang simpler although at the stage Assim was decided it did not apply to magistrate courts in England which at that time could deal only with one information at a time - a position different to that prevailing in Hong Kong.

31. In 1983, the case of Chief Constable of Norfolk v. Clayton [1983] 2 A.C. 473 applied Assim after undertaking an extensive review of the authorities. The history, of what the court confirmed was a matter of practice and procedure not jurisdiction, was carefully examined and some formerly authoritative cases were discarded because they were incorrectly based on considerations of jurisdiction, or because they were inadequately reported, or because they were mutually inconsistent.

32. Roskill J at 489A stated that "unless restricted by statute Magistrates courts, guided where necessary by higher courts, are entitled to develop their own practice and procedure and to adapt it to contemporary needs. Practice and procedure must never be allowed to become inflexible. They are the servants not the masters of the judicial process."

and later, at 489 H-490A said

"It is not entirely easy to see why in principle, when, subject to certain well-established safeguards and to the discretion of the trial judge to sever counts in an indictment and to order separate trials of those severed counts, indictments can today contain many counts and charge more than one offender where the facts alleged show the necessary connection, Magistrates courts should invariably be compelled in the absence of express consent to try separately each information and each offender who is separately charged, however closely the facts are connected. No statute enjoins that magistrates' courts should follow this procedure or prohibits them from adapting that practice and procedure best suited to contemporary needs."

33. The court held that if a defendant is charged on several informations, or if two or more defendants are charged on separate informations, and where the facts are sufficiently connected to justify joint trial, the informations may be tried together if it is fair and just to do so even if the defendants do not consent. It was recommended that if consent was not given that the court should hear submissions.

34. Having considered these and peripheral cases I am of the view that Appellants' argument as to lack of jurisdiction has not been substantiated. Even though the Magistrates Ordinance does not specifically cover the situation where joinder of offenders is sought, there is no prohibition whether by statute or by case law against such a practice.

35. Assim and Clayton set out the circumstances under which such joinder can occur and refer to various safeguards that should be followed. These are, in summary:

1) that the facts relating to the separate offences are sufficiently connected:

2) that it is in the interests of justice that the procedure be followed.

3) That consent is desirable but if withheld the case can proceed without it, if proper enquiry is made of the party or parties.

36. Nevertheless Rigby S.P.J.'s comment in Lam Sang that a joint trial even in the circumstances described should be avoided, is one that should be borne in mind, particularly if joinder of offenders might cause difficulties of trial management or, worse, expose the joined offenders to unnecessary prejudice.

37. Although I reject Appellant's argument that the joinder of these offenders in one trial made the trial a nullity, I am of the view that these were not suitable offences to be joined. It is true the Appellants worked for the same company and that there were some common elements in the offences. However there was no evidence to suggest any contemporaneous concerted action or any real link other than the common employment. Mr. Grounds, in arguing the question of nullity, used the analogy of 4 shoplifters, accused of theft from the same store but otherwise unconnected, being tried together. In that example it is most unlikely the prosecution would consider con-joint trials appropriate and even less likely that a Magistrate would allow such a trial.

38. The Magistrate did not make any enquiries about the joinder or seek consents from the parties at the beginning of the trial, but proceeded to try it assuming, correctly, that both parties implicitly consented to the procedure adopted. It is unfortunate that he did not consider of his own volition whether this was a case where in the interests of justice he should order separate trials. It is quite likely that if he had considered the matter he would have done so.

39. As the main evidence in each case was the cautioned statement, the Appellants may have suffered prejudice from their cases being tried together, as the examination and cross-examination of one Appellant inevitably referred to the involvement, or the possible involvement, of other Appellants. This is not to say that the Magistrate would be unable to deal with each Appellant's case separately, but it may have appeared that the offences were the result of concerted action when the prosecution evidence did not stretch that far.

40. Although I reject the argument that the trial was a nullity I consider that separate trials were indicated and should have been ordered by the Magistrate to ensure a fair trial for each Appellant.

Ground 2

"Flagrant Incompetence" of Counsel

41. To succeed on this ground, the Appellants have to show a miscarriage of injustice had occurred because of flagrantly incompetent advocacy. The burden of satisfying the court of that flagrantly incompetent conduct is on the Appellants.

42. Although an affirmation was sought from the solicitor no similar evidence was offered by any one of the Appellants. It was therefore necessary to examine the basis of the allegation from the record. The grounds on which counsel's behaviour is attacked are first that he failed to put in evidence of good character. This was particularly important as 2nd and 3rd Appellants had challenged the voluntariness of their cautioned statements where their credibility would be relevant on the special issue. In addition each Appellant gave evidence on the general issue, where again the Magistrate should ideally have had before him the information that each of them had a clear record, so that he could consider questions of propensity and credibility afresh.

43. The second ground is that counsel was flagrantly incompetent in failing to advise Appellants that it was in their interests to apply for separate trials. In his Affirmation to the court, counsel stated that he took full instructions from each Appellant and was satisfied that no conflict of interest arose amongst the three Appellants. He said each Appellant had his own defence and it would not affect the case of the others. He was aware that the trial Magistrate would have to consider the defence of each Appellant separately. He took the view that a joint trial would not have any adverse effect on the Appellants and at the end of the day, it would save the time of the court.

44. From his affirmation it appears the solicitor considered it unnecessary to advise the court that Appellants had clear records because he believed it would be implicit from the nature of the defence evidence and the fact they were long-term employees of Hong Kong Telecom that they had clear records.

45. As each Appellant faced a charge of dishonesty where a clear record was relevant to credibility and propensity; as A2 and A3 gave evidence on the special and general issues; as A1 mounted a challenge to the voluntariness of his admission on the general issue and as on the general issue credibility was important, this omission by counsel was a serious one.

46. A3's complaint that the Magistrate failed to give himself a Berrada direction cannot be sustained as the clear records were never put before him. It was suggested, also on behalf of the 3rd Appellant, that once the Magistrate learned, after conviction, that Appellant was of clear record he should have reviewed himself under section 104 of the Magistrates Ordinance in the light of that knowledge. Although that was a possible way to deal with the matter, it was a procedure of limited merit. A Magistrate trying to review himself at that stage would be making an artificial reassessment and the real benefit of the clear record would be lost.

47. The Respondent in answering this point referred the Court to Halsburys Laws of England 4th ed. Re-issue 1989 Vol. 3(1) p.518-519 which indicates that when a defendant engaged the services of counsel, he must be taken to have accepted the ordinary relationship of client and counsel and the consequences which flow from that relationship.

"Unless and until his instructions are withdrawn counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considered best for the interests of his client."

48. The Respondent relied on a useful summary of the law enunciated in a decision of the Court of Criminal Appeal of New South Wales namely: Birks (1990) 48 A Crim. R. 385 where Gleeson L.C.J. stated:

"As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground of setting aside the conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. However, there may arise cases where something has occurred in the running of the trial, perhaps, as the result of "flagrant incompetence" of counsel, or perhaps from some other cause, which will be recognised as involving or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."

49. That the Hong Kong Court of Appeal adhered to those principles can be seen in the later case of R. v. Chan Kung-ling [1992] 1 HKCLR 43 where Macdougall J.A. @ 54 stated:

"We do not accept that the defence counsel was derelict in his duty as suggested ... Lest it be thought that by having embarked on a detailed analysis on this ground of appeal we encourage submissions of this nature we think we should issue a timely reminder that except in the case of flagrantly incompetent advocacy this court will not set aside a conviction on the ground that the counsel has made a decision or pursued a course in the conduct of a trial which later appears to have been mistaken or unwise, even if the decision or course of conduct was contrary to the accused's wishes."

50. The Respondent also relied on the case of R. v. Mo Lee-kuen [1993] 1 HKCLR 78 where the Court of Appeal having considered the case of Birks and echoing Chan Kung-ling held:

"Other than in cases of flagrantly incompetent advocacy the Court of Appeal will not interfere with a conviction on the ground that counsel made a decision which later appeared to have been in error, even where the decision was contrary to the accused's wishes."

51. There is no evidence that Appellants specifically instructed counsel to advise their clear records to the court. However that is not surprising because as laymen with clear records it is highly unlikely that without advice from counsel they would realise the significance of putting their records before the court. Counsel relied on the fact that the 1st Appellant had been working for Telecom since 1978, 2nd Appellant from 1977 and 3rd Appellant from 1978. They were in good positions and he believed the court would appreciate from their evidence, the evidence of their employment tenure and, in A1's case, his promotion to technical officer in 1993, that they had clear records.

52. As most defence counsel would have been anxious to be able to put forward, as part of the defence case, the clear record of each client, it is necessary to consider whether this omission amounted to flagrant incompetence or whether it was an error of judgment.

53. There is some force in the suggestion that from their long service the Magistrate would assume the Appellants had clear records even if it was not stated specifically. If the Magistrate, for example, had referred in his Statement of Findings to the Appellants "long and hitherto unblemished service" as being a matter he took into account, or showed by some other comment that he was treating them as men of clear record, it would be difficult to accept that Appellants were disadvantaged by counsel's omission. The Magistrate's findings, unsurprisingly, do not refer to good character at all.

54. There is no evidence that defence counsel failed to advise his clients on severance. His affirmation states "I was of the view that a joint trial would not have an adverse effect on the defence and at the end of the day it would save the time of the court." He said there was no conflict of interest amongst the Appellants and that each had his own defence which would not affect the case of the others. He does not mention considering the possible prejudicial effect of Appellants' giving parallel evidence on the special and general issues in respect of entirely separate offences, or the difficulties inherent in the Magistrate's having to ignore prejudicial matter in statements relating to co-accused, or other colleagues. It is true a Magistrate is a professional tribunal - nevertheless in a situation where, as here, 3 entirely separate trials were being conducted in parallel, it may, realistically, have been placing him in a difficult, or impossible, judicial position.

55. Having considered counsel's alleged incompetence, I am of the view that the combination of his initial failure to seek separate trials for his clients and, later, the omission to put Appellants' clear records before the court in a case where it was especially important to do so, amounts to flagrant incompetence that renders these conviction unsafe. I allow the appeal against conviction on this ground, in respect of all 3 Appellants.

Ground 3

56. The 3rd Ground, relating to the 1st Appellant only was that the Magistrate had erred in fact in holding the Appellant had admitted the elements of the offence in the record of interview which was the sole evidence against him.

57. At p.181 of the transcript the Magistrate having considered the Appellant's evidence in regard to the cautioned statement stated:-

"The 1st Appellant clearly admits the elements of the offence in that cautioned statement and I place full weight on such admission."

That is the only evaluation of the statement he makes apart from some comments at p.156-157 which do not reveal an admission of theft.

The relevant pages of the cautioned statement appeared at p.296-302 of the transcript. The most important question at p.296 was as follows:

Q1 According to what we learned from the investigation some of your colleagues also, well, took this chance to take possession of coins which were jammed.

A. Yes.

Q. I want to ask Mr. Cheng did you ever do that?

A. No.

Q. No at all times?

A. No. Well, sometimes clients went to complain and sometimes an entry was made in the book well the clients complained against you coins had to be returned to ... (inaudible)

Questions at page 297 related to complaints made by clients who could not insert coins in telephone boxes because boxes were jammed. Page 298 related to what occurred when a jam was discovered. At p.298, the interviewer asked: "Well just now I asked you whether you ever took the coins during this period. You said no".

Answer: No.

Q. Do you understand what my question was?

A. Understand. A report could be made to the management.

58. At page 299, the 1st Appellant said that for individual cases, where one or two dollars were concerned they did not bother to report it because they would keep those coins for re-trying another call. At p.300 the answer: "We had to try it again. After it became out of order and it's checked and found that there were coins, when we checked we tried it again ourselves." It is clear from the tenor of those answers that the coins taken were one or two dollars, used for the purposes of checking the telephones after they had been fixed, not retained by 1st Appellant for himself.

59. The interviewer continued at p.300.

Q. Mr. Cheng I want to ask you, well, just now, you mentioned that you had taken money from the coin vault?

To this point the 1st Appellant had not admitted stealing money - the only money referred to was the coins retained for checking the telephone.

A. Yeah.

Q. Was it necessary for you to use instrument to help you draw out the money?

A. No.

60. The interviewer then elicited the answers that jammed coins were removed either by shaking, or sometimes with a ruler.

61. The period during which Appellant 1 was alleged to have committed theft was from March'94 to April'94. At p.122, he was asked by his counsel in evidence in chief, "In video you admitted between March and April 1994 you did steal money from public telephones in the restricted area of the airport."

Answer: Yes.

Q. Why do you say that?

A. Because I didn't do it because I wasn't in the airport at that time.

He went on to say he had been forced to admit the matter by the officer interviewing him. The relevance of the answer is that he was not in the airport at that time and could not have stolen the coins. It is difficult to see why counsel questioned 1st Appellant in this manner and why counsel misstated the contents of the interview, because nowhere in the interview was there an unequivocal admission of theft during the period stated in the charge or any other time.

62. In cross-examination p.129, he admitted that he had been asked in the interview about the theft of money from phones. He was also asked "you admit March to April 1994 while doing your duty in the airport you commit a theft," and answered by saying that Cheng the interviewer said he had been involved in that time period; that the interviewer prompted him and said, that there were people who would testify against him. He admitted that in March and April in 1994 he had been posted to duty at the airport. In his record of interview, the Appellant said he was at the airport from late 1993 throughout 1994.

63. After this stage there was no allegation by the interviewer that the 1st Appellant was suspected of stealing money. The only allegation initially was that he had been offering advantages to his superior officer to facilitate thefts. P.265 related to fixing of telephones. Further questions were asked about the roster and the duties performed, at p.273 the interviewer asked about the collection of coin boxes of pay phones and Appellant described the procedure. At p.275 he confirmed that they were handed keys of coin boxes because the security staff did not have permits for entry to the restricted area of the airport. He continued to explain the procedure for replacing coin boxes at p.279. At p.279, the interviewer said "According to what we learnt from the investigation during the interval you guys replaced coin boxes, you and some other colleagues pushed the coin boxes to some places and used something to draw out coins. Do you want to saying here about what I said?

A. Well, security guards, all the time, well we did not do it always.

This question by the interviewer which is extraordinarily vague and roundabout was presumably intended to be an allegation that money had been stolen by Appellant during the process of moving the coin boxes, although it is difficult to deduce that from the form the question took. The next question was: "It's not done always, how, when it was done?"

A. Well, sometimes it so happened that I walked past, that means, it is not "high".

Q. Was there such a matter?

A. It happened.

Q. Around what time did it happen?

A. Well, before 1994.

At p.285 following a discussion about what happened when coin boxes were out of order and how the coins were retrieved from the boxes he was asked, at p.287

Q. Well, each time how much money could be got by drawing out the coins?

A. About 20 to 30 dollars

At p.288, this question was asked:

Q. O.K. well at what time were they pushed into the cable room for drawing out coins or that rulers were used to draw them out?

A. After collecting coins after the coins were collected.

At p.291 Appellant was asked if he was on duty for the whole week, would there be 3 occasions when he went to collect coins for security guards. He agreed.

64. The questions and answers referred to are the sum of the evidence against the 1st Appellant contained in his statement:

65. Having considered the record of interview I am surprised it was offered as evidence at all. I cannot find anywhere in that statement an unequivocal admission from the 1st Appellant that he had stolen money from his employer at the period alleged in the charge. The questions asked by the interviewer initially related to the possibility that Appellant had offered advantages to his superior officer to facilitate his stealing from pay phones. The interview is rambling, the interviewer lacks interviewing technique and appears vague about how telephone company operatives carried out their work, a matter one might have expected him to check before he started an interview of this nature. At no stage is there is any clear indication that what he was investigating was a theft of money. The answers given by the 1st Appellant to questions such as how they repaired the phone boxes, how they took money from coin boxes and where they took coin boxes to, are at best equivocal and cannot be construed singly or together as meaning a theft had taken place or that the Appellant was admitting a theft. There is a suggestion that he knew that others might have been committing thefts but again there is nothing substantial.

66. His counsel's ineptitude is discussed more clearly in Ground 2 but in respect of this ground, 1st Appellants' counsel appeared to misconstrue entirely the content of his cautioned statement. This led to the extraordinary question asked by counsel suggesting he had admitted the theft, a question which may have misled the Magistrate into believing that an unequivocal admission existed.

67. I agree with Mr. Mullick's contention that as he was running concurrent separate trials the Magistrate had an extremely difficult task. It appears that he may have been confused in considering the records of interview. He does not state in his findings what in the record of interview constitutes an unequivocal admission by the 1st Appellant that he had stolen money as alleged. There is also the possibility that the admissions made by the 2nd and 3rd Appellants may have confused the Magistrate and caused him to attach greater weight to the 1st Appellant's interview than was justified by its content and meaning.

68. I allow the appeal in respect of the 1st Appellant on this ground also. These appeals against conviction are allowed. I do not consider it appropriate to order a re-trial.