R. v. CHENG CHI TO and Others

IN THE SUPREME COURT OF HONG KONG

(Appellant Jurisdiction)

MAGISTRACY APPEAL NO.1024 OF 1996

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J U D G M E N T

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1. The three appellants herein were sentenced on 30th July 1996, having each been convicted of going equipped for stealing. They each appealed that conviction.

2. I have placed before me by counsel for the appellants a letter from the counsel who conducted the defence of these appellants in the court below. It reads in part :

" I would like to say firstly that I can recall that the trial was conducted in Chinese and secondly that as far as I can recall I did not inform the Court that D2 and D3 were not taking issue on the admissibility of their verbal admissions because to do so would be contrary to clients' instructions and inconsistent with my words to the Court that all Defendants not only denied making admissions, but also said that they were not cautioned - as recorded in the same paragraph of the courts transcript quoted to me in your letter."

This is a concession and admission by counsel in the court below that he had been instructed firstly to take issue as to the admissibility of the verbal admissions made by the accused; secondly, to deny making the admissions; and thirdly to deny that they were cautioned. An examination, as has been carried out by counsel before me, of the transcript indicates that these instructions were not followed. It is regrettable that counsel should have seen fit to not pursue, as he ought, the instructions that were given to him. I cannot maintain a conviction where the appellants placed their faith in counsel to follow their instructions, and that faith was misplaced.

3. The appeal in respect of each of the appellants against conviction is allowed and conviction in respect of each is quashed and the fines and costs are remitted. I have considered whether or not a retrial should be ordered in this matter. Given the nature of the offence and public interest, I am of the view that no retrial should be ordered.