THE QUEEN v. LOKE GIRDLEY

IN THE COURT OF APPEAL

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JUDGMENT

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Silke, J.A.:

1. The applicant was convicted on 20th January 1986 by His Honour Judge Gall of two offences, one: attempted robbery and the second: assault with intent to rob. Both matters arose from the same incident.

2. On the first count in the charge sheet, he received a sentence of 2½ years' imprisonment and on the second, 18 months' imprisonment concurrent, giving a totality of 2½ years.

3. The case for the Crown was that an attempted robbery had taken place in the staircase landing at 119, Wanchai Road. A woman was assaulted and, as a result of, the admission of the cautioned statement of the applicant, this assault was clearly an attempt to rob.

4. Mr. Wong who appears for the applicant in this Court has presented four grounds of appeal, one of which he subsequently abandoned. Of those but one needs consideration: that there was a material irregularity in the trial in that counsel who appeared for the appellant on plea day was subsequently briefed to appear for the Crown on fiat at the trial.

5. It is accepted by the Crown that this in fact did take place. What had happened, it would seem, was that counsel, who was briefed by the Director of Legal Aid to represent the appellant on the day when he first appeared in the District Court and who made a bail application upon his behalf, overlooked the fact that she had in fact accepted those instructions and later accepted a brief from the Crown to prosecute.

6. On the plea day she has been dealing with seven different defendants and, as the trial took place some time later, she had completely forgotten that she had dealt with this particular appellant. We cast no blame on her but perhaps a little more care in future might be taken by counsel who find themselves appearing on plea day for a multiplicity of defendants in respect of any prosecution fiat they might accept at a later stage.

7. But this leads to the feeling, not so much that a miscarriage of justice has taken place, but that justice has not been seen to be done. There are authorities, and we have been referred to them, where counsel or, in particular, solicitors having appeared in one capacity then appeared in another. The informed bystander might well feel a sense of shock on, becoming aware of counsel appearing in Court on behalf of the applicant and at a later stage against him. The applicant himself would be entitled to a genuine sense of grievance.

8. In those circumstances, we think the conviction cannot stand and the Crown very rightly taking the same view, we grant leave, allow the appeal and quash the conviction.

9. I might add that nothing of all this was known to the trial judge until the matters had finished. He drew attention to it at the conclusion of his reasons for verdict.

10. The main argument before us was whether there should or should not be a re-trial. Mr. Wong submitted that: there were two counts and one was really an alternative to the other; that there should have been one count only in the indictment; that the sentence passed of 2½ years has been partially served already, the applicant having spent 5 months in prison; that the circumstances of the offence were not such as would warrant this Court now directing there should be a re trial; that, although the applicant has previous convictions, they are related to dangerous drugs and that his addiction to dangerous drugs may well have affected him in the commission of the offences for which he was convicted. He further submitted that the interest of justice would be served by, perhaps, drawing the attention of a society such as the Discharged Prisoners Aid Society to the predicament in which the applicant finds himself in relation to his drug addiction and that a retrial would not be of assistance to the prisoner himself.

11. We take the view that this was an offence of some gravity. People are entitled to travel within their own building in safety. Without delineating further on the facts, we think that this is a case in which there should be a re trial but only on the attempted robbery charge, not on the two counts which the applicant originally faced. A new trial will be ordered on the count of attempted robbery on a fresh indictment containing that count only.