A LAWYER'S mistake led to a High Court judge yesterday ordering that a defendant be given a new trial. Mr Justice Duffy said So Chor-man, charged with hiring a person who had no legal right to work, should have been told that by not giving evidence he made his conviction inevitable. Although defendants have the right to silence, there are situations where the case against them is so strong they need to put forward an explanation. Mr Justice Duffy's ruling came on the same day that another judge, in a separate hearing, called for steps to be taken to ensure young lawyers did not repeat the error. Mr Justice Sears said it was 'alarming' that situations arose where defendants were not called as witnesses when the circumstances of the case made it in their interest to do so. 'It is not surprising they are convicted,' he said. Mr Justice Duffy ordered So, a hairdresser, to be given a second magistrate's court trial. So was arrested after he was found to have an illegal immigrant working in his Mongkok salon. During his trial, the immigrant said So knew he was not supposed to be working. The charge is one in which 'strict liability' applies. This means employers have a duty to take every precaution to ensure their workers are legally entitled to have the job. Philip Dykes, acting for So in the appeal but not at the magistrate's court, said it was 'inevitable' he would be convicted if he did not give evidence in his defence. Mr Justice Duffy said: 'It is rare that appeals are allowed because of counsel's failure to properly conduct proceedings on behalf of their client.' But this matter was of such importance that a re-trial was necessary, he said. Mr Justice Sears made his comments after hearing an appeal by truck driver Man Hau-tak who was fined $3,000 and ordered to pay $2,000 costs when convicted of careless driving at Sha Tin Court. He was charged after colliding with a public light bus on the Tolo Highway near Sha Tin on January 24 last year. Mr Justice Sears dismissed the appeal and did not order a re-trial. 'I have some sympathy for him. In a careless driving case one expects an explanation from the driver. Unfortunately the lawyer did not call his client . . . In that case I have only one side of the story,' he said. Neither defence barrister responsible for failing to put their client in the witness box was named in court.