抗辯到底

初犯店鋪盜竊怎麽辦一文的留言，驅使我寫這一篇。本篇旨在討論，絲毫没有批評别人之意，真的要批評，我會率直地講。

有人覺得如果律政司不肯對初犯被告撤銷控罪，讓其簽保守行為，便應積極抗辯，反正没有損失。另外，有人(律師)認為收了客錢，怎能叫他認罪。不能叫他自己考慮認罪嗎？總有些被告會對大狀承認干犯了罪行，真的無論如何都為他死撐？香港大律師的行為指引這樣寫喎：

149. A barrister to whom a confession of guilt has been made by his client must observe the following rules:

(a) If the confession is made before the proceedings have started he may continue to act only if the plea is to be one of guilty, or if the plea is to be one of not guilty he acts in accordance with the rules set out in Annex 13 which impose very strict limitations on the conduct of the defence. In the latter case he must explain his position to the client and his instructing solicitor.

If the barrister is instructed to act otherwise than in conformity with this rule he should return his brief.

(b) If the confession is made during the proceedings or in such circumstances that he cannot withdraw without compromising the position of his client, he should continue to act and to do all he honourably can for him; but this situation similarly imposes very strict limitations on the conduct of the defence; and the barrister may not set up an affirmative case inconsistent with the confession by, for example, asserting or suggesting that some other person committed the offence charged or calling evidence in support of an alibi.

150. (a) It is the duty of defending Counsel to advise his client generally about his plea to the charge. It should be made clear that whether he pleads "not guilty" or "guilty", the client has the responsibility for and complete freedom of choice in his plea. For the purposes of giving proper advice, Counsel is entitled to refer to all aspects of the case and where appropriate he may advise his client in strong terms that he is unlikely to escape conviction and that a plea of guilty is generally regarded by the Court as a mitigating factor.

(b) Where a defendant tells his Counsel that he did not commit the offence with which he is charged but nonetheless insists on pleading guilty to it for reasons of his own, Counsel must continue to represent him, but only after he has advised what the consequences will be and that what can be submitted by Counsel in mitigation will have to be on the basis that the client is guilty.

認罪可能是對客仔最有利的做法。

香港有一股風氣，以為犯了事請律師的目的是「打甩」罪名，否則干嗎要請？毫無疑問，被告認罪會留下案底，抗辯有可能成功，成功脫罪便不留下污點。不論視作承擔，抑或罪有應得，犯法會有可能帶來定罪，是顯而易見的後果。偷了些價值不高的東西而留下終身烙印，的確不值得。在港鐵摸人一下屁股而坐監14日，更加不值得。到了被拘捕檢控時才覺得不值得，豈非咎由自取，可以埋怨誰？