Three Court of Appeal judges who freed a young man jailed for attempted cocaine trafficking have criticised Hong Kong’s Department of Justice (DoJ) for prosecuting a possibly innocent man rather than the real culprit, saying the case “does not reflect well” on the legal system.
Ma Ka-kin was sentenced to 23 years in prison in 2019 after a High Court jury found him guilty of the offence. His conviction and sentence were overturned by the three judges last month.
Legal scholar and solicitor Eric Cheung, who represented Ma at the appeal, said on Thursday on Commercial Radio that the case highlighted a problem in the legal profession in which law clerks were able to manipulate cases. Ma was initially given misleading legal advice by a clerk who had several criminal convictions.
In their judgement published on Wednesday, judges Andrew Macrae, Derek Pang, and Kevin Zervos raised several questions “which require to be answered if miscarriages of justice are to be averted in the future.”
The judges questioned why a person with convictions including rape, attempted rape, robbery, burglary, blackmail, and escape from lawful custody would have been hired as a legal clerk, and even have been allowed to visit and give advice to someone in custody.
They also questioned why the prosecution had dropped a case in which the defendant would probably have been convicted had Ma been asked to give evidence. “We trust that they will be properly addressed by the authorities concerned,” the judges wrote.
Cheung said that because the judges’ suggestions were not legally binding, “I’m not sure whether the media, the Legislative Council, or the government will care about the points raised by the Court of Appeal.”
‘Misleading legal advice’
Ma in 2016 allowed Hung Chi-him, a colleague in a ramen restaurant where he worked, to use his (Ma’s) address for delivery of a parcel. Customs later found HK$1.9 million worth of cocaine inside the package.
A mail collection notification card was sent to Ma’s address after no one collected the package following several delivery attempts. Ma, then aged 20, was then instructed to give the notification card to a person at Po Lam MTR station in return for HK$1,000.
Both Ma and Hung were charged in relation to the drugs found in the parcel, while Hung was given a further charge after Customs officers found 20 packets of cocaine at his home.
Hung’s brother hired a legal team to represent Ma which included clerk Paul Chan. Following advice he received from the team, Ma signed a declaration in March 2017 saying that he had decided to plead guilty provided that all charges against Hung were dropped.
However, after his case was transferred to the High Court, Ma discharged the legal team provided by Hung’s brother and applied to change his plea.
His application was approved by judge Judianna Barnes, who found that Ma’s plea was made involuntarily and that Chan and the rest of the legal team “had the interest of Hung Chi-him at heart” rather than those of Ma.
After the trial started, judge Andrew Chan told the prosecution at one stage that he was not “very comfortable with the case” as Paul Chan had evidently tried to shift all blame onto Ma, and that it would be “absurd” if Ma was convicted under those circumstances.
The judge, who said he was “uneasy” about the prosecution, asked prosecutors to brief the Department of Justice (DoJ) about the situation. But the department decided to press on with the prosecution and Ma was convicted by a jury.
The three appeal court judges wrote that “the prosecution appears to have traded the opportunity to pursue a case which it could and should have followed up against the organiser of the offence, for a conviction of someone who was minimally involved and may have been innocent.”
“Whatever happened in this case does not reflect well on the legal profession or the legal system.”
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