Judges blast DOJ for allowing ‘manifest injustice’

Three Court of Appeal judges have launched a scathing attack on the Department of Justice (DOJ) for the “manifest injustice” it allowed in a drugs trafficking case that saw a man wrongly convicted and jailed.

Ma Ka-kin was 20 years old in 2016 when he allowed a former colleague to use his home address to receive a parcel from Brazil. Ma never even saw the package which contained around a kilogramme of cocaine, merely handing a delivery collection card to another person as instructed.

But in 2019, a jury found him guilty of trafficking dangerous drugs and he was jailed for 23 years. After spending five years behind bars – including time on remand – the court has now quashed Ma’s conviction.

In a written judgement, Justices Andrew Macrae, Derek Pang and Kevin Zervos noted that Ma had at first indicated he would plead guilty to the charge. But this was only after he had received “legal advice” from a law firm clerk who it turned out had a string of convictions of his own – including for rape, attempted rape, robbery, burglary, blackmail and escape from lawful custody.

Ma had been referred to the law firm in question by the brother of the ex-colleague who roped him into the affair, Hung Chi-him.

Hung was initially a co-defendant in the case, but the prosecution decided to drop all charges against him.

Justices Macrae, Pang and Zervos noted that the trial judge, Andrew Chan, had spoken of his “unease and discomfort” with the case and its “dubious” factual background. A conviction would be absurd, Chan had gone as far as saying at one point.

The three judges asked how someone with a criminal record as long as the law firm clerk did was able to visit, let alone “advise”, somebody in custody.

They also criticised the prosecution for the “manifest injustice” they had allowed to take place.

“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,” the judges wrote.

Hung was “clearly more involved” in the offences than Ma who was of good character, they said.

“Yet the prosecution seems to have been far more interested in getting a plea of guilty, wherever it came from, and whatever the respective culpability of those involved.”

The judges also called on the authorities to address various issues to avoid future miscarriages of justice, including whether the trial judge’s concerns about the propriety of the prosecution were “properly and fully conveyed” to senior officials in the DOJ, and why the case against Hung was dropped.

Hong Kong University legal scholar Eric Cheung – who helped Ma with his appeal – said it is very rare for the courts to overturn a conviction in this manner.

Cheung said the government does offer compensation for people who are wrongly imprisoned, but successful applications are also very rare.

In response to the judgement, the Law Society said lawyers are not allowed to hire or pay anyone convicted of dishonesty offences for their legal services without the permission of the society.

The society added that it regularly publishes non-exhaustive lists of such convicted persons bound by the relevant laws to its members, and law firms should carry out background checks on job candidates.

It stressed that lawyers alleged to have breached the relevant provisions will be investigated in accordance with established procedures, and cases will be transferred to the Solicitors Disciplinary Tribunal if necessary.