PRESS RELEASES | AUG 27, 2021
Good News from our CLE Team
The Clinical Legal Education (“CLE”) team is delighted to share that in August 2021, the Court of Appeal in HKSAR v Ma Ka Kin (馬家健) [2021] HKCA 1188 allowed our client’s appeal, quashed his conviction, set aside his sentence and declined to order a retrial. The CLE team assisted him to obtain legal aid to support his appeal, and he was then represented on legal aid assignment by Mr Eric Cheung as solicitor advocate leading junior counsel and former CLE student Mr Jevons Chan.
Our client, Mr Ma, was only 20 years of age and of clear record at the time of his arrest. The case against him consisted of the provision of his residential address to another for the purpose of receiving a parcel from abroad; the parcel was found to contain 1,185 grammes of cocaine, the retail value of which was just under HK$1.9 million. There was no suggestion that he had ever sought to collect or possess the parcel himself, or that he had ever come into contact with the parcel or its contents. It was alleged that, by allowing his address to be used for the reception of the notification card and then delivering the notification card to another person, he had done acts which amounted to an attempt to traffic in dangerous drugs, knowing that the parcel to be collected by means of the notification card left at his address contained dangerous drugs. Customs officers arrested him at the address on the parcel; after being cautioned, he claimed that his former supervisor in a restaurant, “Ah Him”, asked him to collect the parcel on his behalf.
Mr Ma was originally charged, together with “Ah Him”, with a joint charge of trafficking in the dangerous drugs contained in the parcel. However, that charge was subsequently amended by removing the name of “Ah Him” and leaving Mr Ma to face the charge alone. He originally pleaded guilty before a magistrate; however, when the matter came before a deputy judge of the High Court for sentence, he indicated that he wished to withdraw his plea of guilty on the basis that it had been entered involuntarily under circumstances of duress, undue influence and/or misrepresentation by virtue of the wrongful and misleading “legal advice” of a solicitor’s clerk and his then legal team. In granting his application to change his plea, Barnes J delivered a judgment ([2018] HKCFI 2711) making certain findings which did not reflect well on his original legal team; fundamentally, she found that the clerk and his firm had the interest of “Ah Him” at heart rather than that of Mr Ma.
The matter then proceeded to trial before Andrew Chan J. Throughout the trial, the judge expressed his concern about the prosecution case and commented in very strong terms in his discussion with counsel in the absence of the jury about what had taken place in respect of Mr Ma’s previous plea of guilty. The judge repeatedly raised concerns over whether it was right for the prosecution to continue with the trial and eventually adjourned the case for prosecuting counsel to reconsider his position and seek instructions; prosecuting counsel informed the judge that after speaking to counsel of the Prosecution Division he was instructed to continue with the case. Eventually, Mr Ma was convicted by the jury by a majority of 5:2 and was sentenced to 23 years’ imprisonment.
Mr Ma applied for leave to appeal and he was initially refused legal aid. He wrote to our CLE Office for assistance while serving his sentence. Upon considering a 17-page letter from our CLE Office, Macrae VP granted him an appeal aid certificate on the basis that the background to the case, and the trial judge’s concerns about that background, were unusual and warranted closer examination by a lawyer ([2021] HKCA 101). Subsequently, Zervos JA granted him leave to appeal against conviction on all grounds of appeal against conviction and sentence put forward by Mr Eric Cheung and Mr Jevons Chan ([2021] HKCA 524). In allowing the appeal, the Court of Appeal expressed that “… this is a case where each member of this Court was left with a lurking but distinct doubt about the correctness of the jury’s verdict, which was itself arrived at by a majority of 5:2”; it also listed out some “… serious questions which require to be answered if miscarriages of justice are to be averted in the future.”
Read full judgment: HKSAR v Ma Ka Kin (馬家健) [2021] HKCA 1188
Media Coverage
HKFP: Judges criticise Hong Kong’s Justice Dep’t over prosecution of possibly innocent man
The Standard: Judges slam ‘manifest injustice’
SCMP: Hong Kong prosecutors must ensure there is no miscarriage of justice
SCMP: This shocking miscarriage of justice demands answers
明報: 張達明：說青年認罪「師爺」 非律師會授權人員 難核實案底 倡與警協商
明報: 游說青年認企圖販毒 師爺案底纍 官曾就檢控提多處疑點 張達明：控方稱「睇吓陪審點判囉」
明報: 繫獄5年歷喪父 料難索償律政司
明報: 青年因販毒案「白坐監」近5年 張達明質疑涉事「師爺」有不誠實案底 律政司證據不足仍續檢控
香港電台: 青年涉販毒上訴庭推翻定罪 張達明引述判詞指疑點重重
香港01: 青年涉販毒案無端坐冤獄 終上訴得直 張達明嘆：無端端坐咗五年
香港01: 「冤案」的發生不會只是單一問題
香港01: 師爺遊說青年認藏毒罪 多份判辭解讀 法官多番質疑控方及律師
立場新聞: 青年被指販毒判囚 23 年上訴得直 官斥律政司放生刑責更重者 張達明：被告已服五年冤獄
眾新聞:【馬家健冤案】懶理上訴庭促交代避不公 律政司拒評誰負責案件 律師會研堵漏洞
眾新聞:【馬家健冤案】警方調查誘使認罪至少兩年 控方三度錯失糾正機會
在晴朗的一天出發: 控販毒判囚青年得直，法官批控方告無辜，但放生重責者
在晴朗的一天出發: 冤案
在晴朗的一天出發: 5年
About Clinical Legal Education at HKU
The CLE Programme was launched in January 2010 as the first and only live-client clinical legal education programme in Hong Kong. We run a Free Legal Advice Scheme (“FLAS”) on HKU Campus under the Duty Lawyer Service, offering free preliminary legal advice to members of the public facing legal problems involving the laws of Hong Kong. Our CLE team also assists clients such as Mr Ma in their applications for legal aid for the purpose of pursuing their criminal appeals.
As of August 2021, we have handled over 2000 cases with over 700 students involved.
Despite the high operating costs of the CLE Programme, the Faculty is committed to providing quality experiential learning for its law students across all years, from gaining exposure through court attendance at criminal appeal hearings to developing practical lawyering skills through interviewing real clients and conducting legal research under the supervision of CLE teachers and qualified lawyers.
Please visit our website and follow us on Facebook for more details on our efforts in serving the public and providing quality teaching for our students.
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