Miscarriage of Justice

August 17, 2021 08:57
Photo: www.hkcfa.hk

How a young man of 20 with a previous good character, could be robbed of 5 of the best years of his life, given a 23 year sentence of imprisonment before the Court of Appeal overturned his conviction, is an object lesson in the precarious nature of a system of criminal justice if the lawyers are corrupt and/or incompetent.

Ma Ka Kin was an unsophisticated, simple minded employee in a noodle shop, easily duped into unwittingly being made a party to illegal trafficking in dangerous drugs.

Any lawyer with common sense would have quickly recognised that Ma was the victim of a conspiracy to pervert the course of justice.

Asked by his workmate, Ah Him, the son of his employer, for the use of his address, he agreed to deliver the post office parcel delivery notice to someone in an MTR station.

The case against him was that 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.

In fact he was wholly ignorant of the contents of the parcel.

When arrested, Ma made a statement explaining how Ah Him had asked for the use of his residential address for a delivery and then told him to give the notification card to someone at an MTR station.
Ma did not think that he was being asked to do anything which might be problematic or illegal; although he did suspect that the shipment might involve “parallel goods”.

Ah Him’s father, Ma’s boss, introduced Ma’s father to a firm of solicitors in the shape of a solicitor’s Clerk by the name of Paul Chan, telling Ma senior that he need not be concerned about the legal fees as they would be covered.

Customs officers discovered Ah Him’s address and when they searched it found several packets of cocaine whereupon they charged Ma and Ah Him jointly for trafficking in the drugs in the parcel.
Ma was given legal advice by Paul Chan and defence counsel Ms. Dorothy Cheung, the outcome of which was that Ma agreed to plead guilty if the cases against Ah Him would be dropped.

Unless you are simple minded, by now you will already have noted that something is seriously amiss.

Why, you ask, since Ma was ignorant of the contents of a parcel that he never saw or touched, was he being advised to plead guilty?

And why are Ma’s lawyers – who are being paid for by Ah Him’s relations – looking after Ah Him’s interests rather than those of their own client?

Even a first year law student could see the screaming conflict of interest.

What on earth possessed Customs and the Department of Justice to drop the joint charge against Ah Him when he had been found in possession of packets of dangerous drugs?

On his original lawyers’ advice, Ma entered a plea of guilty in the Magistrate’s Court to a charge which he now faced alone because the prosecution had dropped Ah Him out of the trafficking case. Ma was sent for sentence to the High Court, by which time his father had begun to smell a rat and applied for Legal Aid. Fresh lawyers were instructed and Ma applied to change his plea to not guilty.

The grounds for the application to change his plea were that his guilty plea had been entered involuntarily under circumstances of duress, undue influence and/or misrepresentation by virtue of the wrongful and misleading “legal advice” of his own legal team at the time.

The application was heard by High Court judge Mrs. Justice Barnes who heard evidence from Ma and his father and from Paul Chan and Dorothy Cheung.

That anyone with half a brain would have expected Barnes J to swallow the codswallop served up by Chan and Cheung defies belief, either that or they were confident that the Department of Justice was staffed by the halt, mentally lame and blind.

Barnes J is a very experienced judge in criminal matters, she saw through the fantastic perversion of the truth that Chan and Cheung sought to purvey and allowed Ma to change his plea.

By this time, unless your head was stuck so far in the sand that you would not have heard a supersonic boom, it was as plain as the nose on your face that Ma had not only been set up by Ah Him but duped by Chan and Cheung into a nice little deception that got Ah Him off the hook and left Ma facing a 23 year prison sentence.

Bear in mind that Ma is a simple lad yet both his counsel, Dorothy Cheung and Paul Chan the solicitor’s clerk, swore that he drafted, in his own words, a statement recanting his original statement under caution, in the following terms: “I, Ma Ka Kin, upon explanation given by my counsel in this case and the solicitor of your esteemed firm, now instruct your esteemed firm to request for giving supplementary statements to the Department of Justice and the C & E department regarding my statements given to the C & E department in November 2016, for the purpose of clarifying that no one instructed me to receive the parcel involved in this case.”

This supplementary statement, read in its entirety, is a grotesque confection of lies aimed at getting round Ma’s original statement which named Ah Him as the one who asked him for his help. To get the true flavour of this case you have to read the supplementary statement.

Unquestionably, the case was reviewed by the Department of Justice before the decision was taken to proceed to trial on the trafficking charge. I find it barely credible that anyone with an iota of experience of criminal cases could fail to see what was afoot. In the light of Barnes J’s judgment, what was the Director of Public Prosecutions thinking to allow this case to proceed?

Yet it did.

At the trial, the Judge frequently expressed his grave reservations about the wisdom of continuing with the trial and at the close of the Prosecution’s case said that he was thinking of withdrawing it from the jury but the prosecution carried on, regardless.

After Ma gave evidence, the trial Judge said “How can I allow …a miscarriage of justice in my court?” and adjourned the case, inviting Prosecuting Counsel to lay the facts before the DPP.

That worthy also failed in his duty to bring the charade to a summary end, instructing Prosecuting Counsel to press ahead with the trial.

At this juncture I must raise a particular hobby horse of mine. Once counsel is instructed, especially in a criminal case, not least because he or she has all the facts at their fingertips, they have the carriage of it and are responsible for its conduct.

In my judgment, the proper course was for Prosecuting Counsel to ignore the DPP’s view and to offer no evidence or argument in support of the case, opening it for the judge to order an acquittal.

I find it sad and dispiriting that Prosecuting Counsel, whom I know personally, did not do so but persisted in this travesty. I expected much better of him. The case called for the exercise of independent judgment, the ultimate responsibility of a barrister.

Reluctant though I am to criticise the trial judge, armchair criticism has the benefit of hindsight, but in my opinion he too failed to deploy his discretion to bring the case to a summary end when he plainly concluded that it should have been stopped.

As the Court of Appeal observed “Whatever happened in this case does not reflect well on the legal profession or the legal system.”

Specifically, it calls into question the integrity of the Department of Justice in its role in the administration of criminal justice, in the words of the Court of Appeal, the Department’s “alacrity to accept a plea from anyone, so that someone whom the prosecution must have realised was far more involved in the drug-trafficking hierarchy was not then proceeded against, is not an attractive feature of this case, and does not reflect well on our prosecutorial system. It can lead to manifest injustice and that is what we think has happened in this case.”

Even in the appeal hearing the Senior Principal Prosecutor Ms. Hermina Ng continued the totally unrealistic and blinkered approach, even having the temerity to ask for a re-trial when the court quashed the conviction, an application that the Court of Appeal treated with the contempt that it deserved.

The public should take comfort from the Court of Appeal’s judgment. With a court of this quality, the risk of grave injustice going uncorrected is that much slimmer. Hong Kong should also recognise the invaluable role played by the Legal Aid Department who came to Ma’s aid. Nevertheless, it took 5 years for justice to prevail.

But, as the court asked, rhetorically, how could a man with convictions for rape, robbery, burglary, blackmail and escape from lawful custody have been employed as a solicitor’s clerk? And given access to prisoners.

The firm, Chung & Associates, went out of business in 2017. It may not have been the case in this instance but quite often, solicitors’ clerks engaged in criminal work actually own the firm of solicitors, which they use as a legitimate front for their nefarious activities.

The ploy of offering “free” legal representation to gullible dupes like Ma is also a common device to get the genuine crook off the hook. How the DoJ failed to recognise the signs that were staring them in the face defies belief.

Barnes J and the trial judge both recognised that there was something seriously wrong, the former acted on it, regrettably the latter’s actions fell woefully short of what was necessary.

The law is not just a set of rules in books, it requires an active, critically enquiring mind and prosecutors need both a critical faculty and first-hand experience if they are to avoid terrible miscarriages of justice such as the Court of Appeal terminated in Ma’s case.

You have to have an instinct for truth and reality which can only be garnered at the coal face of the criminal justice system, something that a blinkered, desk bound legal officer in a government Department cannot acquire.

What half-wit, let alone a lawyer, could have believed that a simple, 20 year old worker in a noodle shop could have composed the sophisticated account ascribed to Ma in order to exonerate Ah Him and get around the original statement that Ma gave to the police on his arrest?

It is as plain as a pikestaff that Chan, Cheung and Ah Him should face prosecution for conspiring to pervert the course of justice.

Dorothy Cheung was called to the Bar in 2014, hence she was typical of the vulnerable counsel who fall prey to wily criminal solicitor’s clerks but inexperience does not excuse criminal behaviour.

Furthermore, some serious self-examination is called for in the criminal division of the Department of Justice.

I, for one, am very angry and believe that heads should roll for this.

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Queen's Counsel