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)  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 ( 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 ( 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 ( 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.”
The Standard: Judges slam ‘manifest injustice’
明報: 繫獄5年歷喪父 料難索償律政司
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.
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