tim's experiment

Last week was a paradise for collectors of courtroom curiosities. To start with we had the case of Mr Ma Ka-kin, a previously blameless worker in a noodle shop. Mr Ma was asked by a friend and colleague, Mr Hung Chi-him, if he could have a parcel from Brazil sent to Ma’s address.

There are a variety of explanations for a request of this kind, and at least some of them are legal. Mr Ma is in any case, as we shall see, not one of the sharpest tools in the shed. He agreed to allow his address to be used.

The parcel was intercepted on its arrival in Hong Kong by the Customs. It contained a kilogram of cocaine. Police officers then searched Mr Hung’s home and found a stash of cocaine there. Mr Ma did not have his own supply, and initially maintained that he had been misled by his colleague and did not know the parcel contained drugs.

The two men were jointly charged with possession, trafficking etc., and then an odd thing happened. Mr Hung offered Mr Ma the services of his solicitor. Mr Ma then met the solicitor’s clerk, whose acquaintance with the law, it later emerged, included a string of previous convictions including rape and robbery. He persuaded Mr Ma that it would be a good idea to offer to plead guilty, on the condition that Mr Hung was let off the hook.

Surprisingly, to me, to the trial judge, the Court of Appeal, and sundry other people who have considered the matter, the Department of Justice agreed to this arrangement. Mr Ma would admit everything, Mr Hung would go free.

Later Mr Ma reconsidered the deal, which involved him volunteering for one of those multi-decade jail sentences which judges believe, however often the superstition is refuted by experience or sociology, are the only way to discourage potential criminals. He changed his legal team and his plea.

When the case came to trial the judge had misgivings. It appeared to him, as it may well appear to you, that Mr Hung and his mysterious associates were the moving spirits behind the whole enterprise and the prosecution of Mr Ma was unfair and possibly unjustified.

The judge actually asked the prosecutor to check with his superiors. Did the Department of (ahem) Justice wish the trial to go ahead? They did. Mr Ma was convicted by the jury – hope you guys are feeling pleased with yourselves now – and the trial judge suppressed his misgivings sufficiently to pass a sentence of 23 years.

Mr Ma subsequently appealed, with success. The conviction was overturned and the sentence cancelled. So why was the whole matter before the Court of Appeal again? Because the prosecution applied for a new trial. The Court of Appeal described the application as “extraordinary and disappointing”. 

They were not happy with the original deal with Mr Ma and they found it disturbing that a solicitor’s clerk had such a criminal background. This last item shows you what sheltered lives judges lead. The problem of shady characters touting for business on behalf of our less finicky solicitors has been around for decades. I remember doing a story about it in 1985.

In one of the local recycled tree carcasses my former colleague Cliff Buddle suggested that there was a problem in the Department of Justice, which often adopted a “win-at-all-costs mentality, taking every point, appealing every defeat and stopping at nothing to secure a conviction,” This may well be true sometimes, but we have another case to consider.

I refer here to a website called Real Hong Kong News, which clearly shares my interest in legal oddities.

In 2020 a 22-year-old woman appeared in a local magistrates’ court charged with drug possession. She had been arrested when she collected a package from the Post Office. The parcel was addressed to her and contained a quantity of ketamine.

The Department of Justice then applied to withdraw the charges on the grounds that a conviction was unlikely. The magistrate demurred, pointing out that defendants were routinely charged with possession if the drugs were simply found in the flat they rented. The question of how much the defendant knew about the contents of the package was a matter for a jury and a conviction was quite likely.

The Department of Justice nevertheless insisted on dropping the case and the magistrate had no choice but to comply. No doubt it was entirely irrelevant that the lady concerned lived in the Tsing Yi Police Married Quarters, because her daddy was a cop.

What is going on here? Looking at these cases one struggles, and I think fails, to believe that this is simply a matter of error or carelessness. It seems that wheels are turning unseen and considerations which cannot be defended in public are being considered behind the scenes. This is not the way the law is supposed to work.

Last year the then Director of Public Prosecutions, David Leung, resigned, telling his colleagues in a farewell email that he ”could not agree with the Secretary for Justice, and the situation has not improved with time”. Perhaps it is a pity he did not go into more detail about what the disagreements were.

There is a more detailed account of the Ma case by Neville Sarony QC here. Mr Sarony concludes that “heads should roll”. But I don’t think we are doing accountability any more.