HKSAR v. MA KA KIN

CACC 297/2019

[2021] HKCA 524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 297 OF 2019

(ON APPEAL FROM HCCC NO 312 OF 2017)

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J U D G M E N T

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1.  On 9 April 2019, following a trial before Andrew Chan J (“the judge”) and a jury, the applicant was convicted by a majority of 5:2 of one count of Attempting to traffic in a dangerous drug, namely 1,715 grammes of a powder and solid containing 1,185 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and section 159G of the Crimes Ordinance, Cap 200. On 13 September 2019, the applicant, who was 20 years of age at the time of the offence, was sentenced to 23 years’ imprisonment.

2.  On 4 October 2019, the applicant filed a Notice of Application for Leave to Appeal (Form XI) in respect of his conviction only.

3.  On 21 January 2021, the application was heard by Macrae VP.  Just prior to the hearing a written submission was filed with the Court on behalf of the applicant from Mr Eric Cheung, of the Clinical Legal Education Office of the University of Hong Kong.  As a result, Macrae VP granted the applicant an appeal aid certificate in respect of his application for leave to appeal against both conviction and sentence.

The prosecution case

4.  On 19 October 2016, a parcel from Brazil addressed to “Mr Lee Company – Kat’s Beauty Centre, (address omitted)(referred to as Flat X)” was selected for examination by Customs officers on its arrival in Hong Kong.  They found in the parcel concealed in a frame four packets of white coloured powder wrapped in silvery plastic bags. The powder was subsequently confirmed to be 1,715 grammes of a powder and solid containing 1,185 grammes of cocaine.  The estimated street value of the cocaine at the time was about $1.9 million. 

5.  Customs officers conducted a delivery operation of the parcel and placed a mail notification card in the mailbox at the address on the parcel.  On 3 November 2016, a van driver with the mail notification card approached the post office for collection of the parcel.  The van driver had been commissioned to collect the parcel.  The van driver was subsequently released when it was ascertained that he had no involvement in the importation of the parcel.  However, on the same day, Customs officers arrested the applicant at the address on the parcel.  At the time, the applicant lived with his parents and younger sister at Flat X.

6.  After being cautioned, the applicant claimed that his former supervisor in a restaurant, “Ah Him”, asked him to collect the parcel on his behalf.  The parcel did not arrive at his home, but instead, a mail notification card was placed in his mailbox.  The applicant was then instructed to pass the card to a man at Tseung Kwan O or Po Lam MTR station. 

7.  In a subsequent video record of interview, the applicant explained that he had known Hung Chi Him, who he called Ah Him, for about 2 years.  He said that in about June or July 2016, Ah Him had asked him to help collect the parcel.  He agreed and sometime in late October, Ah Him told him the parcel was on its way, but he should not receive it.  He told him that he should wait for the postman to deliver a mail notification card and give the card to him.  He said he did not know why Ah Him sought his help to have the parcel delivered.  He had not mentioned what the parcel was about and he offered no reward to him for collecting it.  Later, on 24 October, he received the mail notification card and informed Ah Him that he had it.  On the next day, Ah Him told the applicant to bring the card to Tseung Kwan O and then to Po Lam.  He thought he would see Ah Him but eventually another male picked up the card from him.  The other male gave him $1,000, which was money Ah Him owed him for a football bet.  The applicant said that he had no knowledge of the content of the parcel although he thought it might contain some parallel goods. 

The defence case

8.  The applicant gave evidence and called his father as a defence witness.  The defence case was that the applicant was a gullible young man, who had been tricked into becoming involved in the importation of the parcel and subsequently pleading guilty to the offence of trafficking in the drugs contained in the parcel. 

9.  The applicant was 20 years of age at the time of the offence.  He knew and trusted Ah Him.  He had been working with Ah Him in a fast food store for 1 to 2 years and later worked with him at a ramen shop owned by Ah Him’s brother.  In July 2016, Ah Him told the applicant that he was not free and asked him whether he could help him to collect a parcel.  The applicant agreed.  In early August 2016, the applicant gave Ah Him his address to receive the parcel.  A few months later in October, Ah Him told the applicant the parcel had been sent.  He explained that the postman would leave behind a card and that he should give the card to him.  He stressed upon him that he should not receive the parcel.  He reminded him of this several days later.  The applicant considered this was strange and thought the parcel might contain parallel goods. 

10.  In late October, a mail notification card was sent to his residence.  His younger sister retrieved the card from the mailbox and placed it on the table inside their home.  The applicant thought it would be for Ah Him’s parcel. 

11.  On 25 October 2016, the applicant sent a message to Ah Him informing him that the card had arrived.  Ah Him asked him to bring the card to Tseung Kwan O MTR station.  The applicant did as he was told but he was then instructed to take the card to Po Lam MTR station, which he did.  He was told by Ah Him to wait and another person would come to collect the card.  Sometime later, Ah Keung showed up and the applicant gave the card to him.  The applicant received $1,000 from Ah Keung for a soccer bet owed to him by Ah Him. 

The applicant’s guilty plea

12.  On 3 November 2016, the applicant was formerly charged with trafficking in a dangerous drug together with Hung Chi Him.  On 27 January 2017, the applicant was represented by a firm of solicitors, Messrs Chung and Associates.  A clerk from that firm and a barrister went and saw him.  After several meetings, the applicant decided to plead guilty upon receiving advice, mainly given by the clerk.  The barrister in a letter to the Prosecution Division dated 15 March 2017, stated that she had been instructed to make representations on behalf of the applicant that he would plead guilty to the charge laid against him and that Hung Chi Him was innocent and not involved in the receipt of the parcel.  She concluded the letter by stating that she was instructed that if the prosecution dropped all the charges against Hung Chi Him, the applicant would plead guilty to the charge against him.  The contents of the letter is a matter of some significance so I will set it out in full.

“I am instructed to make representations for the abovenamed 1st Defendant Mr Ma Ka Kin who is charged with trafficking in a dangerous drug. I am instructed that Mr Ma intend to plead guilty to the charge laid against him. Mr Ma is fully explained of his situation and would like to express his willingness to assist Mr Hung Mr Hung Chi Him as he was innocent of the charges against him.

Mr Ma and Mr Hung were acquainted at a noodle bar where they worked together before. They have remained in contact since Mr Hung left the job. At the time of arrest by the Customs and Excise Department, Mr Ma was in a confused state. He admitted that he had made some errors in stating his case against Mr Hung in his witness statement. Mr Ma also confirmed that Mr Hung was innocent and had never asked him to receive any parcel.

Finally, I am instructed that if the Prosecution would drop all the charges against Mr Hung, Mr Ma will plea guilty to the charge against him.

I respectively invite you to consider the above proposal. Thank you for your time and consideration in advance.”[1]

13.  The Prosecution Division responded by letter dated 16 March 2017, rejecting the plea bargain and indicating that the case against the applicant would proceed as charged in the High Court, whilst Hung Chi Him would only be dealt with in the District Court in respect of a quantity of cocaine found in his bedroom.[2]

14.  The applicant formally pleaded guilty to the drug trafficking charge on 28 August 2017.  At the request of the applicant’s legal representatives, the summary of facts to which the applicant pleaded guilty had the name Hung Chi Him deleted and replaced with Ah Him. 

15.  The applicant was given a statement by the clerk to memorise.[3]  It stated that the applicant had lied in his replies under caution when he said he was instructed by Ah Him to receive the parcel.  It stated that it was actually Ah Keung who instructed him to receive the parcel and he falsely incriminated Ah Him because he owed him money.  It further stated that he later realised he was wrong, and therefore told his lawyers that Ah Him was not involved. 

16.  At some later stage, the applicant terminated the services of his legal team and engaged new lawyers who had been assigned by legal aid. 

17.  On 21 November 2017, the applicant applied for withdrawal of his plea when he appeared before Deputy High Court Judge Saw for sentence.  The application was adjourned and was heard by Barnes J on 9, 12 and 27 November 2018.  In support of the application, affidavit evidence was filed by the applicant and his father.  In response, affidavit evidence was filed by the clerk and the barrister.  Having heard further oral evidence from the deponents, Barnes J in a written judgment, handed down on 11 December 2018, held that the guilty plea was entered involuntarily and allowed the applicant to withdraw his guilty plea.[4] Barnes J found that there was a ring of truth in what the applicant had said,[5] and that the clerk and his firm had the interest of Ah Him at heart rather than that of the applicant.[6]

The trial

18.  Throughout the trial, the judge expressed his concern about the prosecution case.  On 10 April 2019, at the close of the prosecution case, he discussed with counsel in the absence of the jury whether the case should be withdrawn from the jury in light of Barnes J’s decision, the dubious nature and background of the case, and the lack of strength of the prosecution evidence.[7]  The prosecution accepted the judge’s views that even if the jury did not believe the exculpatory statements of the applicant in his video record of interview, what was left in the prosecution evidence against the applicant was “essentially, the provision of an address and the delivery of the notification card to a third party”.[8]  The judge expressed his unease about the case.[9]  However, after hearing submissions he ruled that there was a case to answer.[10]

19.  Notwithstanding his ruling, the judge continued to voice his concern about the case,[11] particularly about the long letter, which the clerk typed out in Chinese for the applicant to memorise (referred to as “the Long Story” at trial).[12]

20.  The applicant gave evidence in his own defence. He testified how he was induced by his then legal team to bear all criminal responsibility for the case and exonerate Ah Him.  He testified that the contents of “the Long Story” were untrue except for the fact that Ah Him owed him $1,000. 

21.  The applicant’s father in his testimony said that he came to know that the applicant had been charged with trafficking in a dangerous drug when he received a call from Hung Chi Kan, the owner of the ramen shop, offering to hire a lawyer for the applicant.  The father agreed, but he actually had no idea who paid for the applicant’s legal fees. 

22.  Throughout the proceedings, the judge commented in very strong terms in his discussion with counsel in the absence of the jury about what had taken place in respect of the applicant’s previous plea of guilty.[13]  

23.  The judge repeatedly raised concerns 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.[14] Prosecuting counsel informed the judge that after speaking to counsel of the Prosecution Division he was instructed to continue with the case.[15]

Grounds of Appeal

Ground 1: Material misdirection as regards the advice given by the clerk to the applicant

24.  By this ground it is complained that the judge failed to direct the jury regarding the improprieties of the advice of the clerk in the summing-up.  It is submitted the judge wrongly and repeatedly directed the jury that the relevant advice in question was actually “correct” in various important aspects.

25.  Mr Cheung, for the applicant, contends the judge’s comments about the clerk’s advice were simply unwarranted and highly prejudicial to the applicant.  He argues that it had the effect of sanctioning the advice of the clerk that the applicant’s case was hopeless and difficult to fight; that the applicant chose to plead guilty at an early stage in order to obtain a greater sentencing discount; that the applicant initially implicated Ah Him in order to shift the blame on him but later decided to exonerate Ah Him after he had been advised that the more people involved the more serious his offence would be for the purpose of sentencing.  It also provided collateral endorsement of “the Long Story”.

26.  Mr Cheung finally contends that the judge’s comments about the correctness of the clerk’s advice were legally wrong.

Ground 2: Material non-direction on the evidential use of the relevant defence exhibits and the previous guilty plea of the applicant

27.  By this ground it is complained that the judge failed to give any direction on the evidential use of the contents of the defence exhibits, including in particular, the letter from defence counsel to the prosecution (Exhibit D2A)[16] and “the Long Story” (Exhibit PD4)[17] which contained contents prejudicial to the applicant and failed to caution the jury against the use of “the Long Story” or the previous guilty plea of the applicant against him.  Mr Cheung argues that:

(a)  The contents of “the Long Story” were clearly prejudicial to the applicant as it extensively described the mode of operation of the drug syndicate, the purported role of the applicant as a member of it and his previous participation, which was accepted by the judge and prosecuting counsel to be lies that were not made up by the applicant.

(b)  The danger of the jury placing weight on the withdrawn guilty plea of the applicant was further aggravated because the judge used a defendant’s confession of guilt as an example of direct evidence proving the mental element of the offence of trafficking in a dangerous drug in his summing-up to the jury.[18]  

Ground 3: Existence of lurking doubt

28.  By this ground it is argued that, having regard to all the circumstances as a whole, including the judge’s grave misgivings about the case, the risk of miscarriage of justice, the weakness of the prosecution evidence, there was substantial doubt as to whether the verdict was safe and satisfactory.

Discussion

29.  The defence case heavily hinged on the inappropriate advice given to the applicant by the clerk that sought to exonerate Ah Him, while the applicant accepted full criminal responsibility for the importation of the drugs.  When the applicant pleaded guilty to the offence of trafficking in a dangerous drug, the summary of facts were amended to delete the name of his co-accused, Hung Chi Him, which was substituted with the name of Ah Him.  The charge against Hung Chi Him was withdrawn, although he was dealt with in the District Court for a quantity of cocaine that was found in his residence. 

30.  I am informed that at the time of trial it was mentioned that there was a police investigation in respect of the circumstances that led to the applicant pleading guilty to the drug trafficking offence.  Ms Hermina Ng, for the respondent, explained that the investigation is still current.  She acknowledged the prosecution’s ongoing duties and obligations of disclosure and confirmed that after a review of the materials further disclosure to the applicant will take place.

31.  Defence counsel in his closing address to the jury expressed serious misgivings about the advice given to the applicant but this was not reflected by the judge in his summing-up to the jury.  It is complained that the judge instead gave his own opinion that the advice of the clerk was correct in various respects.  In so doing, it is arguable that the judge unfairly gave credence to the highly prejudicial assertions attributed to the clerk that the applicant’s case was hopeless; that the applicant had shifted blame on Ah Him; and that the applicant was fully responsible for the importation of the drugs. 

32.  The admission into evidence of the document referred to as “the Long Story” and the circumstances of the applicant’s previous guilty plea were highly prejudicial and had the potential of being used by the jury in an impermissible manner.  It is arguable that the judge should have given a very careful direction as to how the jury should regard the evidence adduced about the applicant’s guilty plea and the contents of “the Long Story”.  This was exacerbated by prosecuting counsel referring in his closing address to the statements attributed to the applicant as contained in the documents prepared by his previous legal team, which he accepted were lies.[19] 

33.  The Court of Appeal can quash a conviction on appeal on the basis that it was unsafe and unsatisfactory.  In R v Cooper [1969] 1 QB 267, Widgery LJ noted that a Court of Appeal is charged to allow an appeal against conviction if it thinks that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory.  He explained:

“That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is reaction which can be produced by the general feel of the case as the court experiences it.”[20]

The test enunciated in Cooper’s case is based on the equivalent English provision to section 83(1)(a) of the Criminal Procedure Ordinance, Cap 221.[21]

34.  Whilst the test has been adopted in Hong Kong, it has been stressed that it must be applied with great caution.  The test is sometimes described as a “lurking doubt”, which means not an insubstantial doubt but a substantial remaining doubt about the conviction.  See R v Tang Wai-tong [1979] HKLR 479, at 487. 

35.  A court may allow an appeal where it feels there is a real danger that an injustice may have been done, even though in all other respects no fault can be found in the way the case was summed up to the jury or the verdict was not wrong based on the evidence before the court.  The essence of the test is that there is a real danger that an injustice may have been done or there is a distinct feeling of unease as to the correctness of the conviction.

36.  I have a number of concerns about this case that warrants the full scrutiny of the Court of Appeal.  They involve the circumstances of the applicant’s previous guilty plea, the nature and conduct of his legal representation and the treatment of his case at trial.  I am particularly concerned that the applicant accepted full criminal responsibility for the importation of the drugs and as a consequence the case against Hung Chi Him was not proceeded with by the prosecution.  I am bound to say there are also general issues about the applicant’s conviction as well as his sentence. 

37.  As for the applicant’s conviction, the evidence against him was not strong.  It was accepted by the prosecution that Ah Him was behind the importation of the parcel and that the applicant’s involvement was the provision of his residential address to him.  However, prosecuting counsel in his closing address to the jury, having accepted that the applicant had been treated “very poorly” by his legal team, went on to rely on the documents that he accepted contained lies to submit to the jury that the applicant was blaming others and telling a different story.  He said:

“Now, members of the jury if I could touch very briefly on the events afterwards where he was represented by his legal team, I purposely didn’t ask many questions because I wanted you to focus on this part of the evidence: Did he know? The prosecution will accept he’s been very poorly treated by his legal team. But the fact that another judge allowed him to reverse his plea doesn’t mean he is not guilty of the offence. It simply means that his plea initially wasn’t voluntary. So don’t mix the two things up, members of the jury.

And, members of the jury, those two letters, one handwritten document and one typed document, D3 and D4 -- he signed his name on D3 -- all lies. What did he say in D3? ‘No one instructed me to receive the parcel in this case. I also confirm that I am aware of and understand the legal consequences of the above instruction. I gave the instruction voluntarily.’ That’s not true, is it? What about this one? Other than $1,000, everything there is a lie. He is blaming 阿強when 阿強may be an innocent party absolving 阿謙. Now he’s telling you a different story.”[22]

38.  The reference to D3 is to a document prepared by the applicant’s previous legal team for the purpose of confirming his plea of guilty and his instructions that he was fully responsible for the importation of the parcel.  As already noted, the applicant’s guilty plea was subsequently reversed and the involvement of Hung Chi Him was not disputed by the prosecution.  The document read:

“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 statement 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. I also confirm that I am aware of and understand the legal consequences of the above instruction. I gave the above instruction voluntarily.”[23]

39.  As for the applicant’s sentence, it was accepted by the prosecution that the case against him at its highest was that he had gave his residential address to Ah Him and when he received the postal notification card he passed it on to him.  The applicant’s role was limited and would have a significant bearing on the sentence to be imposed on him for this offence.  See HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. 

40.  I grant leave on all grounds of appeal.

The reversal of plea application

41.  I direct that the Appeal Bundle incorporate the relevant papers and transcript of the application for reversal of plea which have not already been included.  Ms Ng objected to the inclusion of these materials in the Appeal Bundle on the grounds that they would not be of value to the Court of Appeal for its consideration, nor could they be properly before the Court of Appeal because they were not evidence at the trial.[24]  At one stage, Ms Ng argued that it would not be in the interests of justice for this material to be before the Court of Appeal.  I disagree with her objection. 

42.  The subject of the reversal of the guilty plea was an issue at trial and the decision of Barnes J was adduced into evidence without objection from the prosecution.  More importantly, the evidence presented to Barnes J is relevant to the consideration of whether there has been a miscarriage of justice.  Nothing is achieved by the court closing its eyes to information or material that it knows exists and that would provide a full and complete picture of what has taken place.  Indeed, where there is concern that the interests of justice have not been properly served, the Court of Appeal will exercise its power to order the production of a document or thing that it thinks necessary in order to determine the case.  The power to do so is governed by section 83V(1)(a) of the Criminal Procedure Ordinance, Cap 221, which reads:

“Evidence

(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice-

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

…”

43.  I also direct that the Appeal Bundle incorporate the transcript of the judge’s discussion with counsel about prosecuting counsel’s remarks in his closing address and the two jury questions on 11 and 12 April 2019.

[1]  Exhibit D2A, AB, 385-386. 

[2]  AB, 387-388.

[3]  Exhibit PD4.

[4]  Exhibit D5 at AB, 373-381.  See HKSAR v Ma Ka Kin [2018] HKCFI 2711.

[5]  At [27].

[6]  At [30].

[7]  AB, 285K-291K.

[8]  AB, 287P-Q and 288D-E.

[9]  AB, 288R.

[10]  AB, 292A-301F.

[11]  AB, 331H.

[12]  Exhibit D4 at AB, 371-372 and 30T.  See also AB, 338N-O.

[13]  See AB, 331K; 331L-M; 332K; 332O-P; 333K-L; 333L-M; 333T; 334B; and 334H.

[14]  AB, 333I-S and 335F-H.

[15]  AB, 336A-K.

[16]  AB, 385-386.

[17]  AB, 372.

[18]  AB, 20P-S.

[19]  AB, 361.

[20]  At 271. 

[21]  Section 2(1)(a) of the English Criminal Appeal Act, 1968.

[22]  AB, 361B-J.

[23]  AB, 389. Ex D3.

[24]  See letter from Ms Hermina Ng dated 22 April 2021.