HKSAR v. Ma Ka Kin

CACC 297 /2019

[2021] HKCA 101

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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Before: Hon Macrae VP in Court

Date of Hearing: 21 January 2021

Date of Judgment: 21 January 2021

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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. 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, together with essentially three home-made grounds of appeal.  He is currently unrepresented before me today.  His application for leave based on the home-made grounds of appeal is opposed by Ms Hermina Ng, on behalf of the respondent; although I have had a helpful exchange with her this morning as to the most practical way of proceeding in the circumstances which have recently emerged.

3.Three days ago, on 18 January 2021, the Court received a 17‑page letter from Mr Eric Cheung, Solicitor Advocate, in his capacity as Director of Clinical Legal Education at the Faculty of Law, University of Hong Kong drawing my attention on the applicant’s behalf to the history of this matter, which involved, inter alia, Barnes J allowing the applicant to change his plea from one of ‘guilty’ to one of ‘not guilty’; and the judge at trial expressing his “unease” at the state of the evidence and the propriety of the prosecution[1].  At one point, the judge voiced his concern about there being a possible “miscarriage of justice” in his court[2], and even suggested that a verdict of ‘guilty’ might be an “absurd” outcome given the evidence[3]. He had in fact required the prosecutor to take instructions from the prosecuting authority on whether to proceed with the prosecution. Nevertheless, in due course, the judge did rule a case to answer and his own misgivings about the evidence did not find their way into the summing-up.

4.In view of the matters raised by Mr Cheung, I agree that this matter should be looked at more closely by a lawyer.  The background and the judge’s comments are certainly unusual; whether they provide the basis of reasonably arguable grounds of appeal remains to be seen.  I am not at this stage prepared to grant leave to appeal against conviction or to deal with the applicant’s home-made grounds of appeal: indeed, the home-made grounds may not ultimately be pursued or they may achieve a different complexion or significance when seen in the context of other grounds of appeal.  Once perfected grounds of appeal have been articulated and filed, the matter will be set down for a leave hearing before a Single Judge in the normal way.

5.I would also invite those representing the applicant to consider the question of sentence in the light of the Court’s most recent decision on sentencing in trafficking cases, namely, HKSAR v Herry Jane Yusuph[4]; in particular, on the question of whether the applicant’s conduct, if proved, can properly be described as that of a ‘courier’ or ‘storekeeper’, to which the relevant guidelines apply, or whether it falls short of that description. 

6.Accordingly, I shall grant the applicant an appeal aid certificate in respect of the applicant’s application for leave to appeal against both conviction and sentence, and make the following orders:

(i)  Perfected Grounds of Appeal against conviction (and sentence out of time, if appropriate, with supporting affirmation/affidavit) are to be filed on behalf of the applicant by 22 February 2021;

(ii)  A written argument in support of leave is to be filed on behalf of the applicant by 22 March 2021;

(iii)  A written argument on behalf of the respondent is to be filed by 9 April 2021;

(iv)  The matter is to be set down for hearing before any Single Judge of the Court of Appeal by 30 April 2021.

Ms Hermina Ng SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person

[1] AB, p 331G-O.

[2] AB, p 332K.

[3] AB, p 333K-L.

[4] HKSAR v Herry Jane Yusuph (Unrep., CACC 93/2019, 26 November 2020).