The Department of Justice decided almost 10 years ago it no longer had enough evidence to prosecute fugitive Oriental Daily News co-founder Ma Sik-chun on drug charges, it emerged yesterday as a judge refused to revoke an arrest warrant issued more than 30 years ago.
If Ma did return from Taiwan to Hong Kong to fulfil his dying wish, the department would apply to offer no evidence, the Court of First Instance heard.
But Mr Justice Andrew Chan Hing-wai refused Ma's application to revoke the warrant, saying it had nothing to do with the evidence.
The department said in a statement later that it had told Ma's lawyers in 2005 it had decided it no longer had enough evidence because witnesses had died, their memories had deteriorated or they were unwilling to co-operate.
Barrister and lawmaker Ronny Tong Ka-wah said the statement shocked him because it looked as though the department backed the application.
The court heard that Ma also could not be charged with jumping bail as he had fled in the 1970s and a law making this an offence did not take effect until 1994.
The warrant was issued on September 25, 1978 after Ma fled before a scheduled hearing of charges of conspiracy to deal in opium and salts of morphine between 1967 and 1973. A magistrate had granted him bail of HK$500,000 cash plus two sureties totalling HK$1 million.
Yesterday, Mr Justice Chan said that in discharging a warrant the court's concern was whether a defendant charged with an indictable offence was at large. It was not required to examine the evidence. He also ruled that the question of whether the lapse of time had weakened the evidence was a matter for the director of public prosecutions to explain.
Barrister Peter Duncan SC, for the Department of Justice, told the court the case was 36 years old and if Ma did return the prosecution would apply to offer no evidence and the court would decide whether to acquit him.
But even though Ma was certain to be acquitted, it did not mean his warrant should be discharged, as it would send a wrong message to the public.
In a statement yesterday evening, the department elaborated that its conclusion in 2005 was "based on the consideration that the relevant witnesses had passed away, were unable to recall the relevant events due to long lapse of time or old age, or were unwilling to co-operate".
Secretary for Justice Rimsky Yuen Kwok-keung said the department had not "collaborated" with any party before reaching the decision.
Barrister Gerard McCoy SC, for Ma, said jumping bail was not a criminal offence until the law came into effect in 1994. Thus, the prosecution could not charge Ma with failing to appear at a trial as he had fled in the 1970s.
He said Ma suffered from heart disease and had required resuscitation three times. He was confined to a wheelchair and had to wear an oxygen mask.
"Ma's dying wish is to return to Hong Kong," the lawyer said. "There is no reasonable case to be made to arrest a person who is certain to be acquitted."