HKSAR v. Tang Wing Hei

CACC106/2023

[2025] HKCA 379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 106 OF 2023

(ON APPEAL FROM HCCC NO 116 OF 2021)

_______________

_______________

________________

J U D G M E N T

________________

1.On 18 October 2022, following a trial before Toh J (the judge) and a jury, the applicant was convicted of a single count of conspiracy to manufacture a dangerous drug, namely cocaine. It was alleged that he conspired with Yip Tsz Chung (Yip) and Kam Mei Yan (Kam) to commit the offence between 9 July and 11 September 2019. Yip and Kam had pleaded guilty to the conspiracy count, and Kam testified against the applicant at his trial.

2.On 17 May 2023, the applicant was sentenced to 25 years’ imprisonment.  Yip was sentenced to 16 years and 8 months’ imprisonment after receiving a one third discount for his guilty plea.  Kam was sentenced to 12 years and 6 months’ imprisonment after receiving a 50% discount for the assistance she rendered to the authorities by testifying at the trial against the applicant.

3.On 7 June 2023, the applicant filed a notice of application for leave to appeal against his conviction.  In his home-made grounds of appeal, the applicant complains that (i) the testimony of Kam was “untruthful and fake”; (ii) the prosecution failed to call Yip as a witness, who was privy to the case; (iii) his counsel ignored his request to have Yip testify in court because he considered it “unnecessary”; and (iv) the trial was “unfair and unjust”.

4.The hearing of this leave application has been inordinately delayed because of the applicant’s numerous attempts to secure legal assistance.  He was refused legal aid on 28 August 2023, 8 May 2024 and 22 July 2024.  He applied for legal assistance to the Bar Free Legal Service Scheme.  In a letter dated 29 July 2024, the Bar Free Legal Service put on the record that the applicant had been advised about the matter on 8 December 2023 and 22 January 2024, but had made no further contact with them.  Accordingly, the Bar Free Legal Service regarded that he no longer required their assistance.

5.On 11 September 2019, Yip and Kam were intercepted by police officers in the lobby of the Intercontinental Grand Stanford Hotel.  In their possession was a white suitcase, containing 43 packets of cocaine and apparatus used for the manufacturing of cocaine.  Kam had checked into Room 701 of the hotel.  A search of the room uncovered tissues and two cartons, containing traces of cocaine.  The prosecution case against the applicant rested upon the accomplice evidence of Kam.  She testified that the applicant was the mastermind of the drug manufacturing operation.  She explained that her role was to do the manufacturing of the “crack” cocaine together with Yip, who was her boyfriend, in the hotel room.  The applicant paid for all the expenses and rewarded Yip and Kam with a sum of $20,000 or $30,000 after each occasion they manufactured drugs.  The applicant had come to the hotel to inspect the manufactured product.  The prosecution presented circumstantial evidence of the applicant’s involvement in the offence, including CCTV footage of the applicant’s arrival at the hotel on the day in question and text messages between Yip and the applicant, setting out a breakdown of expenses.

6.The applicant at trial elected not to give evidence and did not call any witnesses on his behalf.  It was defence case that the applicant was not involved in a conspiracy with Yip and Kam to manufacture cocaine and that Kam was not telling the truth, who was seeking to frame the applicant because she owed him $60,000 due to gambling.

7.The applicant’s main complaint against his conviction is that his counsel at trial refused to call Yip as a witness for the defence.  He is, therefore, challenging the competency of his counsel in representing him at his trial.  It is recognised that trial counsel have a wide discretion in the conduct of a criminal case on behalf of an accused and that in the course of conducting the trial tactical decisions are made in the interests of the defence case: Chong Ching Yuen v HKSAR [1]; HKSAR v Li Xiaoxiang [2].

8.As already noted, Yip was an accomplice of the applicant in the manufacturing of cocaine.  Yip pleaded guilty to the same charge that the applicant faced at trial, where it was alleged that Yip conspired with the applicant and Kam to manufacture a dangerous drug.  When Yip entered his plea of guilty, he agreed a summary of facts in which he implicated the applicant in manufacturing cocaine.  It is therefore perfectly understandable why counsel did not call Yip as a defence witness in those circumstances.  The applicant would have appreciated this and he is only raising this point now in order to find some matter to complain about his conviction.

9.The applicant also complains that his trial was unfair because Kam gave untruthful evidence.  The case against the applicant was that he was the mastermind of the manufacturing operation, and he had arranged for Kam and Yip to manufacture the cocaine in the hotel room.  She testified at the applicant’s trial, having pleaded guilty to the conspiracy charge that the applicant faced.  The defence case critically challenged Kam’s evidence and her credibility and this was the main issue at trial.  The judge duly summarised the defence case and appropriately directed the jury to consider the nature and status of Kam’s evidence as an accomplice, serving her own interests by seeking a reduction to her sentence.  The jury, by its unanimous verdict, clearly accepted Kam as a witness of truth.

10.The applicant raised further grounds of appeal at the hearing of his application.  No prior notice had been given about these complaints.  The first complaint was that the trial judge criticised the views of defence counsel, which was prejudicial to the defence case.  He referred to page 16G-H of the summing-up, where the judge merely corrected defence counsel’s submission that text messages were hearsay when there was direct evidence from Kam about these messages. 

11.The second complaint was that the judge expressed her personal views in the summing-up and failed to be impartial.  He referred to three passages in the judge’s summing-up.  First, at page 25O-S, the judge gives the standard direction on speculation and provides an example about there being more than one set of car keys of a vehicle which the applicant allegedly drove.  Secondly, at page 36S, the judge does no more than highlight the defence challenge to Kam’s credibility that she was worried about herself and her future and Yip.  Thirdly, at page 37B, the judge noted that Kam had said one thing in her video recorded interview and another in her first non-prejudicial statements to the police.  There is nothing in these passages that reflects personal views expressed by the judge or that she acted impartially.

12.The applicant’s third complaint is that the verdict was not balanced.  No particulars were provided in support of this complaint.  The jury were unanimous in their verdict, and no fault can be found with the judge’s summing-up.

13.There is no merit in the applicant’s complaints regarding his conviction.  The application for leave to appeal against conviction must be refused. 

14.It remains for me to remind the applicant that he has the right to renew his application for leave to the Court of Appeal, but he is also informed that if the Court comes to the view that there was no justification for the renewal of the application, it has the power to order loss of any time which the applicant had spent in custody pending his appeal.

15.During the hearing, the applicant stated that he wished to apply for leave to appeal against sentence.  In his Form XI dated 7 June 2023, the applicant deleted an application for leave to appeal against sentence.  He claimed he was raising the matter because of new guidelines issued by this Court.  The new guidelines concern the offence of trafficking in large quantities of a dangerous drug : HKSAR v Huang Ruifang [3].

Ms Noelle A Chit, SPP, of Department of Justice, for the respondent

The applicant appeared in person

[1]  Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126.

[2]  HKSAR v Li Xiaoxiang (2018) 21 HKCFAR 272.

[3]  HKSAR v Huang Ruifang, unrep., CACC 106/2022, 5 March 2025.