HKSAR v. TAO WAI HONG

CACC 108/2022

[2024] HKCA 141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 108 OF 2022

(ON APPEAL FROM HCCC NO 44 OF 2021)

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J U D G M E N T

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1.  On 13 July 2022, following a trial before Albert Wong J (the judge) and a jury, the applicant was convicted of two counts of trafficking in a dangerous drug, namely 125 grammes of a crystalline solid containing 124 grammes of methamphetamine hydrochloride (commonly known as Ice) (Count 1); and 1,866 grammes of a crystalline solid containing 1,840 grammes of Ice (Count 2).[1] On 14 July 2022, the applicant was sentenced to a total of 23 years and 9 months’ imprisonment.[2]

2.  On 26 July 2022, the applicant filed a notice of application for leave to appeal against conviction.  On 20 October 2022, he was granted legal aid to appeal his conviction.  On 8 November 2022, Mr Chau Ying Chau of Messrs Gallant, solicitors, and Mr Wong Po Wing, of counsel, were assigned to represent the applicant.  However, on 4 January 2023, legal aid was discharged. 

3.  The applicant appeared in person at today’s hearing and applied for an adjournment.  He said that Mr Chau had visited him in prison and informed him that after consideration of his case, legal aid would be discharged.  He then requested his family to arrange funds to commission new lawyers, but they were unable to do so.  He claims he did not receive the appeal papers and wrote to Mr Wong Po Wing about two months ago, requesting he provide the papers to him.  He received no response.  He did not make this request of Mr Chau. 

4.  After legal aid had been discharged, the court issued a direction to the applicant dated 30 January 2023 that he file grounds of appeal and a written submission before 13 February 2023.  He made no response to the court’s direction.

5.  The applicant requests the adjournment in order to obtain a copy of his appeal papers to submit to the Bar Association for legal assistance.

6.  The applicant was notified of today’s leave hearing on 9 March 2023.  He has given no prior notice of an application for an adjournment regarding today’s hearing.  I am not prepared to grant an adjournment.  The applicant has had considerable time to obtain a copy of the appeal papers to consider whether he has any viable grounds of appeal.  It would appear that he has previously received legal advice regarding his appeal, which resulted in the discharge of legal aid.

The prosecution case

7.  In the early evening of 20 January 2020, the applicant was intercepted by Customs officers outside Lee King Industrial Building in San Po Kong.  He was searched and found inside his jacket pocket was a Ziplock bag containing the drugs particularised in Count 1.  Upon arrest and caution, he admitted to being in possession of the Ice, which he referred to as “Pork”, and disclosed the address from where he had obtained the drugs.  He accompanied the Customs officers to the address, of one of eight rooms, Room R67, on the 9^th floor of the Lee King Industrial Building.  The Customs officers found inside the room, two Ziplock bags containing the drugs particularised in Count 2.[3]  He acknowledged it was Ice.

8.  According to the admitted facts, the applicant occupied the room under a licensee agreement dated 16 November 2019 and entry could only be gained by a fingerprint identification on the lock of the outer door of the rooms on the 9^th floor and a key to the room.[4] 

9.  The street value of the drugs at the time of the offence was $1,085,095.[5]

The defence case

10.  The applicant’s defence at trial was that he had no knowledge of the drugs.  He testified that a person called “Ah Ken” gave him the substance and told him it was a new type of stimulant.  “Ah Ken” also told him the effect of using the stimulant.[6]

11.  As for the statements that he made under caution that the drugs found on his person and in the room belonged to him, the applicant complained that he had not been told the content of the post record and was forced to sign it.  He said he was threatened and put in fear.  He was pushed around forcefully and denied access to his lawyer.  He did not make the confessions and had not mentioned that the substance was Ice.[7]

The grounds of appeal

12.  In his notice to apply for leave to appeal against his convictions he complains that the judge was unfair to him.  He does not specify how the judge was unfair, nor does he list any errors or issues relating to trial proceedings to justify the challenge against his convictions.  Notwithstanding having been requested to file perfected grounds of appeal and a written submission in support, he has failed to do so.

13.  As is apparent from the summary of the prosecution and defence cases, the issue at trial was whether the applicant knew of the drugs found on his person and in the room.[8]  The judge gave a very comprehensive overview of the evidence and the issues at trial and correctly directed them on the law.  He repeatedly reminded them that if they found the applicant’s evidence to be true or may be true, they had to consider the issue on the basis of the evidence in the applicant’s favour.  He fully explained the defence case regarding the confessions made under caution and gave the jury the standard directions in the approach they should take in considering whether they were true and reliable.[9]

14.  Whilst the applicant has not raised any grounds of appeal, I have examined the judge’s summing-up and was unable to find any error or issue that would warrant consideration by the Court of Appeal.  The judge gave the required standard directions with appropriate emphasis or remarks regarding the issues under consideration.  In my opinion, the summing-up was impeccably fair and balanced.  It was also comprehensive in its summary of the evidence and distillation of the issues.[10]

Conclusion

15.  There is no basis on which to grant leave to the applicant to appeal against his convictions.  Accordingly, the applicant’s leave application is refused.

16.  I remind the applicant that he has the right to renew his application for leave to appeal against his convictions to the Court of Appeal.  However, he is informed, if he does so, that the Court of Appeal has the power to order the loss of any time that he has spent in custody pending his appeal, if the Court were to come to the conclusion that there was no justification for the renewal of this application.

[1]  Appeal Bundle (AB), 1-2 and 79-80.

[2]  AB, 8.

[3]  AB, 13G-S.

[4]  AB, 10-11, at [4]-[7].

[5]  AB, 11, at [12].

[6]  AB, 13T-14D.

[7]  AB, 14E-L.

[8]  AB, 18Q-19L.

[9]  AB, 25A-K, 26H-27N, 30J-36T, and 61B-66I.

[10]  AB, 68I-75I.