Soo Chun Sou, Dominic v. Hong Kong Special Administrative Region

FAMC No. 7 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 7 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 262 OF 2008)

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Between:

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1.The applicant was convicted of murder after trial by a judge (V Bokhary J) and jury. The prosecution case was that he had killed his girl friend out of jealousy after having had a dinner with her in Lau Fau Shan one evening. There was no direct evidence that he killed her and the case against him was entirely based on circumstantial evidence. The applicant, who had no previous criminal conviction, did not give or call any evidence, although he had made various statements to the police denying knowledge of where the girl was after they had had dinner together and he had dropped her off in Lau Fau Shan.

2.On appeal, the Court of Appeal (Stock VP, Cheung JA and McMahon J) held that the trial judge, having given a good character direction on propensity, should also have given a good character direction on credibility. However, the court applied the proviso and dismissed the appeal.

3.Plainly there is no rule that the proviso is inapplicable where there is a failure to give such a direction and Mr Bruce SC for the applicant did not suggest the contrary.

4.Mr Bruce submits that the Court of Appeal in applying the proviso, had wrongly placed weight on the unanimity of the jury’s verdict. In our view, the Court of Appeal did not do so. They had come to a view on the basis of the evidence and unanimity of the verdict was mentioned as being consistent with their view.

5.The essential question is whether it is reasonably arguable that there has been substantial and grave injustice on the ground that the Court of Appeal was wrong to apply the proviso.

6.The jury were well aware that the case was based on circumstantial evidence and they were properly directed on how to approach such evidence. The Court of Appeal applying the test in Launder v HKSAR (2001) 4 HKCFAR 457, concluded that considering all the evidence, a hypothetical reasonable jury, properly directed, would inevitably convict. Mr Bruce has said all that could be said on behalf of the applicant. But we are not satisfied that it is reasonably arguable that the Court of Appeal was wrong in coming to such a conclusion.

7.Accordingly, the application for leave is dismissed.

Mr Andrew Bruce, SC and Mr Hanif Mohamed Mughal (instructed by Messrs Paul W Tse) for the Applicant

Mr Wesley W C Wong and Mr Jonathan Man (of the Department of Justice) for the Respondent