Ho v The King - [2025] VSCA 150

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0181

THANG MINH HO	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2025
DATE OF JUDGMENT:	30 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 150
JUDGMENT APPEALED FROM:	[2024] VSC 162 (Kaye JA)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of manslaughter – Death at cannabis factory in which applicant previously employed – Applicant pleaded guilty to cultivating commercial quantity of cannabis before jury panel – Deliberateness of stab wound causing death major issue in trial – Whether failure to seek a good character direction in a particular respect as to absence of convictions for violence was rational forensic decision – Whether failure to seek good character in a particular respect direction caused a substantial miscarriage of justice – Application for extension of time in which to seek leave to appeal granted – Leave to appeal granted – Appeal allowed – Retrial ordered.

Evidence Act 2008, s 110; Jury Directions Act 2015, ss 12, 14, 16.

Madafferi v The Queen [2017] VSCA 302; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, followed.
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25; Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32; Saw Wah v The Queen; (2014) 45 VR 440; [2014] VSCA 7, discussed.

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Counsel
Applicant:		Mr P Kounnas
Respondent:		Mr L McAuliffe
Solicitors
Applicant:	Giorgianni & Liang Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
TAYLOR JA
BOYCE JA:

Introduction and overview

The applicant was charged on indictment with one count of cultivating a commercial quantity of cannabis and the manslaughter of Cuong Van Le. On arraignment before the jury panel he pleaded guilty to the cultivation charge. The jury empanelled in the trial convicted him of manslaughter.
The two charges were factually linked. The cannabis was cultivated in a factory in Epping. The applicant had helped to establish the works and thereafter tended some of the plants. Upon ceasing work at the factory, the applicant considered that he had not been properly remunerated. He subsequently took a number of measures to make his displeasure known. On 28 April 2021 the applicant made a phone call to Chuan Nguyen (a senior man in the drug organisation) threatening to destroy the factory before attending the factory in person. Mr Le, who also tended the plants, and Hai Pham, a more senior employee, were present at the factory. The applicant knocked loudly on the roller door. Mr Pham hid. Mr Le went to the glass door adjacent to the roller door holding a knife ordinarily used to tend the cannabis plants. Upon Mr Le opening the glass door the applicant entered and a physical altercation occurred, during which the applicant stabbed Mr Le to the upper left thigh. It was a through and through injury…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ho v The King

Details

AGLC: Ho v The King [2025] VSCA 150
Case: [2025] VSCA 150
Decision Date: 30 June 2025

CaseChat Overview and Summary

The appellant, Ho, was convicted of manslaughter in the Supreme Court of Victoria following an incident at a cannabis factory where he was previously employed. The victim was found with a stab wound which was ultimately fatal. Ho pleaded guilty to cultivating a commercial quantity of cannabis but contested the manslaughter charge. The central issue was the deliberateness of the stab wound that caused the death. Ho's legal team argued that the failure to seek a good character direction in respect of the absence of convictions for violence was not a rational forensic decision and that this omission led to a substantial miscarriage of justice. The court was required to determine whether the failure to seek a good character direction in this respect caused such a miscarriage of justice and whether the decision was rational.

The court granted the application for an extension of time to seek leave to appeal and subsequently granted leave to appeal. The appeal was allowed on the basis that the failure to seek a good character direction in respect of the absence of convictions for violence was not a rational forensic decision and that this omission led to a substantial miscarriage of justice. The court found that the absence of such a direction had a significant impact on the jury's understanding of Ho's character, particularly given the critical nature of the deliberation of the stab wound. The court concluded that the failure to seek the direction was not a rational forensic decision and that it caused a substantial miscarriage of justice. The appeal was therefore allowed and a retrial was ordered.

The court followed the decisions in Madafferi v The Queen and TKWJ v The Queen in determining that the failure to seek a good character direction was not a rational forensic decision. It also discussed the cases of Simic v The Queen, Melbourne v The Queen, and Saw Wah v The Queen in reaching its decision. The final order was that the conviction for manslaughter be quashed, and a retrial be ordered.

Orders