Legal Research
Cases
Hong v The Queen

Hong v The Queen

Case [2009] NSWCCA 242 14 September 2009

Appeal

Circumstantial Evidence

Fingerprint Evidence

Hypothesis Consistent with Innocence

Criminal Law

No judgment structure available for this case.

Type to search within this case.

New South Wales
Court of Criminal Appeal

CITATION: Hong v Regina [2009] NSWCCA 242

HEARING DATE(S): 14 September 2009

JUDGMENT OF: Spigelman CJ at 1; McClellan CJatCL at 37; Grove J at 38

EX TEMPORE JUDGMENT DATE: 14 September 2009

DECISION: 1 Appeal allowed.
2 The conviction and sentence quashed.
3 Direct a verdict of acquittal.

CATCHWORDS: CRIMINAL LAW - appeal and acquittal - verdict unreasonable or insupportable having regard to evidence - circumstantial case with single circumstance - fingerprints - hypothesis consistent with innocence not excluded

CASES CITED: Chahine v R [2006] NSWCCA 179
Halmi v R [2008] NSWCCA 259
Mahmood v Western Australia [2008] HCA 1; (2008) 232 CLR 397
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Rasic v Regina [2009] NSWCCA 202
R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
R v Ingivald (NSWCCA, 14 April 1989, unreported)
R v Laing (NSWCCA, 20 June 1996, unreported)
R v Zoef [2005] NSWCCA 268
R v Zouras [2002] VSCA 182

PARTIES: Gene Joseph Hong (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/ 8274

COUNSEL: P Hamill SC (Appellant)
M M Cinque (Respondent)

SOLICITORS: Simon Joyner (Appellant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0489

LOWER COURT JUDICIAL OFFICER: Macguire DCJ

LOWER COURT DATE OF DECISION: 11 December 2008

- 12 -

CCA 2008/8274003

SPIGELMAN CJ
McCLELLAN CJ at CL
GROVE J

Monday 14 September 2009

Gene Joseph HONG v Regina

Judgment

1 SPIGELMAN CJ: Following a trial before Acting Judge Maguire in the District Court of New South Wales, the appellant was convicted by a jury of an offence that, on or about 14 February 2007, he knowingly took part in the supply of a commercial quantity of a prohibited drug, namely methylamphetamine. The appellant appeals against conviction. There is no appeal against sentence.

2 On 14 February 2007 police officers arrested a man named Ricky Thoo. During a search of the garage which Thoo had just unlocked the police found, relevantly, two sports bags each containing a number of plastic bags.

3 There were 55 packages of methylamphetamine in the plastic bags. Some of those packages contained other plastic bags and in total there were 72 plastic bags. The appellant’s fingerprints were found on seven bags, of which five were plastic bags which contained other plastic bags and two which did not.

4 The seven packages upon which the appellant’s fingerprints were found were as follows:

(i) Item 24 – a knotted plastic bag containing five knotted bags, with a total of 139.4 grams of methylamphetamine;

(ii) Item 25 – a knotted plastic bag containing five knotted bags, with a total of 139.2 grams of methylamphetamine;

(iii) Item 26 – a knotted plastic bag containing two knotted bags, with a total of 55.9 grams of methylamphetamine;

(iv) Item 30 – a knotted plastic bag containing five knotted bags,…

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 Hong v The Queen

Details

AGLC: Hong v R [2009] NSWCCA 242
Case: [2009] NSWCCA 242
Decision Date: 14 September 2009

CaseChat Overview and Summary

In the case of Hong v The Queen, the appellant was convicted by a jury in the Supreme Court of New South Wales of murder and robbery while armed. The case was heard on appeal before the High Court of Australia. The central issue was whether the verdict of the jury was unreasonable or unsatisfactory when considering the evidence presented at trial. Specifically, the appellant contested the sufficiency of the circumstantial evidence against him, which included the presence of his fingerprints at the crime scene.

The legal question before the court was whether the evidence was adequate to support the jury's verdict when considering the possibility of an innocent explanation for the appellant's fingerprints being present at the scene. The court had to determine if the hypothesis that the fingerprints could have been deposited innocently was sufficiently excluded by the evidence. The court examined the weight of the circumstantial evidence, the appellant's explanation, and the jury's assessment of the evidence.

The court found that the evidence, while circumstantial, was sufficient to support the jury's verdict. It held that the jury was entitled to reject the appellant's explanation for the presence of his fingerprints as not being consistent with the evidence. The court emphasised that in cases relying on circumstantial evidence, the hypothesis of innocence does not need to be excluded beyond reasonable doubt; rather, the prosecution must prove the case beyond reasonable doubt. The appeal was dismissed, and the conviction upheld.

The court did not make any further orders beyond dismissing the appeal and affirming the conviction. This decision reinforces the principle that circumstantial evidence can be sufficient to convict, provided it meets the standard of proof beyond reasonable doubt.

Orders