Court of Appeal, constituted of Macrae CJHC (Ag), Zervos JA, and Anthea Pang JA quashed murder conviction of the appellant on the basis of admitted fresh evidence.

The appellant admitted to killing his father (“𝐭𝐡𝐞 𝐃𝐞𝐜𝐞𝐚𝐬𝐞𝐝”) but denied premeditation. He pleaded guilty to manslaughter but not guilty to murder and stood trial before Hon Joseph Yau J. The jury convicted the appellant, and he was sentenced to life imprisonment.

On appeal, the appellant complained, amongst other things, that the appellant did not have a fair trial as the prosecution had put to the appellant that he lied about the deceased had called the appellant the day before the killing (“𝐭𝐡𝐞 𝐌𝐢𝐬𝐬𝐢𝐧𝐠 𝐂𝐚𝐥𝐥”). As a result of that line of cross-examination, the Judge gave a lie direction to the jury. Fresh evidence later confirmed the call did occur, undermining the prosecution’s attack on the appellant’s credibility and raising concerns about the fairness of the trial.

The Court of Appeal held that the allegation that the appellant lied about the Missing Call constituted a material irregularity, as it directly affected his credibility before the jury. The Court of Appeal decided to allow the admission of fresh evidence to allow the Missing Call to be considered on appeal. The Court of Appeal declined to invoke the 𝑝𝑟𝑜𝑣𝑖𝑠𝑜 and ordered the appeal be allowed with the murder conviction quashed and the life sentence set aside.

Simon So appeared as a led-junior with Prof Simon N.M. Young for the Appellant both in obtaining leave to appeal before Hon Zervos JA (leave judgment at [2022] HKCA 1777: https://lnkd.in/gHcwT9u6) and the Full Court before Hon Macrae VP, Zervos, and Anthea Pang JJA (judgment before Full Court at [2025] HKCA 719: https://lnkd.in/gJmeHEnA).