HKSAR v. Butt Ummar

CACC 324/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 324 OF 2016

(ON APPEAL FROM DCCC NO 458 OF 2016)

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Before: Hon Macrae JA in Court

Date of Hearing: 12 April 2017

Date of Judgment: 12 April 2017

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J U D G M E N T

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1.The applicant pleaded not guilty in the District Court to a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (Charge 1), a charge of resisting police officers in the execution of their duties, contrary to section 63 of the Police Force Ordinance, Cap 232 (Charge 2), and a charge of possession of a dangerous drug, namely 0.12 gramme of a crystalline solid containing methamphetamine hydrochloride (commonly known as “Ice”), contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (Charge 3). On 11 October 2016, following a trial before Deputy Judge Chainrai (“the judge”), the applicant was convicted of all offences as charged.

2.By way of a Notice of Application for leave to appeal (“Form XI”) filed on 18 October 2016, the applicant seeks leave to appeal against conviction only.

The prosecution case

3.The burgled premises (“the Premises”) were domestic premises situated at Room B2, 2^nd floor, No 9 Wing Lung Street, Cheung Sha Wan, Kowloon, as particularised in Charge 1.  The Premises were a sub-divided unit within Flat B on the 2^nd floor.  Mr Lee (PW3) was the tenant of the Premises, which he had secured before leaving on the morning of 31 March 2016.

4.On the same day, at around 1:15 pm, two police officers in plain clothes (PW1[1] and PW2[2]) were patrolling the above location.  Upon seeing prizing marks on the door to the Premises, which was half open, and a man (later known as the applicant) appearing to be ransacking the bed inside, they produced their warrant cards and asked the applicant in Cantonese “Police. What are you doing?”.  Without giving any reply, the applicant rushed towards PW1, pushing him away at his chest with both hands in order to flee.  PW1 immediately grabbed him by his right arm but his hold was flung off by the applicant.  The applicant kept struggling and resisting, but was eventually subdued by both police officers.

5.PW1 sustained minor injuries to his fingers for which he was subsequently treated at Caritas Medical Centre.

6.Upon a search of the applicant’s person, the officers found a silver coloured crowbar (Exhibit P2) tucked into the back of the denim jeans which the applicant was wearing.  The applicant was subsequently searched again after being taken to the police station and, on this occasion, a re-sealable plastic bag containing a dangerous drug, the subject matter of Charge 3, was found in the front flap pocket of his jeans.

7.PW3 had returned to the Premises at 2:40 pm, after being informed by the police of the incident through a telephone message.  He confirmed that the Premises had been ransacked, albeit nothing appeared to have gone missing.  He found, however, that some paper bags, a hairdryer and a packet of cigarettes had been removed from one place to another.

8.For the purpose of the applicant’s complaint in this application, it is relevant to note that it was an admitted fact that Exhibit P2 was not examined for the presence of fingerprints or DNA[3].

The defence case

9.The applicant availed himself of his right to give evidence.  His defence was that he had committed none of the offences in question and that he had been framed up by the police officers.

10.He testified that, rather than going to burgle the Premises on the 2^nd floor, he had gone to a different unit on the 5^th floor of the same building, where a friend by the name of Ah Wah lived.  He had gone there to find Ah Wah in order to collect a debt of HK$2,000; but Ah Wah was not at home.  On being informed by someone that Ah Wah had only just left some 5 or 10 minutes earlier, and thinking that he would be returning soon, the applicant remained on the 5^th floor, waiting on a balcony.  While doing so, the cork of a bottle accidentally fell and landed on the street where PW1 and PW2 happened to be standing.  The applicant then called down to apologise and asked the officers (in Cantonese) whether they were hurt.  However, they did not respond to his question, but instead entered the building and walked up the stairs while the applicant was walking down.  At the landing between the 1^stand 2^nd floors, the applicant met the two police officers, who asked him what he was doing there.

11.The applicant went on to testify that, in the course of the interrogation which followed, one police officer pushed him and he fell back hitting his head against the wall, causing him to feel dizzy and fall to the ground.  Then, in lifting the applicant off the floor, one of the police officers injured his hand through his own carelessness.  It was for that reason that the applicant was falsely accused of assaulting the police officers. The applicant said that he had no idea from where the police officers obtained the “Ice”, which they claimed was subsequently searched from his person.  The applicant also denied that Exhibit P2 was found on him.  He said that, at the police station, he told the Duty Officer that he was being framed, that he did not see where PW1 had obtained Exhibit P2 from and that the item should be checked for (the absence of) his fingerprints and DNA.  The Duty Officer replied ‘We will check, we will check’.

The parties’ closing submissions

12.In his written closing submissions served on the court and the prosecution, defence counsel for the applicant at trial, submitted that “it is conceded that if the crowbar P2 was handled by persons not wearing gloves then it would be unlikely that any DNA or fingerprints could be found … However the hairdryer on the bed of PW3, photo 12 of P1 is wholly different”[4].  Defence counsel also contended that “it was incumbent upon the prosecution to call the Duty Officer in rebuttal”.[5]

13.Noting that the above points were to be made in submission, prosecuting counsel said in his closing speech:[6]

“…the point is made by the defendant that no fingerprint or DNA was found on the crowbar, P2, and Admitted Facts - which I have abbreviated as “AF” - No 6 shows that P2 was never examined. The allegation that the DO, duty officer, agreed that it would be examined, presumably in the presence of PW1 and PW2, was not put to PW1 and PW2, and PW2 described the defendant as emotional and talking in a language that could not be understood, and in fact the defendant admits to being able to speak Punti.

And I just add this comment, if I may, that it’s not for the duty officer to decide -- even if something like that was said, it’s not for the duty officer to decide what is examined and what is not.  Thus this point, though not giving weight to the prosecution case, likewise does not assist the defence.”

14.In response, defence counsel said in his closing address:[7]

“I accept the fact that if in fact the crowbar had been handled by a number of persons not wearing gloves, then it’s no point in trying to lift fingerprints or DNA, because it could have all been mixed in, and that wouldn’t be practical.

But the hairdryer is a different matter, because PW3 says, “That hairdryer on the bed, when I left this morning, that was hanging in that bag upon a peg on the side of the bed there,” so therefore the inference is that the person who had entered the premises had taken it down and touched it. It would involve a touching. That’s the thing that could have been seized and tested for fingerprints and DNA, and that would have been a significant matter - feature of evidence in the case - but it wasn’t done. And there has been no explanation that it wasn’t done, but it wasn’t done.

Now, the matter of the defendant’s alleged outburst to the duty officer - he says that he protested very loudly when the police suddenly produced the crowbar and the packet of drugs and told the duty officer they were found on him. He says he protested about that. Well, I suggest that in a serious criminal case like this, it would be incumbent upon the prosecution to call the duty officer in rebuttal and say “No such thing ever happened, and if it did, I would have noted it in the computer,” as they are required to do.”

Reasons for verdict

15.The judge acknowledged that the case turned on the credibility of the witnesses.  In that respect, she found PW1, PW2 and PW3 to be credible and truthful witnesses[8].

16.The judge noted that there were some minor discrepancies between the evidence of PW1 and PW2 but she found them to be immaterial.[9]  The judge also accepted the evidence of PW3, inter alia, that he had securely locked the Premises before he left that morning, and that the Premises had indeed been burgled[10].

17.On the other hand, the judge found the applicant to be evasive in giving evidence and his account incredible.  Of the circumstances leading to the applicant lending HK$2,000 to Ah Wah, the judge found his evidence inherently improbable[11].

18.Regarding the absence of any fingerprints and DNA lifted from Exhibit P2, the judge said[12]:

“(Defence counsel) accepted that as Exhibit P2 the crowbar had been handled by persons not wearing gloves, it was unlikely that any DNA or fingerprints could be lifted. However, the hairdryer found on the bed as depicted in photo 12 of Exhibit P1 should have been (examined). It had been moved onto the bed so it must have been touched. The same could be said for the cigarette packet on the bed next to the hairdryer. Whether the hairdryer was examined for fingerprints or DNA was not put to any of the Prosecution witnesses. I found nothing in that submission in respect of the hairdryer not having been examined for fingerprints or DNA.”

Ground of appeal against conviction

19.In his homemade grounds of appeal set out in his Form XI, the applicant complains that his convictions were supported neither by fingerprint evidence nor any DNA report.  As we have seen, this was effectively the same complaint advanced on his behalf by his counsel at trial.

20.On 4 January 2017, the applicant filed with this Court an undated letter, in which he recited his defence case at trial and repeated his complaint in respect of the purported failure on the part of the police to obtain fingerprint and DNA analysis.  Before me today, he has further queried the address particularised in Charge 1, as compared with the address referred to by the judge in her Reasons for Verdict, and asserted that such an address does not in fact exist.  He has also made submissions concerning the finding of the crowbar on his person, which he denies.  In making this latter point, the applicant has repeated the submissions made on his behalf in the court below.

Respondent’s submissions

21.Ms Chan Sze Yan, on behalf of the respondent, argues that defence counsel at trial had rightly accepted that it was unlikely that any fingerprints or DNA could be found on Exhibit P2, and that the complaint in relation to the alleged non-seizure of the hairdryer for fingerprints and DNA examination was rightly rejected after consideration by the judge.

22.Ms Chan further submits that this Court has repeatedly held that the absence of fingerprint evidence is a neutral factor: see HKSAR v Law Wing Hong (unrep., CACC 169/1998, 11 November 1998), at p 8; HKSAR v Pham Thi Nga (unrep., CACC 224/2011, 16 July 2012), at para 40.  The same has been said of DNA evidence: see HKSAR v Tsuchiya Koji (unrep., CACC 121/2014, 7 August 2015), at para 31.

23.Ms Chan submits that there was nothing in the present case to show that the police had destroyed or deliberately failed to obtain evidence favourable to the applicant.

24.As for the complaint about the non-existent address in Charge 1, Ms Chan says that the precise description of the address is immaterial.  In any event, the particularised address is correct.  The fact is that the premises described in the charge were a sub-divided unit of a flat on the 2^nd floor of No 9 Wing Lung Street in Cheung Sha Wan, tenanted by PW3; and it was those premises which were found to have been burgled.  She points out that there was never any issue about the address at the trial.

Consideration

25.This case depended on the credibility of the various witnesses; in particular, the prosecution witnesses.  The judge very carefully evaluated the evidence and the arguments presented by counsel on the applicant’s behalf at trial, many of which have been repeated before me today. She accepted that there were discrepancies between PW1 and PW2’s testimony but such discrepancies were minor and did not cause her to doubt the essential truthfulness of the witnesses.  She also dealt with the complaint concerning the non-calling of the Duty Officer by the prosecution.

26.As for the applicant’s evidence, the judge dealt extensively with his account before rejecting it.  I can at this stage see nothing to impugn that evaluation.  The applicant has nevertheless sought to re-argue matters of fact which were canvassed and dealt with at the trial.  I can see nothing in them that would afford a reasonably arguable ground of appeal against conviction.

27.The appellate courts have long held that they will act with the greatest caution before interfering with a judge’s findings as to fact and credibility, where the trial judge has had the advantage of hearing and seeing the witnesses.  Appellate courts do not have that advantage.  As the Court in R v Li Chun Yue (unrep., Criminal Appeal No 240/1996, 9 October 1996) put it, in its concluding paragraph:

“In substance, this Court is asked to substitute its own evaluation of the witnesses and the evidence from a careful reading of the transcript, for that of the judge who heard and saw the witnesses at trial. This is not an exercise that this Court can undertake unless it is shown that the judge in some way failed in his duty. We must ask, has the judge’s evaluation been shown to be absent, irrelevant, lacking, careless or flawed in any substantial way?”

28.Applying that test, I do not see any reasonably arguable ground of appeal in respect of the judge’s evaluation of the facts or credibility of witnesses in this case.  The application for leave to appeal against conviction is, accordingly, refused.

29.I duly advise the applicant that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

Ms Chan Sze Yan SPP (Ag), of the Department of Justice, for the Respondent

The Applicant appeared in person