HKSAR v. Qaiser Muhammad

DCCC 81/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 81 OF 2017

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REASONS FOR VERDICT

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1.The defendant pleaded not guilty to one offence of criminal damage, contrary to section 60(1) of the Crimes Ordinance.

2.It is the prosecution’s allegation that, at about 00:50 am on 30 March 2016, the defendant, together with other unknown males, without lawful excuse, damaged five tables, 20 glasses and one door being property belonging to another, intending to damage such property, at Bar Pacific, Ground Floor, Regal Riverside Hotel, No 34-36 Tai Chung Kiu Road, Sha Tin (“the Bar”).  At the time of the offence, they were wearing gloves and used metal bar and hammers to smash the subject properties.

3.As revealed in the way in which the prosecution witnesses were cross-examined and the defence case, I note that the main issue in this case is whether the defendant was one of the culprits.  The defence also adduced alibi evidence to show that the defendant was with his wife at the time of the offence.

4.The prosecution mainly relies on the DNA found on the inside surfaces of one of the gloves discovered in the bushes along Yuen Chau Kok Road containing a match to the defendant’s DNA and the evidence of both PC14267 (PW2) and Mr Lee Chun Pun (PW3), a taxi driver, that one of the four males involved in the incident was a South-Asian male to prove that the defendant was one of the culprits.

Prosecution case

5.The prosecution called five witnesses and produced in evidence Exhibits P1 to P13.  The facts admitted by both the prosecution and defence mainly showed that:-

i. Ms So Tsz Ling (PW1) is the store manager of the Bar. At about 00:50 am on 30 March 2016, four males entered the bar and smashed the properties in question before escaping and running towards Yuen Chau Kok Road;

ii. at about 01:05 am on the same day, PC14267 led the police officers to the bushes situated along Yuen Chau Kok Road near Kong Pui Street;

iii. at about 02:05 am on the same day, DPC8278 (PW4) arrived at the scene for investigation. At 02:10 am, he took a total of 24 photographs which captured both the scene at the Bar after the incident and also the positions of Yuen Chau Kok Road, where two surgical masks[P1], two pairs of gloves[P2], two hammers[P3] and one metal pipe[P4] were found. At 02:25 am, he seized the said exhibits outside Yuen Chau Kok Park, along Yuen Chau Kok Road. At 02:30 am, he drew a sketch of the location of the incident and the positions where the said exhibits were found;

iv. on 1 April 2016, the said exhibits, that is, P1 to 4, were delivered to Ms Yeung Sze Mang (PW5) at the government laboratory for DNA examination. Human DNA was found on one of the gloves which had originated from an unknown male source. The unknown male person was denoted as “Unk1”;

vi. at 12:44 am on 22 August 2016, the defendant was arrested upon a stop and search;

vii. on 25 August 2016, two buccal swab samples taken from the defendant, each labelled with a barcode number “AA519735”, were delivered to Yeung Wing Shan at the government laboratory for examination and were assigned unique references numbers 16DD2811 and 16DD2812. The purpose of examination was to establish the defendant’s buccal swab samples for comparison with DNA typing results obtained from P1, 2 and 3;

viii. comparisons of the DNA typing results showed that AA519735, that is, 16DD2811-2812, could have been the unknown male DNA source who has been denoted as Unk 1;

ix. The incident lasted about 20 seconds and was captured by the CCTV footages;

x. Defendant is a Form 8 recognizance holder; and

xi. the subject properties were insured and repair costs were around $20,000.

Ms So Tsz Ling (PW1)

6.At about 00:50 am on 30 March 2016, there were only a few customers inside the Bar.  Ms So was on duty and saw a man entering the Bar, who then waved his hand behind towards the back.  Following that, three men wearing caps and face masks, holding hard objects like metal pipe, hammers and so forth, came in. They used the hard objects to hit the glass tables and sweep the drinking glasses from the tabletops, which shattered into pieces and broke when they hit the ground.  One of those four males also smashed one of the front doors as they were leaving the Bar.  The four males fled in the right-hand side direction towards the petrol station.  The incident lasted about 20 seconds. 

7.CCTV footages were shown to her and it was her testimony that the four males were wearing gloves during the incident.

PC14267 (PW2)

8.About 00:55 am on the same day, he was off duty and was at the Caltex Petrol Station situated at Sha Tin Wai, filling his car with petrol.  He then drove along Yuen Chau Kok Road in the direction of Tai Chung Kiu Road to go home. 

9.Upon reaching Lui Ming Choi Primary School, he saw four men running along Yuen Chau Kok Road towards the Caltex Petrol Station.  One of them looked like a South-Asian male.  Some of those males were holding long stick objects. And they threw the same into the bushes along Yuen Chau Kok Road.  Two to three of them also removed their masks and threw the face masks into those bushes.  All four of them eventually boarded a taxi and the taxi drove off in the direction of the Caltex Petrol Station.

10.PC14267 then went to have a look at the position where those men threw things away.  He found two face masks, a metal pipe and two pairs of gloves at the respective positions as marked by him in the sketch [P9]. 

11.Later, a police vehicle arrived at the scene.  When he was walking over to the police vehicle, he noticed that the door of the bar was smashed.  He told the police who attended the scene as to what he saw and also led them to the positions where the said exhibits were found.

Mr Lee Chun Pun (PW3)

12.He was at the material time the nightshift driver of a taxi with registration no KE5666.  At about 01:00 am on 30 March 2016, he reached Yuen Chau Kok Road opposite Lui Ming Choi Primary School and stopped there for a Chinese man, aged about 25, who was wearing a short-sleeves T-shirt, long pants and holding a white mobile phone, to get in his taxi.  P10 was the sketch marked by Mr Lee.

13.After boarding the taxi, that Chinese male told Mr Lee to wait for a while for his friends and that he wanted to go to Kowloon.

14.After waiting for about five minutes, that Chinese male alighted the taxi and four males boarded the taxi.  They asked Mr Lee to take them to Mong Kok.  One of them was a South-Asian male, while the others were Chinese.  Only the front seat passenger was wearing a mask.  Mr Lee did not think any of them was wearing gloves and the only objects he saw in their hands were at most mobile phones.

15.During the journey, there were some conversations among the four males about asking for cigarettes and where in Mong Kok they were heading.  The journey last about 20 to 25 minutes.

DPC8278 (PW4)

16.He marked the sketch P11A and B to indicate the respective locations including the position as to where the exhibits were found as depicted in their respective photographs.

Ms Yeung Sze Mang (PW5)

17.Ms Yeung Sze Mang (PW5) is the forensic scientist of the government laboratory and her witness statements P12A to B were admitted under section 65B of the Criminal Procedure Ordinance, Cap 221.

18.Her expertise is not in dispute.  She was mainly tendered for cross-examination by the defence.

19.Her evidence under cross-examination showed that the reason as to why no DNA was found on the other glove was that there might not be enough epithelial cells deposited on the other glove or the other glove might not have been used. 

20.Her statement in P12B, that “the DNA typing results which are shown in the donor sample could have been the unknown DNA source denoted Unk 1” was an operative statement and “could have” meant another person in the world could have the identical DNA profiles.  She could not exclude the possibility that she could find another person who had the same DNA profiles.  Such a possibility was calculated based on the population database for Pakistani population published in scientific journal and, stated in P12B, that is, the random matching possibility at 293 quintillion to 1.

21.At the close of the prosecution case, I ruled that there was a case to answer in respect of the charge against the defendant.

Defence case

22.The defendant, through Mr Mughal, informed the court that he understood his right and elected not to give evidence.  No adverse inference is drawn against the defendant for his election of not giving evidence.

23.The defendant called his wife, Madam Lai Wan Yin, to give alibi evidence on his behalf. 

24.Exhibits D1 to D4A were produced in evidence.

Madam Lai Wan Yin (DW1)

25.Madam Lai, aged 40, was locally born.  She met the defendant on 2 February 2012 and was aware of the defendant’s status as a Form 8 recognizance holder.  They then started a relationship and got married on 18 August 2013. They have been living together at a public housing unit in Lei Muk Shue since marriage.

26.Madam Lai has been running a sole proprietorship called Nail Garden, providing nail management services, both pedicure and manicure, since 2008. Her nail salon is situated at Room 504, Luk Yu Building, Stanley Street, Central.  Her normal working hours are from 11 am to 8 pm.  She hires a staff member to help her at the nail salon. 

27.There would, however, be occasions for her to work late as her nail salon basically operates 24 hours a day. If she has to work late, say, till 2 to 3 am and start early on the following day for an early appointment, she would sleep in the nail salon and the defendant would also stay and sleep with her in the nail salon.  She records the approximate time of bookings in the diary of her mobile phone.

28.In December 2015, the defendant would come to see her at the nail salon in the afternoon and wait for her to finish work and go home together. 

29.In January 2016, her staff member resigned and left the nail salon.  She was subsequently able to hire another staff member to assist her in April 2016.  She was, therefore, working on her own in February and March 2016.  For the two months, she was very busy in terms of nail services and very often had bookings till late in the night and followed by bookings early in the next morning.  She was feeling exhausted and did not want to take the journey home. So she slept mostly in the nail salon with the defendant.

30.She looked at her bookings and remembered that, at the material time, the defendant was with her at the nail salon.  On 29 March 2016, the last appointment started at 7.30 pm and finished at almost 11 pm.  After that, she had to clean the shop and make accounting entries, which took about one hour. She also had an appointment at 10 am on 30 March 2016. 

31.She was asked to recall this in August 2016, as the defendant was arrested for the present case in that month and she also attended the police station for the defendant’s bail.

Analysis of evidence

32.I remind myself that the prosecution has the burden of proof to prove all the elements of the offence beyond reasonable doubt throughout. 

33.I have carefully considered all the evidence and submissions.  I find all five prosecution witnesses credible and reliable witnesses. 

34.I find what took place during the incident as captured by CCTV is overall consistent with Ms So’s description of the incident.

35.As to DPC8278 and Ms Yeung, I note that they have no direct knowledge of the incident and DPC8272 was not cross-examined by the defence. 

36.I note that one of the focuses of the final submissions made by the defence is centred around the quality of PC14267’s evidence.  I have carefully considered those submissions and do not find any of them to cast doubt on his evidence. By way of examples:

(i) - the defence pointed out a number of differences between his testimony in court and the records made in his witness statement dated 30 March 2016 regarding the number of males holding a long stick and removing face masks, the number of gloves discovered by him and his making no mention of finding a long stick object in the witness statement;

- PC14267 agreed that he had made mistakes in his witness statements, which led to those differences. He said that, upon receipt of the notice to give evidence in March 2016, he tried his best to remember the incident and the images concerned kept recurring and it was then he first realized that he had recorded one of the males holding a long stick in his witness statement and made an omission in this regard;

- although he had heard about the term of supplementary witness statement, he did not make one and admitted that it was his mistake for not informing the OC Case of the discrepancy;

- as to the difference concerning the record of the four men throwing face mask to the turf in his witness statement, he admitted to making a mistake in not giving a proper and detailed enough description to reflect the fact that two to three males removed their masks and threw them into the bushes;

- for the other two differences, namely, one pair of gloves were found and no mention of finding a long stick object in his witness statement, he omitted them due to his being in a bit of a rush, as well as his careless or negligence at the time of writing the witness statement;

- further cross-examination revealed that, as he thought that he could rectify the said differences in court, he had not at the time thought of reporting them to the OC Case;

- I find PC14267 has been candid when questioned about the said differences. I accept his explanations and consider the nature of the said differences to be minor and immaterial. I do not consider his thought of rectifying the said differences in court to be unreasonable;

(ii) - as to the defence criticism on his remarkable feat of memory to recall events in meticulous detail without any note to assist him after such a long period of time, I note that, in reply to the cross-examination as to how he was able to remember 16 months after the incident that he found two pairs of gloves, he said he had all along been thinking about the present case ever since he received the notice to give evidence;

- also, one’s ability to remember is, in my view, affected by a lot of subjective factors, qualities. As he received the said notice in March 2017 and had ever since been trying his best to remember the incident and the images concerned kept recurring, he therefore had about three months in between to remember the events before testifying in court. I do not find it surprising for him to be able to remember the details of the incident without aid of any notes;

(iii) - the defence questioned if he could have seen things clearly from a distance of 80 to 90 metres in the dark. Although he agreed with the defence suggestion that the said distance was very long and it was dark at night, he disagreed that he could not have had a clear view of the four males running down the road and their discarding objects into the bushes;

- since the four males were running towards the direction of Caltex Petrol Station and boarded a taxi which was about 50 metres away from PC14267, the said evidence, in my view, clearly showed that the distance between the four males and PC14267 was becoming shorter as they were running along Yuen Chau Kok Road before boarding the taxi;

- there were street lights along the whole of Yuen Chau Kok Road. He not only saw their gestures of throwing things into the bushes but also the gestures of one or two males putting one hand over the other. Further, the gestures of their throwing or discarding things into the bushes and behind the wire meshes were, in my view, undoubtedly clear and visible bodily actions with force;

- although he did say in reply that it was relatively dim when the defence suggest to him that the street was still quite dark even with street lights, I am sure that he did have a clear view of the four males as they were running along Yuen Chau Kok Road, including their gestures, as testified by him, and the observations made by him are correct;

- I am of the view that the relative darkness or dimness would have at most affected his observation as to the colours of their clothing, as revealed in his evidence that he could not be sure as to the colours of their clothing apart from the light colours;

(iv) - the defence also queried as to why there was a discrepancy between PC14267’s evidence and that of Mr Lee regarding the position of the South-Asian male on board of the taxi if PC14267 did see the four males clearly;

- according to PC14267, the South-Asian male sat in the front of the taxi. However, Mr Lee’s evidence was that the South-Asian male sat in the middle of the rear passenger seats. Since Mr Lee drove them to Mong Kok and the whole journey last about 20 to 25 minutes, he clearly was in a better position to tell the court as to the seating arrangements of those four males. I see no reason to doubt his testimony in this regard;

- however, it can be seen from the CCTV channel 3 footage that the colours of the clothing of the first and third male, that is, 00:53:37 and 00:53:41, appeared to be of a similar and fairly light colour tone, whereas the colours of the clothing of the other two males also appeared to be a similar colour tone but not as light as that of the first and third male. As such, the colour of the clothing of the South-Asian male in question must have been closely similar to one of the other three males;

- given the said colour similarities in the clothing and the fact that they must have boarded the taxi in a hurry as they were running beforehand, I am of the view that the observation made by PC14267 in this regard would have thereby been affected and inaccurate. However, I consider this inaccuracy and discrepancy to be minor and immaterial.

37.As to Madam Lai’s evidence, I do not find her evidence credible and/or reliable.  By way of examples:

(i) in cross-examination, she said the defendant accompany her to work every day. This is clearly inconsistent with her evidence-in-chief that the pattern in December 2015 was that the defendant would go to see her at the nail salon in the afternoon. Also, if, as alleged, the defendant did accompany her to work every day and stay at her shop waiting for her to finish work and go home together, I find it incredible that she had not mentioned this regular pattern of their daily life in her evidence-in-chief;

(ii) she was cross-examined if she had thought of buying a foldable bed or futon for sleeping over in the nail salon since she slept there regularly. She explained in reply that, as she would very often work until late and get up early in the morning, she did not actually sleep for many hours. Following up on that answer, the prosecution pointed out to her that the said issue concerned not only her but also the defendant. And she said in reply that the floor was not hard as there was carpet on the floor. As this question was clearly directed at her concerns about the defendant’s view or feelings about sleeping on the floor, her answer, in my view, was evasive;

(iii) she agreed that she slept and fell asleep at 12:00 am on 30 March 2016. As such, I find it unreasonable for her to disagree to the suggestion made by the prosecution that she could not be certain that the defendant did not leave once she fell asleep. Her explanations that the defendant had his arms around her and she being a light sleeper would know if defendant moved were, in my view, excuses made up by her to justify her position in order to protect her husband.

38.I disbelieve her evidence. I do not believe that the defendant was with her at the time of the offence.  My rejection of her evidence is not determinative of the issues and no adverse inference can be drawn against the defendant.

39.In light of my above analysis, I see no reason to doubt the evidence of the prosecution witnesses and believe their evidence.

40.I find that the incident clearly occurred at the bar in the manner and circumstances as described by Ms So.  I note that there is no evidence from Ms So as to the nationality and/or race of the culprits. 

41.Given the close proximities in terms of time and place between the happening of the incident at the Bar and the observations made by PC14267, including his descriptions of the four males, I am sure that the four males seen by PC14267 were those whom Ms So saw smashing the subject properties during the incident.

42.Further, having regard to Mr Lee’s description of the front seat passenger, that is, a fat guy wearing a mask and blue clothing, which tallies with the general appearance of the four males shown in the CCTV footages, and his evidence that one of the four males was a South-Asian male, I am sure that the four males who boarded his taxi were the four males seen by PC14267, that is, the four males involved in the incident.  I am sure that one of the culprits was a South-Asian male. 

43.It is submitted that the DNA finding is not conclusive evidence against the defendant.  Ms So’s evidence and the CCTV footages showed that the four males were all wearing face mask and gloves and using long stick-like hard objects, such as metal bars and hammers, to hit the subject properties at the Bar.  According to PC14267, the four males threw the face masks and the long stick objects into the bushes as they were running along the road and he later found two face masks, two pairs of gloves and a metal bar in the ditch and the bushes.  DPC8278 later seized them and two more hammers in the vicinity. The appearances of the said exhibits are consistent with Ms So descriptions of the face masks, gloves and hard objects used by the four males, as well as the incident captured by the CCTV footages. 

44.I find the only reasonable and irresistible inference is that P1 to P4 were the face masks, gloves and the long stick-like objects used by the four males at the time of the incident.

45.I also note that the two pairs of gloves appeared to be very similar in terms of style, design and colour combinations, blue and black.  In my view, the similarities show a connection between them and are evidence consistent with my finding that they were the gloves worn by the males involved in the incident.

46.Based on my above analysis, the random match possibility at 293 quintillion to 1 and in the absence of any reasonable explanation for the presence of the human DNA on the inside surfaces of glove B containing a match to the defendant’s DNA, I find the only reasonable and irresistible inference is that it was the defendant who left the DNA on the inside surfaces of the glove at the time of the incident as he was one of the four males wearing gloves involved in the incident and discarded the glove which contained his DNA and he was the South-Asian male that both PC14267 and Mr Lee referred to in their respective testimonies.

Conclusion

47.There are no material discrepancies, omissions and/or improbabilities in the overall prosecution case.  I am satisfied that the prosecution has proved beyond reasonable doubt all the elements of the offence and convict the defendant of the charge.