The Queen v. Chan Kwok Wai

CACC000402/1995

IN THE COURT OF APPEAL

1995, No. 402
(Criminal)

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Coram: Hon. Yang, C.J., Ching, J.A. and Leong, J.

Date of Hearing: 20 December 1995

Date of Delivery of Judgment: 20 December 1995

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J U D G M E N T

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Leong, J. (giving the judgment of the Court):

The Applicant was convicted on two counts: robbery and possession of an imitation firearm at the time of committing a robbery. He was respectively sentenced to 7 years and 3 years imprisonment concurrently.

The evidence for the prosecution was in the early morning of 29th July 1994, Mr. Yiu Kan, a cashier of the Metropark Carpark at Middle Road, Kowloon, was working in his office when a man wearing a cap and sunglasses with a labour glove in his left hand and a cloth bag on his shoulder approached his window. The man threw a piece of paper into the window. He put his right hand into the cloth bag and pointed a long object which protruded out of the bag at Mr. Yiu. The long object looked like the barrel of a gun. Mr. Yiu realised it was a robbery and he gave the man $600. The man, waving the object, said it was too little. Mr. Yiu then gave him all the money he had. This amounted in total to $14,070. The man then fled.

Mr. Yiu reported to the police. Prior to their arrival, Mr. Yiu picked up the piece of paper thrown in by the man and found there were writings on one side of it. These writings, in fact, were a demand for money or otherwise some one would be shot.

This piece of paper Exhibit 12 was seized by DPC 23879 and after he returned to the police station, he photocopied it before handing it over to the exhibits office for safe keeping. A week later, he retrieved it from the exhibits office and took it to the Identification Bureau for fingerprint analysis. Exhibit 12 was put through chemical process by WSPC 15474 of the Identification Bureau who was responsible for checking and lifting of fingerprints from exhibits and at the scenes of crime. She found a number of prints on the blank side of Exhibit 12 but only one of them was found to have sufficient features for the purpose of comparison. This fingerprint was photographed by WPC 18260 in the presence of WSPC 15474. The photographs, including enlargements, of the print were handed to the finger print expert, Sgt. Ng, for analysis.

The Applicant was arrested by the police at his home on 13th January 1995, some five and half months later. At the time of his arrest, he made admissions that he committed the robbery and the airgun he used in the robbery was in the living room. The police conducted a search of his premises and found two air pistols, a cap, sunglasses and labour gloves. At a subsequent interview at the police station, the Applicant admitted that he committed the robbery with one of the air pistols found on his premises. He admitted that the writings on the piece of paper Exhibit 12 were his handwriting. The admissions were recorded in the statement Exhibit 10. The statement taker, PC 4585, gave evidence as to the circumstances when the Applicant was interviewed and he denied any impropriety in the course of the interview. These statements were admitted in evidence after voir dire proceedings where the judge found them to be voluntary.

Sgt. Ng used the photographs to compare the fingerprint found on Exhibit 12 with the fingerprints of the Applicant on the fingerprint form. He concluded that the fingerprint on Exhibit 12 came from the Applicant.

These photographs were compiled into a photo album Exhibit 15 which was produced at the trial. The original piece of paper Exhibit 12 was not produced because it had been destroyed on the recommendation of the inspector of the case. The reason given for its destruction was that up to 2nd November 1994, apart from the fingerprint on Exhibit 12, there was no other clue for further investigation and active enquiry on the case ceased. This was done as a matter of police practice. Comparison of the print found on Exhibit 12 could be done from the photographs if further clue arose for investigation to recommence.

The Applicant's case was that he was somewhere else and at no time near the Middle Road carpark at the time of the robbery. As to the statements containing his admissions, his case was he was threatened and assaulted by the police and he was induced to co-operate. The contents were not his and he only signed the statements and wrote out the declarations at the end as told by the police officers. However, he said he had been a police officer for three years and was trained in taking statements so that he was aware of the importance of attaching his signature on the cautioned statements. He never complained to anyone about the assaults. On 15th January 1995, two days after his arrest, at his request, he was sent to see a doctor but he made no complaint to the doctor and neither was there any mark found on his body.

The evidence against the Applicant was his finger print and the admissions.

The Applicant acts in person and there are three grounds in his written grounds of appeal against conviction:

1) He complained that the police officers in the voir dire proceedings gave inconsistent evidence and the judge was wrong in accepting their evidence and finding the statements were voluntary.

2) He complained that the fingerprint evidence was not beyond doubt since Exhibit 12 had been destroyed and only the photocopy was produced. He also complained the photographs could not show that the fingerprint was that on Exhibit 12. The judge should have stopped the trial.

3) He also complained that the judge failed to direct the jury that the robber wore gloves and could not have left any prints in the course of the robbery.

On the first ground, at the voir dire proceedings, the Applicant's objections to admitting the statements were fully considered by the judge. It was basically a question of fact and the judge's finding was dependent on the credibility of the witnesses. Having regard to the whole of the evidence, especially the Applicant's, the judge was entitled to come to his finding that the Applicant's statements were voluntary.

On the second ground, the fingerprint evidence against the Applicant was the fingerprint which was found on Exhibit 12 and its subsequent analysis and comparison with the fingerprints of the Applicant. It was not the piece of paper. Provided that the fingerprint had been safely preserved for later analysis, whether the original paper containing the fingerprint was produced is not important. The fingerprint was photographed under the guidance of the officer responsible for checking and lifting fingerprints. It had been adequately preserved. Sgt. Ng made the comparison using the photographs. This process is no different from the lifting of fingerprints at the scene from immovable objects and preserving them on perspex which are later photographed for comparison purpose. There was ample evidence to show that this was done carefully. There was no possibility of substituting the Applicant's fingerprint on the photographs since the Applicant at the time had not been arrested. The destruction of Exhibit 12 would not have prejudiced the Applicant in his defence in anyway nor impaired his ability to make full answer and defence. There was no reason for the judge to stop the trial. The jury had fully considered and had been fully directed in this respect and they were told if they thought there was anything suspicious surrounding the fingerprint evidence arising out of the destruction of the original document by the police, they should ignore the fingerprint evidence. In convicting the Applicant as they did, the jury could not have been left in any doubt that the fingerprint on the photographs which Sgt. Ng used to make comparison was the one found on Exhibit 12.

On the third ground, the prosecution case was that the fingerprint was found on the piece of paper which was thrown into the window by the robber. The fingerprint was left there when the Applicant wrote on it. It was not the prosecution case that fingerprints were found at the scene. In the circumstances, the judge was not required to go further than to mention that the robber wore gloves which, in fact, he did. No complaint could be made against him in this respect.

In our judgment, there is no merit in any of the grounds of appeal. The application for leave to appeal against conviction is dismissed.

The appeal against sentence has been abandoned.

Representation:

Miss M.A. Crabtree, D.P.C.C., for the Respondent

Applicant, Chan Kwok Wai, in person.