HKSAR v. Li Chung Chuen

CACC412/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 412 OF 2009

(ON APPEAL FROM DCCC NO. 166 OF 2009)

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Before : Hon Stock VP, McMahon and Wright JJ

Date of Hearing : 27 August 2010

Date of Judgment : 27 August 2010

Date of Reasons for Judgment : 3 September 2010

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REASONS FOR JUDGMENT

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Hon McMahon J (giving the reasons for judgment of the Court) :

1.The applicant was convicted after trial by Deputy Judge Woodcock in the District Court of two offences of burglary of commercial premises, and was sentenced to a total of four years’ imprisonment.  The trial took place in October 2009.  The offences occurred some ten years earlier in December 1999.  The reasons for the delay were not relevant to the applicant’s application for leave to appeal his convictions which we dismissed on 27 August.  We reserved our reasons for so doing and now give those reasons.

2.The prosecution case was that on the night of 21 December 1999 the applicant and other persons went to the Sui Sing Commercial Building in Shamshuipo and there burgled separate premises on the 5^th and 12^th floors.  On the 5^th floor the victimized company was the On Tak Trading Company (“On Tak”).  The applicant and his accomplices gained entry to the premises by forcing the padlock on the metal grille at the main doorway.  Once inside they stole cash which had been left in the premises, some electrical devices owned by the company and other personal items belonging to the proprietors and staff. 

3.Following that burglary the applicant and his accomplices went to the 12^th floor premises of the Golden Computer Technology Company Ltd (“Golden Computer”) and gained entry by prising open a roller shutter leading into the warehouse portion of the premises.  Once inside they stole various items of computer equipment, cash and personal items belonging to the staff.      In the course of this burglary they had tied up and gagged the night watchman of the building and left him inside the premises where he was subsequently found when staff and police arrived at the scene on the morning of the 22 December.

4.There was no issue at trial that the two burglaries had taken place.  The only issue was whether the applicant had been one of the burglars.  There were no eyewitnesses, no CCTV recordings, fingerprints or admissions which the prosecution could rely upon to link the applicant to the burglaries.  The evidence against the applicant consisted of what was said to be his DNA (to a random match probability of 1 in 6,512) found in a Coca Cola can (Exh. P10) found in the 5^th floor premises of On Tak, and his DNA (to a random match probability of 1 in 5.41 trillion) found in a cigarette butt (Exh. P5) said to have been seized from the premises of Golden Computer on the 12^th floor.  Additionally the prosecution relied upon the use of a document, which appeared to be an On Tak business document, to obscure a CCTV camera lens in the premises of Golden Computer, thus linking the two burglaries.

5.The applicant did not give evidence.  His case was substantially contained in recorded interviews with the police.  That case was that at around the time of the burglaries the applicant had been a free-lance salesman for an advertising company and may in that capacity have gone to the premises of the two companies as a matter of sheer coincidence and left his DNA in each of Exh. P10 and P5.

6.As the judge said in her reasons for verdict :

“40.   I turn to the issue.  There is only one issue.  DNA evidence is the crux of the prosecution’s case.  Can the DNA evidence implicate and identify the defendant?  Can the prosecution convince the court to draw the irrefutable inference the defendant committed both these burglaries?”

7.Mr Grounds with Mr Patrick Tsang for the applicant, advances a number of grounds of appeal.  They may be summarized and re-enumerated as follows :

(1) The judge failed to properly evaluate the evidence surrounding the finding of the cigarette butt (Exh. P5) in the 12^th floor premises of Golden Computer and the finding of the Coca Cola can (Exh. P10) in the 5^th floor premises of On Tak, and the weight to be given to that evidence.

(2) The judge wrongly admitted and made inconsistent findings concerning evidence that paper taken from the premises of On Tak was used to cover CCTV cameras at the premises of Golden Computer.

(3) The judge failed to cause the transcript of evidence of prosecution witnesses to record to where a witness was referring on photographs or other documents shown to the witness.

(4) The judge failed to sufficiently consider the defence case as contained in the applicant’s interviews with the police and the statements of a defence witness produced as exhibits pursuant to section 65B of the Criminal Procedure Ordinance, Cap. 221.

1(a)   “The cigarette butt” (Exh. P5)

8.The prosecution case at trial in large part depended on the finding of the cigarette butt (Exh. P5), and the presence of the applicant’s DNA in it, inside the premises of Golden Computer on the 12^th floor of the Sui Sing Commercial Building.  Exh. P5 was important not only as proof of the applicant’s participation in the Golden Computer burglary but, because of the linkage between the two burglaries, also supported his involvement in the On Tak burglary.  The judge, in respect of the latter burglary, quite rightly was of the view that the random match probability between the applicant’s DNA and that found in the Coca Cola can Exh. P10 was too low to alone support a conviction.

9.Mr Grounds’s basic propositions were that the evidence surrounding the finding of Exh. P5 inside the premises of Golden Computer, rather than outside, was contradictory and unreliable, and that even if the judge was right to accept that Exh. P5 had been found inside the premises she failed to consider the possibility that it had inadvertently been kicked or carried into the premises.

10.The evidential inconsistencies relied upon by Mr Grounds appear in the evidence of PW2, one of the proprietors of Golden Computer, PW7 a police exhibit officer and PW4 a government scientific officer, all of whom went on the morning of 22 December 1999 to the scene of the burglaries.

11.PW2 had said on a number of occasions, as he was taken in his evidence-in-chief through a photographic album (Exh. P1) depicting the ransacked premises of Golden Computer, that his staff kept the premises clean and that the finding of cigarette butts and other items lying on the floor of the premises after the burglary was an abnormal situation.  In cross-examination he gave this evidence :

“Q.    Yes.  Now, you have said on a number of occasions that when you left the premises on the night of the 21^st, the floor and the premises were clean and tidy.

A.  It’s because our company produced a lot of labels and these labels were for sticking onto certain products and because of such production it involved a lot of paper.  So every night before we knocked off we would clean up the floor.

Q.  Yes.  ‘We’ being who?

A.  The colleagues.

Q.  So everybody responsible for his space.

A.  Right.  And for colleagues responsible for the warehouse, the floor there had to be swept every night.

Q.  Right. Who did the sweeping of the floor, anyone in particular or?

A.  No.

Q.  I see.  Because, Mr Choi, it is 10 years ago, it would be fair to say, would it not, that you didn’t specifically scour the floor to look for rubbish on the evening of the 21^st before you locked up and left.

…

A.  That would be correct.  When I found it as clean and tidy, I would leave.

Q.  Yes, but I think my point—let me try and be a bit clearer—would you go round every single room looking to see whether the floor had been swept, or would you, before you left, generally content yourself that the premises were clear and tidy and then lock up and leave?

A.  I would leave when I found it to be generally clean and tidy.

Q.  Right.  Now, who was responsible for taking rubbish away from your company?

A.  Any one of those staff members.

Q.  Well, when would they do that, any specific time?

A.  Usually, it would be at the night-time when they were about to knock off, they would sweep the floor clean and after that they would take the rubbish out.”

and later :

“Q.    Right, I’m just wondering, Mr Choi, if – when you’re about to leave to go home on the night of the 21^st, whether you would have even noticed a cigarette butt on the floor.

A.  It’s because no smoking is allowed in my warehouse, but I’m not sure whether it would be the case that I step on a cigarette butt somewhere and then I step into my company.”

12.Mr Grounds’s introductory complaint is that the judge failed to take into account that PW2’s evidence about the keeping of the premises of Golden Computer clean could go no further than generalities, and that therefore the prosecution case could not establish with certainty that Exh. P5 had not been in the premises prior to the night of the burglary.  As we understand Mr Grounds’s argument, that possibility, said to arise from the evidence of PW2, would of itself so undermine the prosecution case that the convictions could not stand.

13.We do not agree that to be so.  PW2’s evidence was part of the whole of the evidence in the prosecution case, including evidence that DNA with a high probability that it was the applicant’s DNA was also found in an empty can of Coca Cola located in the premises of On Tak on the 5^th floor of the building following the burglary of those premises on the same night and, as the judge noted, the two burglaries were connected by the use of On Tak paper to cover the lenses of the CCTV cameras in the Golden Computer premises.

14.PW2’s evidence therefore simply contributed to the matrix of probabilities the judge had to and did consider in drawing the inference that the applicant was one of those who burgled the two premises.

15.The more substantive complaint made by Mr Grounds concerning Exh. P5 is that the evidence as to it being located inside the premises of Golden Computer was inconsistent and unreliable.  He points firstly to the evidence of the police exhibits officer PW7 (who gave evidence after refreshing his memory from his witness statement made in December 1999).  In his evidence PW7 simply referred to Exh. P5 being found “on the floor near the grille”.  Mr Grounds points out that PW7’s evidence therefore did not specify that Exh. P5 was found inside Golden Computer’s premises.  

16.There is no merit in this particular complaint.  We have read the transcript of PW7’s evidence and in the context of his evidence as a whole it is sufficiently clear that he referred to Exh. P5 as being one of the exhibits seized from the Golden Computer’s premises by PW4, the scientific officer, and then handed by that witness to PW7 as the exhibit officer.  PW7 was insistent that he had no recollection of the exact location where PW4 had found those exhibits.  His evidence therefore was neutral as to the location of PW5 and this issue then boiled down to the evidence of PW4 who said Exh. 5 had been found “inside” the storeroom of Golden Computer. 

17.PW4’s evidence as to the exact location Exh. P5 was found was said by Mr Grounds to be internally inconsistent.  Entry could be gained to the premises of Golden Computer through two doorways.  One doorway led into the offices of the company, the other led to the storeroom.  Both doorways were protected by similar roller shutters and were immediately adjacent to each other.

18.PW4, in his evidence-in-chief, initially had said that Exh. P5 was found somewhere on the floor of the premises just inside the roller shutter leading to the storeroom.     He had then firstly been cross-examined as to whether at the time of trial he had an independent recollection of exactly where Exh. P5 was found.  He said he did not.  There was nothing remarkable in that.  The offence had taken place during the night of 21 to 22 December 1999.  PW4 gave his evidence on 14 September 2009.  As we say the reason for the nearly 10 year delay is irrelevant to this appeal, but it must have been perfectly plain to counsel at trial that PW4 was not giving and could not give details as to the exact location of the many exhibits that had been seized on his instructions.  That was illustrated when PW4 was shown various photographs of the scene taken on the morning of the burglary, but was unable to say whether any one of the objects shown in those photographs were Exh. P5. 

19.The particular inconsistency in PW4’s evidence complained of by Mr Grounds is said to have arisen when in cross-examination PW4 was shown a photograph of the premises and was asked near which of the two roller shutters seen in that photograph Exh. P5 was found : the one opposite the lift as one exited the lift on the 12^th floor, or the shutter to the left of that.  PW4 said it was the shutter opposite the lift.  It was common ground from the description of PW2 that this shutter was at the entrance to the offices of Golden Computer.  However in his evidence-in-chief PW4 had said that Exh. P5 was found “on the floor in the store of the doorway close to the roller shutter”  (emphasis added)

20.It is unsurprising that PW4 was unable to recognize from a photograph the correct shutter of the two adjacent and similar shutters at the entrance to Golden Computer’s premises.  He had been there for a few hours only some ten years previously.  He had been consistent throughout his evidence that the cigarette butt had been found inside the storeroom of Golden Computer and it is quite clear that, when he identified the particular roller shutter on the occasion during cross-examination, he believed mistakenly that it led to the storeroom.  In other words the inconsistency relied upon was in our view clearly a misidentification of the particular roller shutter rather than any material contradiction in PW4’s evidence.  We might add that at no stage in his cross-examination of PW4 or in his submissions had trial counsel ever suggested that Exh. P5 may have been found outside the Golden Computer storeroom.  It had not become an issue at trial and the judge was therefore entitled to accept the evidence of PW4 that Exh. P5 had been found inside the storeroom and, there being no issue in this regard, no additional reasons were required.

21.In any event, in our view, it little matters exactly where Exh. P5 was found.  The point was simply whether it (and therefore the applicant’s DNA) was found in or in the immediate vicinity of in the burgled premises or not.  Golden Computer occupied the whole of the 12^th floor and the small area outside the roller shutter was effectively a lift lobby used only by Golden Computer and there could be nothing material in the suggested inconsistency in PW4’s evidence.

22.Mr Grounds then goes further and suggests that Exh. P5 may have been accidentally kicked into the premises, or brought in on the bottom of a shoe, by one of the dozen or so investigators, photographers and staff of the company who arrived and entered the premises on the morning of 22 December.  We do not see any merit in that argument.  It was advanced at trial by counsel for the defence (not being Mr Grounds) and was no doubt considered by the judge.  It was simply one of the matters which the judge had to, and no doubt did, take into account in determining what weight to place on the evidence as to the finding of Exh. P5 in the premises in the context of the evidence as a whole.  At the risk of repeating ourselves it is clear in that regard that a fundamental consideration was the “coincidence” of DNA with a very great similarity to that of the applicant also being found in Exh. P10 in the 5^th floor premises of On Tak, and the connection between the two burglaries.

23.This ground could not succeed.

1(b)   “The Coca Cola can” (Exh. P10)

24.PW7, the exhibit officer also went to the premises of On Tak on the morning of 22 December.  He seized the Coca Cola can (Exh. P10) amongst other exhibits.  He said from his recollection it had been seized from a desk located well inside the premises.

25.PW7 had completed a police form shortly after the seizures and in it were listed the items, including Exh. P10 (by its police exhibit number B6).  PW7 said he then drew a sketch (Exh. P11) which set out the position of the items found and which confirmed the location at which Exh. P10 was found inside the premises.

26.Mr Grounds relies on the evidence of PW3 as casting doubt on the reliability of that of PW7.  PW3 had said in her evidence that when she arrived at work on the morning of 22 December the roller shutter was open (presumably the one to the office) and that she :

“… also found that at the doorway there were a number of soft drink cans, very dirty.”

When specifically asked whether they were inside or outside, she said they were outside.

27.We do not see how this evidence undermines that of PW7 as to the location of Exh. P10.  There were a number of soft drink cans found in the premises and the fact that some may have been just outside the door does not affect the evidence of the location of the others including Exh. P10. 

28.There was nothing in this ground.

2.  The “On Tak paper”

29.The prosecution case was that pieces of paper from the On Tak premises were used to cover the lenses of the CCTV cameras inside and outside the Golden Computer premises.

30.Mr Grounds complains that the judge had initially said in her reasons for verdict that the On Tak paper had “very probably” been taken from inside the premises of On Tak, but later in her reasons had said that there was evidence that the paper was “taken from within the offices on the 5^th floor”. 

31.We see no real inconsistency.  The initial statement of the judge was in the nature of a finding or conclusion and the latter superficially as a statement of the evidence, though it, when taken in context, was really an assumption made by the judge in the course of her finding that the two burglaries were related.  But in the context of the whole of the evidence it matters little.  Two burglaries on the same night in the same building, both premises entered by forcing their doors open and paper with one victim company’s name on it found to have been used in the burglary of the other, can lead to only one inference in our view, and that was the inference drawn by the judge that the burglaries were related.  That conclusion could properly be arrived at without going further and considering the coincidence of the DNA evidence.

32.Mr Grounds argues also that the reference to On Tak on the paper was hearsay and should have been ignored.  The complained of paper was in fact a fax message and read in its relevant part “TO ON TAK TRADING”.

33.This is a submission completely without merit.  The prosecution was not attempting to prove the truth of the contents of the document, but simply to prove it stated the name of On Tak.  There was no question of this evidence being hearsay.  The position would have been analogous if the logo of On Tak had been all that appeared on the paper.

34.There was no merit in this ground.

3.  “The transcript”

35.Mr Grounds argued that a judge is under a duty to describe, for the purposes of an accurate record, a reference by a witness to such things as locations in photographs, or estimates of distances.  In other words, it is the judge’s duty to put into words, for the purpose of the record of the proceedings, the non-verbal evidence given by a witness.  We accept that to be so : see Chan Chun Ching [1989] 1 HKC 546 per O’Connor J at 547-548.

36.Mr Grounds complains that the judge in this case did not do so.  The particular matters he relies upon as prejudicing the applicant’s case on this appeal are firstly, PW3’s evidence when, in viewing a photograph of the main entrance doorway of On Tak, she referred to a number of soft drink cans she had seen at the doorway as being “around here” and indicated a location on the photograph which was not described by the judge or marked by the witness.  It would perhaps have been better for either course to have been taken.  Nevertheless there is nothing in this complaint.  The Coca Cola can (Exh. P10) was not one of those soft drink cans seen at the doorway by PW3, but was found on the desk in the office by PW7.  The cans at the doorway had no substantial bearing on the issues at trial and that may have been why the judge took no steps of the sort we have described.

37.Mr Grounds points to another occasion of which he makes similar complaint.  In the course of the cross-examination of PW4 at trial he was questioned regarding objects appearing in two photographs which counsel thought might have been cigarette butts.

38.That evidence went as follows :

“Q.    Now, I don’t know how good your eyes are and I don’t know if these photographs help you, but if you look at photograph 1, you will see a metal bar running across the right-hand entrance, that is one opposite the lift along the floor, the metal bar running along the floor.  I’m pointing to this metal strip along the floor, you see that?

A.  Yes.

Q.  It seems to be directly underneath the path or perhaps maybe not, maybe slightly in front of the path of the roller shutter itself as it comes down and meets the floor.  Anyway, you know what I’m referring to.

A.  I know.

Q.  And you can see the same metal bar in photo 3.

A.  Right.

Q.  Right.  Now, Mr Lam, I don’t know because it is difficult to make out, but in photograph 1 if you just look to the right of the metal bar to which I’ve just referred, in the first tile to the right you can see what appears to be or could be a cigarette butt.

INTERPRETER:  ‘First tile to the right.’

Q.  All right.  That would be—let me indicate it.  Right there, almost at the corner of the wall.

INTERPRETER:  The ‘corner of the wall’?

MR MACRAE:  No?

COURT:   I’m just wondering whether it could be—perhaps if you were—Mr Macrae can point out to you directly.

MR MACRAE:  Yes.  Mr Interpreter, I’m going to point to two.  I’m going to point to this one there, that object there.

INTERPRETER:  Yes.

Mr MACRAE:   Just to the right of it.  And I’m going to point to that object in photograph 3, just to the left, it looks to be a different one—butt.  I’m going to point to those two.

Q.  Right. Mr Lam, the interpreter will point to two objects; one on photograph 1 at the place I have just indicated and another on photograph 3, just to the left of the metal bar, use a, I’m sure, magnifying glass if you—if you wish, the one on photograph 3 looks more like a cigarette butt than the one on photograph 1.  They appear to be different objects because of the distance from that particular wall.  What I want to know from you, do those photographs, do either of those objects help you now to recall where you found the cigarette butt?

A.  I cannot recall the exact location of where I found the cigarette butt.

Q.  If—look at photo 3 again, please—if that object to which I’ve just pointed is a cigarette butt, given its location you would have seized it or cause it to be seized, wouldn’t you?

A.  That’s correct.

COURT:   Sorry, can I—can I make double sure; perhaps you could point out to me which object.  Is the object in photo 1 and 3 the same object?

MR MACRAE:   No, no, I don’t think it can be, your Honour.

Q.  In any event, I accept, Mr Lam, you can’t say after all these years but certain if that object on photograph 3 is a cigarette butt, it would be described as on the floor at the doorway close to the roller shutter, wouldn’t it?

INTERPRETER:  ‘On the floor’…

MR MACRAE:  At the doorway.

INTERPRETER:  ‘… at the doorway…’

MR MACRAE:   Close to the roller shutter on the 12^th Floor.

INTERPRETER:   ‘… close to the roller shutter.’  ‘The floor at the doorway close to roller shutter.’

A.  I would have described it like that.”

39.In our view, given the detail of counsel’s descriptions of the whereabouts of the objects in the photographs, any further description by the judge could have done little better, and given PW4’s evidence that he could only remember that Exh. P5 was seized from the floor inside the store near the roller shutter (presumably nearby where the objects in the photographs were located) we do not think that any more precise indication of where those objects were would have taken matters further.  It was not suggested that any of those specific objects was Exh. P5.

40.This ground also failed.

4.  “The Defence case”

(a) The applicant’s interviews

41.Mr Grounds complains that the judge did not consider the defence case as set out by the applicant in his penultimate cautioned interview, Exh. P19.  The judge, in her reasons for verdict, had said this :

“32.   The defendant’s records of interviews were admitted into evidence in chronological order as P16 to Exhibit P20.  The first three were simple enough.  The defendant refused to answer any questions and said he did not do it, did not commit these offences.  After these three, the defendant contacted the police and wished to make a further statement to provide an alibi.  In essence, in his fourth record of interview, P19, he said he was at the material time a roving salesman and may have gone into this building to tout for business orders.  He could not say for sure.  Maybe he did; maybe he did not.  If he did enter this building and those premises burgled, he may have left behind a soft drink can or a cigarette end.  He smoked red Marlboro cigarettes.  He gave details of working for a Wah Fat Industrial Company.

33. In P20, his last record of interview, he could not recall any real or useful details of his employer or his colleagues due to the lapse of time.  However, there were two statements of a Mr Yee Wing-keung of Wah Fat Industrial Company based in Kowloon Bay, admitted under section 65C of the Criminal Procedure Ordinance (Exhibit D1 and D2).

34. Mr Yee owned at the material time this printing company.  He recalled employing a male who approached him for a job for two months as an outdoor roaming salesman.  If he got orders from his own clients, he would earn commission.  He resigned from the job after obtaining no orders.  Mr Yee has no record or impression of this man’s name, appearance or personal details.  Mr Yee could not recall when he started work or when he resigned.  He had no knowledge of or business with either of these victim companies.

35. The purpose of his evidence is to suggest that as a roving salesman of printing products, he may have had reason to be on the 5^th and 12^th floor of this building, trying to obtain orders.”

42.The judge later concluded :

“67.   I still ask myself the question: was the defendant a burglar or was he there innocently at a time when the offices were open for business?  I am sure he was not inside innocently or by chance.  I am sure he was trespassing with others and stole from within both premises.

68. He has suggested the possibility of being in the building to try and obtain orders as a roving salesman.  He may have therefore drunk form a can found on the 5^th floor and smoked a cigarette on the 12^th floor and left the end there.  That is too far-fetched a possibility and I reject this.”

43.Contrary to what had been advanced before us there was no greater consideration needed of the applicant’s case as set out in his interviews.  The judge’s conclusion was one of common sense.  We might add that even though the judge took the contents of the interviews into account, those contents were almost entirely exculpatory and she was entitled to place little or no weight upon them.

44.There was no merit in this complaint.

(b)    The evidence of Yee Wing Keung

45.A subsidiary complaint was that two statements of the proprietor of the printing company which the applicant in his interviews said had employed him as a roving salesman (though paid in cash and without formal employment documentation) which were admitted in evidence pursuant to the provisions of section 65B of the Criminal Procedure Ordinance, Cap. 221 were not referred to by the judge in her reasons for verdict.  The statements of the proprietor, Mr Yee Wing Keung, in no way advanced any consideration of the fundamental issue in this case.  He simply said in those statements that he had employed a male at his company for a period of two months.  But he was unable to remember any particulars of that person or when he hired him.  He remembered only that the person was a “roving salesman” and thought he did not smoke; the latter point not advancing the applicant’s case.

46.The evidence of this witness as contained in his statements was little more than neutral and in concluding that the coincidence of the applicant having been at both burgled premises innocently prior to the burglaries was “far-fetched” the judge had no need to go on and give express consideration to the evidence of Yee Wing Keung.

47.Mr Grounds made other submissions as to particular aspects of the evidence and the terminology used by the judge.  There was no substance in those matters and they can, without unfairness, be dismissed as involving minor or marginal matters that had no material bearing on the clearly expressed and well-grounded analysis and findings of the judge.

48.For these reasons, the application for leave to appeal the convictions was dismissed.

Mr Alex Lee, Ag DDPP of Department of Justice, for the Respondent

Mr Christopher Grounds and Mr Patrick Tsang, instructed by  Messrs Bobby Tse & Co., for the Applicant