HKSAR v. Chiu Wai Keung

CACC 441/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 441 OF 2011

(ON APPEAL FROM DCCC 710 of 2011)

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BETWEEN

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Before: Hon Stock VP, Lunn JA and Macrae J in Court

Date of Hearing: 17 July 2012

Date of Judgment: 26 September 2012

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J U D G M E N T

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Hon Stock VP:

1.I have had the advantage of reading in draft the judgments of Lunn JA and Macrae J but I find myself in respectful disagreement with the conclusion which each reaches and with their reasoning.

2.It is fundamental that the burden of proving all facts relevant to the establishment of guilt lies on the prosecution.  The absence of testimony from a defendant does not provide proof of any one such fact.  All it might do in some cases is to render it safer to accept uncontradicted prosecution evidence or easier to discount doubts about the reliability of witnesses or about the inferences to be drawn from the evidence: see Weissensteiner v The Queen (1993) 178 CLR 217 at 227, referred to by Lord Hoffman in Li Defan v HKSAR (2002) 5 HKCFAR 320 at 332.  But the failure of an accused to give evidence is never more than “a circumstance which may bear upon the probative value of the evidence which has been given” (see Weissensteiner above at 228).  And it must follow that if the evidence which has been adduced is insufficient of itself to establish guilt, the silence of an accused upon arrest or at trial adds nothing.

3.What then was it that the prosecution evidence had to show, absent some contrary explanation from the defendant in this case?  It had to show not only that the burglary was committed on the 23^rd floor of the building in question on 2 December 2010 (a fact that was clearly established) but also that the defendant was himself an unlawful entrant to the switch room on that floor on that day, and, it then inevitably followed, party to the offence committed there that day.

4.How did it do so?  It purported to do so by showing that at some point in time he had been to that room.  Yet I fail to see how it was shown that he had been to that room on the day of the burglary.  From what evidence or circumstance can it be suggested that one could safely infer that he had been in that room on that day?  Absent a logical and irresistible inference to that sole effect from the evidence, the question of silence dispelling possible doubts did not arise.

5.There was evidence that entry to the room in question (and to the switch rooms on all the other floors) had been secured by use of a key, to which key access could be had by security personnel and workers.  Workers who had access to that room were required to enter their names in a logbook and their identity cards were checked (and presumably noted).  Yet no evidence was led that the applicant was not an employee at the housing estate and no evidence that his name or identity number did not appear on that logbook.

6.Insofar as the question might be asked how in such circumstances is the prosecution to prove its case, the answer is that the cases to which the judgment of Macrae J has referred show the circumstances in which fingerprint evidence will in combination with other evidence prove guilt and show what it is that is missing in this case.  Those cases can all be distinguished from this case on their facts:

(1)    The report in Castleton is sparse as to the facts but what we see is that the fingerprints were left upon a candle which was left behind at the scene of the burglary: in other words, it seems that someone had taken a candle into the premises in order to commit the burglary and it was proved that the candle belonged to the appellant.  That is entirely different from the present case; it is not as if, in the present case, the applicant’s fingerprints were found on an implement of the burglary, an implement taken into the premises.  The effect of Castleton is highly limited; it constitutes no more than the application in that case of a common sense proposition, which is that “a person may be identified by fingerprints alone” (Archbold 2012, para 14-53; emphasis added).  It is not authority for the proposition that once it is proved, by reason of the presence of his fingerprints, that an accused was at some stage or another present in a place where on a specific day a crime was committed it is, without more, safe to conclude beyond reasonable doubt that he was at that place on the day of the crime and committed it.

(2)    Parker was not a case in which all that was relied upon was the presence of Parker’s fingerprints in the warehouse where the burglary had been committed.  The premises had been secured by the owner when he locked up at about 1 pm on a Saturday and only opened at 8 am on the Monday.  The burglary took place in that time.  Parker’s fingerprints were found on a bottle of ginger beer in the premises.  How was the prosecutor able to prove that Parker was in the premises during that weekend lock-up period?  The answer is that the prosecutor proved that the ginger beer bottle had only been brought into the premises by a member of the firm very shortly before the premises were locked-up for the weekend.  So Parker must have been in the premises over the weekend; the weekend the warehouse was broken into.  As the High Court pointed out, at 683: “ … there is in this case evidence that the prisoner’s signature [his fingerprint] was found in the place which was broken into, and was found under such circumstances that it could only have been impressed at the time when the crime was committed.” (emphasis added).

(3)    Wong Wai Leung was a case of a burglary inside domestic premises.  The applicant’s thumb print was found on a cosmetics box in the bedroom where the burglary took place.  The additional evidence in that case was that of the victim who testified that the applicant was unknown to him; that is how the prosecutor was able to drive the court to the inference that the applicant was the burglar.

7.So one returns to the question: how was it proved in the instant case that the applicant was party to the crime in question?  The respondent’s answer can only be: “By showing that his fingerprint was there.”  So the next questions to be posed to the prosecutor must be: “ But how do you prove – the burden being on you – that he was not authorized to be there; and, in any event, how do you prove that he was there on the day (and at the time) of the crime?”  I see no satisfactory answer to those questions.  The applicant’s silence is no answer to the questions, because the uncontradicted evidence produced by the prosecution is not in itself sufficient from which to draw an inference of guilt of that offence.

8.It is said by Lunn JA that: “It beggars belief if the case was that he was authorized to be present in the switch room … that was not canvassed in cross-examination of the security guard …”, and, similarly unthinkable, it is suggested, if the applicant’s case was that he was a person who had merely accompanied a fellow workman so that the applicant was not required to provide identification details, that that would not have been canvassed in cross-examination with particulars suggested in cross-examination as to the date and time of his visit and of the fellow workman.  My Lord further points out that if it was the defence case that the key had been obtained from the control room rather than at the counter at which the security guards were, the prosecutor would have been invited by defence counsel to tender the relevant witness to speak to the relevant records, yet there was no such request.

9.I find myself, with respect, unable to concur with that line of reasoning.  The failure to put a particular line of defence takes the prosecution case no further in terms of proof than if there is no cross-examination at all.  It was not for the applicant to suggest when and in what circumstances his fingerprint came to be on the inside of the door; on what date and for what purpose; and if not on the date of the offence charged, whether for a lawful purpose or even an unlawful purpose.  It was a case in which the question was whether the mere presence of the accused’s fingerprint was sufficient to prove directly or by necessary inference the applicant’s unlawful presence in that room on the day of the offence charged.  As to that, there was no evidence of an admission by the applicant; nothing found at his residence or place of work to implicate him in the crime charged; no visual identification of him as a person at the building on the day of the offence; nothing of his found in any one of the twelve other rooms in that building which were visited by the burglar or burglars that day; no evidence as to the age of the fingerprint; no accomplice evidence.  Rather, there was evidence establishing only that at some time or another he had been in that room.  One is bound to ask this question – if this were a murder charge, a murder having taken place in a switch room of that building on 2 December 2010, would the presence of this applicant’s fingerprint on the inside of the door of that room – absent evidence, one way or the other, of any authorization for him to have been there at any stage – have sufficed to convict him of that murder?  Surely not.  If that be correct, I fail to see that the fact that this is ‘only’ a burglary charge makes any difference.

10.This is one of those cases in which the prosecution happened not to have the evidence to prove the commission of the offence by a person strongly suspected.  Such a situation is a fact of prosecutorial life.  It is a situation with which common law lawyers have long been familiar, enabling defence representatives to sit mute, fold their arms and say “prove it”, thereby giving expression to the “golden thread” to which Lord Sankey referred in Woolmington v DPP [1935] AC 462 at 481.  Whatever suspicions one might nurse, the ultimate question is always whether the case has been proved.  In my judgment, this case was not proved.  

11.Accordingly, I would grant leave, treat the hearing of the application is the appeal, allow the appeal and quash the conviction.

Hon Lunn JA :

12.I have had the advantage of reading in draft the judgments of Stock VP and Macrae J.  For the reasons given by Macrae J, with great respect to Stock VP, I would refuse the application for leave to appeal against conviction.  However, I wish to add some observations of my own.

13.There was no dispute that at some time between 7:30/ 8:00 a.m. and 3:00 p.m. on 2 December 2010 a burglary was committed in the switch rooms on the 14^thto 26^thfloors of Pak Fung House and copper used as a lightning conductor stolen.  A fingerprint impression lifted by a police officer that day from the inside of the door to the switch room on the 23^rd floor of Pak Fung House matched the right thumb fingerprint of the applicant.  However, the fingerprint expert was unable to say when it was left there.  It was an admitted fact that the applicant was arrested on 31 March 2011.

14.A sign on each of the doors to the switch room warned in English and Chinese characters: ‘Danger, Electricity.  Unauthorised Entry Prohibited’.  It was the unchallenged evidence of a security guard employed at Pak Fung House that she had checked a random selection of the switch rooms at the earlier time and found them to be locked and, having entered the switch rooms, she found them to be intact.  She gained access on both occasions by the use of the same key to open the lock of the door of each of the switch rooms.  On the latter occasion she checked all the switch rooms on all of the floors and found no marks that any of the doors had been prised open.  The doors locked automatically when they were closed.

15.She testified that two keys which operated the locks of each of the doors to the switch rooms were kept at the Counter on the ground floor of Pak Fung House.  Other keys which operated those locks were kept at the Control room, which was situated in Pun Yuet House a walk of seven minutes away from Pak Fung House.  She said that workmen were able to obtain those keys from both the Counter and the Control room.  They were required to register before they were given possession of a key to the switch rooms.  They did so by producing their identity documents and a record was made in a register book.  No one had been given possession of a key to the switch room that day at the Counter, although she said that such requests to be given possession of the key to the switch room happened “often, very often”.  No register book was produced in evidence or any further reference made to it.  There was no evidence of how long those records were kept.

16.Of the evidence of the finding of the applicant’s thumbprint on the inside of the door to the switch room on the 23^rd floor, and having noted earlier that the applicant had not given evidence at trial, the judge said:

“Only security staff and workmen would have reason to legitimately access the room.  Workmen would have to register their particulars before being allowed use of the key.  It is not for this court to speculate how the defendant might have access to this room for legitimate purposes.  Taking into account all the evidence produced before me, I was irresistibly drawn to the conclusion that the defendant was involved in the burglary the subject of the charge.  There is no evidence before the court from which it might draw any other reasonable inference.”

17.The inferences that might properly be drawn from the finding of a fingerprint on an object are obviously fact sensitive.  The candle on which the appellant’s fingerprint was found in Castleton appears to have been used in the commission of the burglary.  The finding of the appellant’s fingerprint on the ginger beer bottle in Parker was to be viewed in the context of the other evidence, namely that it had been brought to the premises shortly before they were locked up for the weekend, during which weekend the burglary occurred.  As has been noted in the judgments of Stock VP and Macrae J, in those circumstances, in giving the judgment of the High Court of Australia, Griffiths CJ said that the fingerprint :

“... was found under such circumstances that it could only have been impressed at the time when the crime was committed.”

18.It is to be noted that a contrary view had been taken earlier in the proceedings by Madden CJ, in his dissenting judgment, in the Supreme Court of Victoria, in which he addressed the possibilities that existed to explain the discovery of the appellant’s fingerprint on the ginger beer bottle (page 156) :

“… Or it might conceivably have been handled by the prisoner somewhere before it came to the owner of the house which was broken into. And apart from that, there is a general danger of saying that these prints may be relied on as exclusive evidence, when other evidence might have been called, but was not, which might have thrown light on the matter, one way or the other.”

19.In the instant application there was no evidence of any restriction of the category of workmen permitted to obtain possession of the keys to the switch rooms, in particular that those workmen were all employees at the housing estate.  Similarly, there was no evidence as to whether or not the particulars of any other workmen, accompanying the person who provided his identification particulars to obtain the key, were also required to provide their identification particulars.  However, it beggars belief, if the applicant’s case was that he was authorised to be present in the switch room and, following the procedures outlined by the security card, had provided personal particulars in order to be given possession of the key, that was not canvassed in cross-examination of the security guard and she invited to produce that register.  Similarly, even if the applicant had merely accompanied a fellow workmen, who had obtained the key to the switch room in such circumstances, but that he had not been required to provide such identification details, it is unthinkable that would not have been canvassed in cross-examination of the security guard: firstly, that the system permitted authorised access to the switch rooms by persons, accompanying the person to whom the key was given, in such circumstances; and secondly, with particulars as to the date and time of the occasion and, no doubt, with the fellow workman being identified.  There was no such cross-examination.  Such cross-examination as there was merely canvassed the conceivable possibilities.

20.Further, if it was the defence case that the key had been obtained from the Control room, rather than the Counter at which the security guard worked, the prosecution, it having established the system of authorised entry to the switch rooms, would have been invited to tender the relevant witness to speak to those records.  There was no such request.

21.Clearly, such matters were capable of being explored and established in the prosecution case.  It did not impact upon the applicant’s choice as to whether or not to avail himself of the right to give or call evidence in the defence case.

22.In the absence of such cross-examination or request, it was not incumbent upon the prosecution to embark upon the exercise of adducing evidence to negative those possibilities.  Mere proof by the prosecution that the applicant was not an employee of the housing estate or that he had not personally signed for one of the keys on an earlier occasion was always going to leave the evidence incomplete.

23.Ultimately, it is to be remembered that the applicant’s fingerprints were found on a fixed object inside locked premises to which unauthorised entry was prohibited and in which a burglary had been committed.  In the absence of any evidence or an explanation as to why it was there, the judge was correct not to speculate as to all the conceivable possibilities as to how it came to be found there but was entitled to draw the irresistible inference that the applicant left the impression where it was found because he was involved in the burglary.

Hon Macrae J:

24.The applicant was convicted by HH Judge Browne in the District Court of a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, and sentenced to 20 months imprisonment.  He appeals against his conviction only.

25.Verdict apart, the evidence and submissions at trial were concluded in less than two hours.  As befits such a short trial, the issue was very simple and Mr Szeto, who also represented the applicant at the trial, is to be complimented in concentrating upon that issue and on the conciseness of his submissions both at trial and during this appeal.

The facts

26.On 2 December 2010, the switch rooms from the 14^th to the 26^th floor of Pak Fung House, Choi Wan Estate in Kowloon were burgled and a quantity of copper plate stolen.  The matter came to light at some time after 2 pm that day when a female resident of the building noticed three people acting suspiciously near the switch room on the 16^th floor and reported the matter to the management.

27.As a result, Ms Wong Yuk-chi (PW1), a security guard at the building concerned went up to the 16^th floor.  The door to the switch room was closed as usual (which meant that it would be locked automatically) and there were no signs of any prising.  However, in an adjacent electricity room, she discovered a bag full of copper plate which had originally been placed in the switch rooms.  Checks were then mounted on the switch rooms in the building and it was discovered that copper plate, which was in fact lightning rods, had been removed from all of the switch rooms from the 15^th floor upwards.  Furthermore, some screwdrivers and a spanner were found in the switch room on the 14^th floor.  As a result of what she found, the police were informed.

28.PW1 testified that the switch rooms and electricity rooms were kept locked and were only accessible by one of two master keys which were kept at the control room of the building.  Photographs produced at trial show signs printed in red in Chinese characters and in English and securely attached to the two switch room doors depicted warning, as one might expect, ‘Danger, Electricity.  Unauthorised Entry Prohibited’.  Apart from the security guards, workers doing necessary maintenance work in the switch rooms could register and sign out a key for that purpose; although no keys had been signed out on that particular day.  She further gave evidence that she had checked some of the switch rooms in question that morning during her routine patrol and they all appeared to be in order with no sign of anything being amiss. 

29.The only other witness for the prosecution was Detective Station Sergeant 22504 (PW2), a fingerprint expert attached to the Identification Bureau at Police Headquarters.  He gave evidence, which was not challenged, that the right thumb fingerprint of the applicant was found later that day on the inside of the wooden door of the switch room on the 23^rd floor of the building.  However, he was unable without more information to say how long the fingerprint would have been there.

30.There was no submission of no case to answer and the applicant did not give evidence.

The issue at trial

31.The short point at trial, as it is in this appeal, is whether the applicant could properly and safely be convicted of burglary of the switch rooms on the sole evidence of a single fingerprint.

The judge’s reasoning

32.The learned judge directed himself in approaching the evidence that he could “only draw an inference from facts proved beyond reasonable doubt and such an inference must be the only inference that the court can reasonably draw.  It must be an irresistible inference.” He went on to find as follows:

“The wooden door from which (the applicant’s) thumb print was lifted was kept locked. The thumb print was found on the inside of the door on the day of the burglary. I accept that the fingerprint expert was unable to say when the print would have been made. Only security staff and workmen would have had reason to legitimately access the room. Workmen would have to register their particulars before being allowed use of the key. It is not for this Court to speculate how the defendant might have accessed this room for legitimate purposes. Taking into account all the evidence adduced before me, I was irresistibly drawn to the conclusion that the defendant was involved in the burglary, the subject of the charge. There is no evidence before the court from which it might draw any other reasonable inference.”

The grounds of appeal

33.Mr Szeto takes issue with that finding and argues that the single piece of evidence of the applicant’s thumb print on the inside door on the switch room on the 23^rd floor was not sufficient to convict him of being a party to the burglary of that particular switch room, let alone the burglaries of the switch rooms on all of the other floors.  Furthermore, by saying that it was not for the court to speculate how the applicant might have accessed this room for legitimate purposes, the judge was effectively reversing the onus of proof and requiring the applicant to prove his innocence.

Discussion

34.Whilst the circumstances in which a fingerprint may be found and the cogency of such evidence may differ from case to case, it has long been the law that a court may rely on a fingerprint as the sole evidence of identification.  In R v Castleton [1910] 3 Cr App R 74, a case considered as the source of this principle, the only evidence against the appellant was of his fingerprints on a candle left behind at the scene of a burglary.  It was submitted on his behalf that there may have been an innocent reason for his fingerprints being on the candle.  Given counsel’s argument before the Court of Criminal Appeal, it would seem that the appellant, as in this case, did not give evidence.  The appeal was dismissed.

35.Castleton was applied in R v Parker [1912] VLR 152 where the only evidence against the appellant was his fingerprint on a bottle near a safe inside a burgled warehouse.  The bottle had been bought and left in the premises on the afternoon before the premises had been closed and secured.  Leave was subsequently refused by the High Court of Australia in Parker v R [1912] 14 CLR 681, the court holding that

“… the signature of the prisoner’s finger was found in a place which had been forcibly broken into, and it was found there under such circumstances that it could only have been impressed at the time when the crime was committed. It is impossible under these circumstances to say that there was no evidence to go to the jury.”

36.With respect, this simply accords with common sense.  If a defendant’s fingerprint is found inside locked premises, where he should not normally have been, and from which everyone, other than a very restricted section of people, is prohibited access, and when there is no obvious, or indeed any, explanation as to why the fingerprint should have been there, then a judge (or jury) is, depending on the circumstances, entitled to infer that he was a party to the burglary of those premises; assuming that it has been properly proved (as was the case here because it was not disputed) that it was indeed the defendant’s fingerprint.  It is not a matter of requiring a defendant to give an innocent explanation for the presence of his fingerprint: rather, it is to permit the drawing of an appropriate inference from the presence of a fingerprint which should not otherwise have been there. The judge was right that it was not for him without any evidential basis to imagine how a fingerprint might have been innocently left on the inside of a locked door to burgled premises by someone with no apparent connection with the building.  He was, however, entitled to draw the appropriate inference from the fact that it simply should not have been there.

37.A similar process of reasoning was adopted in HKSAR v Wong Wai Leung (Unrep) Cr App No 494 of 2003.  In that case three people were observed emerging from domestic premises from which a quantity of valuables was found to have been stolen.  The only evidence against the appellant, who did not give evidence, was his right thumb print found on a cosmetics box which had been kept in a draw next to the victim’s bed.  Ma CJHC (as he then was) giving the judgment of the court held (para 7), in relation to a similar argument which was advanced before us:

“On the facts, Mr Tse submitted it was a reasonable inference to be drawn from the Applicant’s thumb print being on the cosmetics box (other than he being a burglar of the premises) that he may have handled the box at Watson’s. However, there simply exists no evidence from whatever source to show that the Applicant may have handled the box at Watson’s or indeed anywhere else. The Applicant might as well have said that he may have handled the box at work because without any evidence to show the possibility of his having handled the box in innocent circumstances, an inference along these lines remains, as the judge described, remote. It is not an inference that can be reasonably drawn from the fact of the Applicant’s thumb print being on the box alone. This is to be contrasted with the inference that the judge did draw: the fact that the Applicant’s thumb print was found on an object in premises which had been recently burgled, does give rise to a reasonable inference that he was present at the premises.”

The court went on to observe that in Castleton,

“… the court emphasized the importance of dealing with the actual evidence adduced at trial and not with speculative possibilities.”

(See also香港特別行政區對孫俊文 (Unrep)Cr App No 441 of 2004)

38.The two cases relied on by Mr Szeto do not undermine this obvious approach.  In R v Chan Man Yung (Unrep) Cr App No 455 of 1994, the court was dealing with a direction to the jury by the trial judge that the fact that the applicant’s fingerprint was found on a roll of adhesive tape found in the lorry which had been used to ram the vehicle carrying the cameras “was not evidence from which the jury could, by itself, infer that the applicant had taken part in the robbery.”  In my view there could well be a difference in evidential value between a fingerprint found on an easily moveable or transferable item and an immovable object such as door. Much depends, as I have said, on the circumstances in which the fingerprint is found. Be that as it may, the court said of this direction:

“In our view, that was the fairest direction which the applicant could possibly have expected the judge to give.”

39.It seems clear, particularly in view of the court’s later remarks about why the applicant had not explained the fingerprint, that the court was merely commenting on how favourable in the circumstances the direction was rather than approving its correctness as a matter of universal application.

40.The other case relied upon by Mr Szeto, namely HKSAR v Li Chun Ming (Unrep) Cr App No 32 of 2003, may be distinguished on its facts, for it would seem from the evidence that the house and vehicle where the DNA evidence and fingerprint respectively were found were not places in which the applicant could not otherwise have been expected to be found. The court considered that all the evidence showed was that “at some time or another the applicant had been in the premises in question” (para 12).  The appeal was allowed on the basis that the jury should not have been directed that the applicant’s lies could provide support for forensic evidence which in the circumstances of this particular case (which was not a burglary case) did not go very far.

Conclusion

41.In my view, the finding of the applicant’s fingerprint on the inside of the door of one of the locked switch rooms of a building in which that and a number of other switch rooms had been burgled that day does, in the absence of any evidence or explanation as to why it might otherwise have been there, lead to the irresistible conclusion that the fingerprint was left behind at the time of the burglary and that the applicant was party to the burglary.  I cannot, with respect, agree that it was incumbent on the prosecution to prove that the applicant was not an employee at the Estate building in question or that his name did not appear in the logbook (assuming all maintenance workers were required to register their details rather than the one who actually signed the key out).  On the other hand, it is inconceivable that had the defendant in fact been in the switch room for maintenance purposes or any other legitimate reason, he would not have said so; or at the very least produced some other evidence of his legitimate connection with the switch room.  However, he did not do so and the court was left to consider what inferences were available on the remaining evidence.

42.I would refuse the application.

Hon Stock VP:

43.Accordingly, the application for leave to appeal against conviction is, by a majority, dismissed.

Ms Wong Sze Lai, Lily, SPP of the Department of Justice, for the respondent

Mr Patrick Szeto, instructed by Messrs Mike So, Joseph Lau & Co, assigned by Director of Legal Aid, for the applicant

Please refer to FAMC59/2012 for the relevant appeal(s) to the Court of Final Appeal.