HKSAR v. Matriano Jonathan D
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DCCC 707/2012 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 707 OF 2012 -------------------------------
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-------------------------- Reasons for Verdict -------------------------- Charge 1.The defendant denies a charge of burglary which took place in a restaurant. Crux of prosecution case 2.A cash register and $2,500 cash were stolen. The police lifted a fingerprint and 2 palmprints at the scene. The defendant was an ex-employee for a week 7 months ago. The time lapse would have all his fingerprints and palmprints wiped off. His presence in the premises long after he had left the employment is a clear pointer of his having burgled the premises. Stance of defence 3.The defendant’s last working day was 2 days before the burglary. His fingerprint and 2 palmprints left on the premises incidental to his employment had remained there at the time of the burglary. Prosecution evidence Scene of burglary 4.At 3 p.m. on 27 July 2011, PW1 HAMZE Nadim, the proprietor of Sumac Restaurant (“Sumac”) returned to the premises to open for business, only to discover the present burglary amid signs of ransacking. A cash register, placed not far from the kitchen, together with $2,500 cash therein, was stolen. A kitchen knife [1](“the Knife”), among other knives and utensils, which he had last seen in a white cabinet on the sink counter in the kitchen before he closed the premises at 1 a.m. the same day, was found on the floor next to the same white cabinet[2]. There is a sketch plan of the premises not in dispute[3]. The Knife 5.He had set up a work rule for his staff to clean the knives each time after use. He doubled as the chef and used the Knife at times. It was the biggest one he had. There were only 3 – 4 knives as they were very expensive. They were in heavy demand in the kitchen. He would wash the Knife by wiping it with a green-pack sponge in soap and rinse it in water. Then he would wipe it dry with a towel. 6.Between December 2010 and July 2011[4], he had done so for about 5 times. Afterwards he would put it back to the cabinet where there were spoons, other knives and utensils. He saw his staff clean the Knife after use at times. Rear glass-door 7.He also required his staff to clean the rear glass-door daily (“the Rear Glass-door”). For about 100 times he had seen them spray some liquid on it and then wipe it with a towel. He cannot recall specifically whether or how the staff had cleaned it on the 2 days before the burglary. Defendant as ex-employee 8.PW1 had employed the defendant for a week as an under-chef 7 months (“the 7 Months”) ago, in late 2010. There was no contract of employment in writing. Since then, there was no contact between them. Fingerprint and palmprints 9.PW2 (PC 39) lifted a right thumb print (“the Thumbprint”) from the blade of the Knife and 2 palmprints (“the Palmprints”) from the Rear Glass-door, which was notfar from the cash register and the kitchen. PW3 DSSgt (fingerprint expert) was of the view that each print was identical to the control sample provided by the defendant. There was an unknown fingerprint partly overlapping the Thumbprint. Yet the former was too small in size for identification purpose. How long fingerprints or palmprints can last 10.PW3 says that a fingerprint on the blade can be damaged, so as to make it incomplete and unreadable for fingerprint analysis, by, say, cutting foods or rubbing with a cloth. If it is a greasy fingerprint, it has to be damaged by more forceful cutting or rubbing. The same goes for a palmprint on glass surface. Arrest of defendant and his whereabouts at time of burglary 11.The prosecution and the defence admit under section 65C of the Criminal Procedure Ordinance that, among other facts, that:
Defence case 12.The defendant elects to give evidence. He calls a witness. 13.He worked as a cook or chef in various restaurants since 1992. His working periods from August 2010 to July 2011 were as follows:
14.On 26 July 2011, at business hours, he went to Sumac to get his payroll cheque. After his last working day, 25 July 2011, he had not touched the Knife, nor entered the premises except to get his payroll cheque. 15.His understanding is that the Thumbprint was left on the Knife when he worked in Sumac. Despite the work rule to clean the Knife, he had never cleaned it. 16.DW1 GURUNG Vishal is the proprietor of Tequila. The defendant was an experienced and reliable employee but his hourly rate was high. He usually engaged the defendant on weekends or public holidays when the restaurant was busy. There was no contract of employment in writing. The defendant worked for him in 2 periods as follows:
Closing submissions 17.Both the prosecution and the defence make oral submissions. Findings of this Court On defence witness’s evidence 18.The prosecution does not challenge DW1’s evidence. I find him a credible and reliable witness. On defendant’s evidence 19.He considers himself a professional chef with ample experience. He had maintained a high standard at work, including the cleaning of knives after use. He used the Knife at times. In cross-examination, he first replies that he would wash the Knife thoroughly to make sure it was clean every time and had last done so at about 11 p.m. on 25 July 2011, his last working day in Sumac. A few moments later, he replies that he sometimes forgot to clean it. A moment afterwards, he replies that he had never cleaned it when working in Sumac. In my view, he is trying to prolong the time his fingerprint may have stayed on the blade prior to its being washed off by a colleague. 20.Defence counsel submits that there is just a little discrepancy in the date of employment between the defendant’s and DW1’s accounts so that the defendant’s alleged period of employment by Sumac is reliable. I note the discrepancy and I find DW1’s account credible and reliable. 21.I reject the defendant’s evidence where inconsistent with other evidence. On evidence of prosecution witnesses 22.PW1 is sure that the defendant worked for him for a week in November 2010, not anytime in 2011, because he got a new employee filling the post afterward. It was before New Year in 2011. He hired no one else afterwards. 23.Defence counsel submits that his memory may be unreliable as he has no record to aid his memory. I find PW1’s reference to the timing hired the new employee a reliable way to aid his memory. I accept his evidence that the defendant worked for him for a week in November 2010 and afterwards there was no contact between them. 24.Defence counsel submits that if this Court accepts that the defendant had worked in Sumac until 25 July 2011, the Thumbprint can be regarded as one legitimately left by him whilst at work. Defence counsel concedes, quite fairly in my view, that he can scarcely argue that the Thumbprint could have remained on the blade of the Knife if the defendant had already left Sumac 7 months ago. 25.Based on the defence case of last working in Sumac on 25 July 2011, defence counsel refers to a smaller, unidentifiable fingerprint at the same position on the blade. He submits that it can reflect someone’s, probably a colleague’s, fingerprint remaining there despite PW1’s work rule to have the Knife cleaned up after use. I understand that the smaller fingerprint forms no part of the prosecution case as, according to the PW3, its size was too small for identification purpose. It follows that it cannot be ascertained whether it came from an employee, a stranger or the defendant. There is no room for speculation in a trial and I find no relevance in this small fingerprint. 26.I find PW1’s entire evidence credible and reliable. Defence counsel does not challenge the evidence of PW2 and PW3. I also find them credible and reliable witnesses. Case as found 27.Defence counsel submits on the clash in dates between PW1 and the defendant/DW1. Earlier on I have expressly rejected the defendant’s evidence where inconsistent with other evidence. The dates mentioned by PW1 and DW1 can actually tally. I make the finding that the defendant had worked in Tequila from August to early November 2010 (as per DW1’s evidence), then a week in Sumac (as per PW1’s evidence), then from 30 November 2010 to 14 February 2011 in Il Maestro (as reflected by the contract of employment[6] and the defendant’s own evidence), and then from February to mid-April 2011 again in Tequila (as per DW1’s evidence). 28.The prosecution submits that the Knife was possibly both a tool for burgling and a valuable object for keep. That explains why he had laid his hand on it at first. I agree. On the one hand it was a tool hard and sharp enough and most user-friendly to him, a chef, and it was very expensive. On the other hand, this powerful tool had no place in a predominantly ransacking burglary and was too unwieldy to carry as a loot. There were good reasons for the defendant to eventually drop it onto the floor. 29.I have considered PW1’s evidence of having seen his staff wiping the Rear Glass-door 100 times in the 7 Months. I understand he only observed this when passing by each time. He cannot tell whether he had actually seen the cleaners wiping the positions of the Palmprints in any of the 100 times. The cleaners are not called as witnesses. The Palmprints were not large compared to the Rear Glass-door. One has to rely on probabilities to know how certain that the Palmprints would have been wiped off in the 100 times. With inadequate assistance in these aspects from the prosecution, I can but attach no weight to the Palmprints. 30.The irresistible inference is that the defendant had entered the premises of Sumac as a trespasser between 2:30 a.m. and 3 p.m. on 27 July 2011 and stole the cash and the cash register. All elements of the offence are proved beyond reasonable doubt. The defendant is convicted as charged.
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