HKSAR v. Sukhbir Singh

DCCC335/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 335 OF 2012

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REASONS FOR VERDICT

1.Overview

There was no dispute that Madam Wong Suet-wa’s (PW1) flat (the premises in the charge) was burgled and the defendant’s fingerprint was found in one of the drawers of her living room cabinet. PW1 does not know the defendant nor has she ever permitted him to enter her premises.

2.As a result of the defendant’s fingerprint being found inside one of the drawers in PW1’s flat the defendant was charged with the offence of burglary.  He has pleaded not guilty to the charge.

3.Brief summary of prosecution case and defence case

When PW1 returned home in the evening on 9 January 2012, she found the front door to her flat open, signs of ransacking and her mobile phone and gold ring missing. She immediately made a report to the police. They arrived at the flat shortly after and lifted fingerprints.

4.The defendant’s right fore index finger was one of the fingerprints lifted from one of the drawers of a cabinet in PW1’s living room.  

5.The cabinet and drawers were not obtained by PW1 when they were brand new.  She acquired them from her colleague’s friend’s house in or about November 2010. 

6.The defendant’s case was that he had never been to PW1’s flat. 

7.The defendant explained that his fingerprint may be found on PW1’s cabinet drawer because he may have touched this drawer sometime previously in 2008 or early 2009 when he used to work as a driver cum delivery worker moving furniture.  

8.The defendant said he is unable to say or identify that this is the exact cabinet or drawers that he helped move previously but he said that he has moved similar cabinets to the cabinet belonging to PW1 and this may be one of them as his fingerprint was found on it.

9.The issues

The main issue before the court is whether by reason of the defendant’s fingerprint being found in the drawer of the cabinet in the flat have the prosecution proved beyond all reasonable doubt that he was the person who committed the burglary.

10.In considering the above issue, the pertinent question is whether the defendant’s fingerprint was placed on the drawer before PW1 acquired and moved the drawer and cabinet into her flat or after. 

11.Evidence

The prosecution called five witnesses in support of the charge. PW1 Madam Wong the tenant of the flat, PW2 DPC 7757 the police officer of the Kowloon City District Investigation Team, PW3 Sgt 2619 the officer who lifted the fingerprint from the drawer, PW4 DSSGT 22504 the fingerprint expert and PW5 DPC 51170 a police officer who took photos of the flat. Generally their evidence was not greatly challenged by the defence.

12.The defendant elected to give evidence.  He is of clear record.  He called no defence witnesses.  I have given myself the requisite warnings as stated in the cases of Berrada and Vye on the defendant’s good character. 

13.I shall not reiterate the evidence of each of the witnesses.  I set out below the evidence of PW1 and the defendant and consider relevant remaining evidence in the analysis. 

14.PW1’s evidence

PW1 all along lived at the flat with her son who at the time of trial was 18 years old. She moved into the flat in or about October 2010.

15.In the morning of 9 January 2012, PW1 left for work.  Her son had already left and no one else remained in the flat.

16.PW1 did not lock the outer metal gate but only locked the main wooden door of her flat.  She did not lock the gate because it covers not only her door, but also her neighbour’s, so she usually leaves it unlocked.

17.PW1 stated that her building does not have a main gate or locked door at the entrance of the building preventing entry nor does it have a security guard on duty.  Anyone can enter the building from the street level and freely access the staircase leading to the flats within.

18.PW1’s flat consists of a living room, two bedrooms, a bathroom and a kitchen.  She occupies one bedroom whilst her son occupies the other.  

19.When PW1 came home from work at about 9.30 pm on 9 January, she noticed that the door to her flat was open.  She stated that upon entering she saw that her home was messy and it looked as if someone had ransacked her flat.

20.PW1 does not know how someone opened the door as there was no sign of forced entry.  The wooden door already had damage to the edge of the door frame near to the door lock (see exhibit P2 photo 2).  She said the damage was there when she rented the flat. 

21.Upon inspection of the flat, PW1 noticed that a gold ring and a mobile phone had been stolen from the flat.  PW1 admitted that nothing else including jewellery left on top of her bedroom cabinet had been taken from the flat, despite other cabinets and drawers showing signs of being opened.  She then notified the police of the burglary.

22.The mobile phone that was taken was PW1’s old mobile phone that she no longer used. She bought the phone for $8,800.  PW1 admits that the phone would be worth considerably less now about $2,000.

23.The gold ring that was stolen had been a gift to PW1’s son from her mother-in-law but PW1 stated that she had kept possession of the ring because she was afraid her son would be careless and lose the ring.  The gold ring is valued at $8,000.

24.PW1 had stored the gold ring inside a small purse or wallet, which itself was stored in the third drawer of a cabinet in her bedroom.

25.PW1 stated that her jewellery was stored in a box on top of the cabinet in her bedroom where the gold ring was stolen from.  She only stored jewellery that she actually wore on a daily basis in this box.  That is why she kept the gold ring in a separate location.

26.PW1 said that the cabinet in her living room was used to store various things and also where her television was placed upon.  The cabinet which she still has and uses, has four drawers (see exhibit P7 photos 4 and 7).  

27.PW1 stored DVD’s in the top drawer, cables and screws in the second drawer from the top (where the defendant’s fingerprint was found), socks in the third drawer, and plastic bags in the fourth drawer.

28.PW1 said that the second drawer is opened infrequently since it stores items that are not needed very often.  Each drawer has a knob that is used to pull open the drawer.

29.PW1 also stated that only she and her son use the cabinet.  No one else would have used or had reason to use the cabinet since the cabinet was placed in her flat in November 2010.

30.The cabinet was not brand new.  It was given to her by her colleague’s friend.  PW1 thought the cabinet was about 80-90% new when she collected it from her colleague’s friend’s house. 

31.PW1 obtained the cabinet after moving into the premises in about November 2010. 

32.She and her colleague hired a truck to help them move the cabinet from her colleague’s friend house to her flat.  The driver of the truck appeared to be Chinese and spoke Cantonese with PW1 and her colleague.  The driver did not assist with the actual moving or carrying of the cabinet.

33.PW1 said after she moved the cabinet into her flat she cleaned it.  She used a cloth with water and disinfectant to wipe the inside and outside of the cabinet, including every drawer.

34.The defendant’s evidence

The defendant came to Hong Kong in 1999 and has a Hong Kong ID card. He is married and has a 4 ½ year old son. He is of clear record. He currently works as a delivery driver for an Indian provisional store earning $400 per day. He works six days a week, never on Sunday.

35.In 2008, the defendant worked for a transportation moving company, called Fareed Transport Company.  The company helped people move their belongings when moving to a new home or flat.  The company mostly moved furniture. The defendant worked for this company for 10-11 months, starting around February 2008.  Thus finishing in or around January 2009.

36.Principally, the defendant was the driver, he would drive the vehicle that delivered the furniture.  However part of his job was also to help load the furniture into the truck.  This involved carrying furniture out of the flat and into the new flat as well.

37.The defendant stated that he had moved lots of furniture that looked similar to PW1’s cabinet in her flat where his fingerprint was found.  He however cannot identify that PW1’s drawers and cabinet was the exact same drawer and cabinet that he had moved.  It was his deduction that it was the same draw as he had never been to PW1’s house. 

38.The defendant said when moving cabinets he would sometimes remove the drawers before moving the cabinet, sometimes they would leave the drawers in the cabinet.  

39.The defendant also stated that he wear gloves about 60% of the time when moving furniture, at all other times he would not wear gloves.  When moving furniture he also stated he would sometimes use a trolley to take the furniture in and out of buildings.

40.The defendant denied ever entering PW1’s building or entering her flat and stealing the gold ring or mobile phone from the premises.

41.The defendant gave the same account as above in his video recorded interview the day after his arrest on 15 March 2012.

42.Submissions

Mr Trevor Beel counsel for the defendant made a number of submissions to aver that the prosecution had not proved beyond a reasonable doubt that the defendant had committed the offence of burglary. I have considered all his submissions but have only set out the more significant submissions in my analysis. For those that I have not set out it does not mean I have not considered them.

43.Mr Beel submitted that the prosecution had not proved that it was the defendant who burgled the flat as :-

(a) there was every possibility that the defendant’s fingerprint was made on the drawer before the cabinet and the drawer were acquired by PW1,

(b) The fingerprint was still there on the drawer some 4 years later after the defendant touched the drawer as it had not been disturbed either by being wiped out or damaged by anyone or anything,

(c) Although the flat looked as if it had been burgled when PW1 returned home it was not the defendant who had burgled the flat but probably PW1’s son who had stolen the gold ring and mobile phone,

(d) Although there was no direct evidence it was PW1’s son, the inference could be drawn as :-

(i) there was no sign of breaking and entering of the main wooden door,

(ii) it was not possible for the defendant to use a card to open the lock of the wooden door as it was protected with a frame and

(iii) if it was a burglar intending to steal, the burglar allegedly the defendant, would not have left unhidden valuable jewellery in the flat but would have stolen that too.

Analysis

44.When was the defendant’s fingerprint placed on the drawer?

Was the defendant’s fingerprint left on the drawer before PW1 acquired the cabinet or after? If it was before, the benefit of the doubt must be given to the defendant and he should be acquitted of the charge. If it was after then the only irresistible inference to be drawn is that he was the burglar.

45.The defendant’s case is that his fingerprint was left in the cabinet drawer before PW1 acquired the cabinet.

46.PW1 acquired the cabinet in or about November 2010.  On the defendant’s evidence his fingerprint must have been placed on the drawer sometime about 1 – 2 years (between February 2008 to January 2009) prior to PW1 obtaining the cabinet.  Four years later (January 2012) his fingerprint still remains there.

47.The fingerprint expert PW4, stated that it was possible that the defendant’s fingerprint may still be there on the drawer some four years later or many more years later provided it has not been “disturbed.”  PW4 explained that a fingerprint could be described as disturbed if it was affected by weather, temperature, humidity, repeated touching by different persons or objects or by wiping.  

48.In a nutshell PW4 said if a fingerprint was disturbed the fingerprint would be damaged.  That is it would not be a complete fingerprint i.e. only part of a print and not a complete print or it would be completely wiped off when no fingerprint could be lifted. 

49.The drawer where the defendant’s fingerprint was lifted was wooden.  PW4 gave undisputed evidence that if a fingerprint left on wood was wiped by a cloth using water and disinfectant, the fingerprint would be severely damaged or more likely to be completely wiped away. 

50.PW4 stated that the defendant’s fingerprint that PW3 lifted from the second drawer of the cabinet was in a complete undamaged form.

51.On the assumption that the defendant’s fingerprint was made about four years prior to January 2012, was there evidence of the defendant’s fingerprint being disturbed?

There was evidence that the defendant’s fingerprint left on the drawer some four years ago when he was a delivery worker was disturbed. PW1’s evidence was that she cleaned the inside and outside of the cabinet and its drawers by wiping them with a cloth using water and disinfectant in about November 2010 when she acquired it.

52.I rejected Mr Beel’s submission that there was no evidence that PW1 actually wiped the second drawer and the exact area where the defendant’s fingerprint was found. 

53.The fingerprint was found on the inside front panel near the top of the second drawer (see: - exhibit P4).  This location was not an obscure location of the drawer such as the back of the back panel where PW1 may not have cleaned.

54.Although PW1 did not point out specifically which part of the drawer she had wiped, PW1’s evidence was that she wiped the drawers.  By wiping the drawers I accept that she wiped all or at least the majority of the areas of the drawers, particularly the inside where they would be used by her. 

55.I found it to be inherently improbable that when wiping the drawers PW1 missed that very area of the drawer where the defendant’s fingerprint was found. 

56.I was satisfied that if, the defendant’s fingerprint was left on the drawer some 4 years ago before PW1 acquired the cabinet the defendant’s fingerprint was disturbed by PW1 wiping the drawer. The effect on the fingerprint as stated by PW4 would be that it would either be part of a print or it would be wholly wiped out and no fingerprint would remain.  However contrary to the effect of wiping, the defendant’s fingerprint was complete and thus not wiped at all.

57.In the circumstances and on all the evidence I was satisfied that the defendant’s undamaged complete fingerprint was made on the drawer after PW1 acquired the drawer and cabinet.  It was made on 9 January 2012 when the defendant had entered as trespasser into the home of PW1 and stole the gold ring and mobile phone. 

58.Was it inherently probable that the defendant touched this drawer belonging to PW1 before she obtained it?

In view of my above finding it is unnecessary for me to go on to make any further considerations however, if my finding was incorrect I ask myself if it is inherently probable that the defendant, during his time with the moving company, could have come into contact with the drawer of this cabinet before PW1 acquired it?

59.On the following facts I was satisfied that it was inherently improbable when looked at either individually or together on the evidence before me that the defendant’s fingerprint was put on the drawer before PW1 acquired it :-

(a) Out of the numerous drawers and cabinets perhaps hundreds or thousands similar to PW1’s in Hong Kong, the defendant would randomly, by chance and pure coincidence have come into contact with this very drawer and cabinet which ended up in PW1’s home,

(b)The defendant’s fingerprint remained undisturbed some 4 years after it was made despite PW1 and her son opening the drawer though infrequently and having used the drawer to store cables and screws,

(c) that at the time when the defendant came into contact with this very drawer, fortuitously at the time he was not wearing gloves,

(d)when the defendant touched this drawer it was coincidentally during the 40% of the time he was not wearing gloves when delivery furniture,

(e) this was one of the cabinets that the defendant took out the drawers and did not leave in the cabinet when it was moved and

(f) this was one of the cabinet and draws that the defendant moved but did not use a trolley to move it despite its comparatively large size.

60.Conclusion

In the circumstances and from the above analysis I found that the defendant’s fingerprint was placed on the drawer after PW1 acquired the drawer and cabinet and that he was the burglar who stole the gold ring and mobile phone from PW1’s flat.

61.It follows I found no merit in Mr Beel’s submissions that it was not the defendant who burgled the flat. 

62.I was satisfied on all the evidence before me that the prosecution had proved beyond a reasonable doubt that the defendant was guilty of the charge against him of burglary.

Ms Janice CHEUK, Public Prosecutor, for Prosecution

Mr. Trevor BEEL instructed by Messrs Herman H.M. Hui & Co. (DLA) for the Accused