HKSAR v. Tsang Kai on

DCCC 1015/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1015 OF 2014

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Reasons for Verdict

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1.The defendant pleaded not guilty to one count of burglary. Particulars of the charge are that he on 10^th January 2014 entered the premises Flat E, 13^th floor, Crystal Court, No.6 Man Wan Road, Ho Man Tin, Kowloon (“the flat”) as a trespasser and stole therein a number of items.

Background

2.Ms. Wong resides at the above address. On the evening of 10^th January, Ms. Wong’s elder sister found the flat burgled. Police officers attended the scene. Exhibits were seized and sent for forensic examination and analysis. DNA sample from the defendant matches the DNA found from a wooden jewellery box that was in the flat.

3.It is the prosecution’s case that the DNA match proves that the defendant had had contact with the wooden box, and that given the circumstances of the location and storage of the box, the only irresistible inference is that the defendant had been inside the flat as a trespasser and handled the wooden box, and that he had stolen the particularized items.

Issues

4.The prosecution must prove beyond reasonable doubt the correctness of the DNA analysis. The prosecution must persuade the court to draw the inference that the sample on the box was left by the defendant while he was on the premises as a trespasser. The prosecution must then persuade the court to draw the inference that the reason the defendant was present on the premises and handled the box was that he was intending to steal on the premises. Lastly, the prosecution must persuade the court to draw the inference that it was in fact the defendant who had stolen the items that had gone missing after the burglary.

5.It was, at first, the defendant’s case that in the prosecution’s DNA sampling evidence, the analyst did not take into consideration the possibility that it was the defendant’s siblings or relatives who had contributed the DNA sample on the wooden box, which would have lowered her calculation of the Random Match Probability enormously to that of one in the tens of thousand instead of one in 11.7 quadrillion (one quadrillion is 1 followed by 15 zeroes).

6.After the prosecution’s rebuttal evidence and a new match probability was calculated by the forensic analyst having taken into consideration the possibility of siblings, uncles, nephews and first cousins, which was one in 1.81 million, 1 in 11.0 trillion and 1 in 811 trillion respectively, the defendant no longer relied on the above line of attack against the DNA analysis evidence.

7.In the closing submission of Ms. Cheung, she focused on the prosecution’s burden to prove beyond reasonable doubt that the DNA found on the wooden box came directly from contact with the defendant. It is the defendant’s submission that there is a possibility that the defendant’s DNA was transferred indirectly onto the wooden box through an intermediary without having the defendant had direct physical contact with the box.

8.It is also the defendant’s case that the prosecution had failed to prove beyond reasonable doubt the chain of evidence in relation to the wooden box and that it had not been contaminated while in the custody of the Police.

Admitted facts

9.The following facts are admitted pursuant to section 65C of the Criminal Procedure Ordinance, Cap.221. The defendant was arrested and cautioned at 2:10 pm on 8 October 2014 at his home in Tsui Ping Estate, Kwun Tong. Two buccal swaps were taken from the defendant on 9October 2014. The defendant was in Hong Kong on 10 January 2014, the day the alleged burglary had taken place.

Summary of prosecution evidence

PW1 Ms. Wong Kei-wang

10.Ms. Wong was a resident at the flat. She left the flat on the morning of 10 January. At around 7:20 pm, she received a phone call from her elder sister who was staying with her, telling her that they had been burgled. Ms. Wong arrived home at around 8 pm to find her place ransacked, as depicted in the photos of exhibit P-2, photos 1 to 18. The wooden door that can be seen to have been damaged in photos 3, 4 and 5 was intact when she left home.

11.Ms. Wong was specifically asked about a wooden box (exhibit P-1). It is her evidence that the box belongs to her mother who has had it for over 20 years and had always been kept in her mother’s room, inside the plastic box which can be seen opened on the bed in photo 13, together with other boxes. The big plastic box was not on the bed when Ms. Wong left the flat in the morning.

12.Ms. Wong did not touch anything while waiting for the Police to arrive. She did not touch her mother’s box before the Police picked it up.

13.Ms. Wong did not employ any part or full-time domestic helper. She had never invited the defendant into her flat, nor was were any renovation work being done in the flat. She never gave consent to anybody to enter the flat to take anything on 10 January 2014.

PW2 Police officer Ng Tai Shing PC9682

14.Officer Ng was the Police officer responsible for the seizing of exhibits and in particular the wooden box, exhibit P-1, that was later taken to be analysed by government forensic analyst and found to carry the DNA of an unknown male. This DNA sample would later be found to match that of the defendant.

15.Officer Ng was the officer who took the photos in the P-2 photo album. Photo 13 shows the state of the bedroom as he first saw it.

16.It is officer Ng’s evidence that he was wearing surgical gloves when seizing exhibits from the crime scene. During a vertical sweep of the building, other Police officers  found a crowbar in the rear staircase of the 16^th floor (as shown in photos 20 and 21) and it was officer Ng who seized it as an exhibit. After he did that, the disposable surgical gloves that he was wearing was dirtied and so he changed into another pair of brand new disposal surgical gloves before dealing with the other exhibits, in particular when handling the P-1 wooden box in question.

17.The wooden box was found among the pile of things on the bed in photo 13. Officer Ng later took out the wooden box and put it on the bed to take a photo (photo 26). The wooden box, another box and the crowbar were the only exhibits he seized.

18.It is officer Ng’s evidence that he seized the wooden box by putting it in a brand new government plastic bag, stapled it close and then had it transferred back to his office. When there, the bag together with its contents and other exhibits were then locked in his office drawer. He was the only person with the key to the drawer.

19.The government plastic bag was a normal government exhibit bag, not a tamper proof one. It was taken from a cabinet in officer Ng’s office before he left for the scene that night. The cabinet was usually closed. The cabinet was not locked but only members of his team would use those bags.

20.Officer Ng did not use a tamper proof bag because he did not think the exhibits were worth a lot, although he did seize the box with the intention to send it to be forensically examined. It is his evidence that he had not opened the government plastic bag after it was stapled close, because they were asked by the government analyst to have those items properly packed when handing them over for analysis.

21.The wooden box, together with the crowbar and the other jewellery box seized from the premises were then delivered to the government laboratory in Ho Man Tin for analysis on 17 January, where he handed over the items to a staff of the laboratory. Between the seizing of the exhibits and their delivery to the laboratory, they were always in officer Ng’s custody.

PW3 Forensic Analyst Ms. Wong Lai Man

22.Ms. Wong gave evidence as an expert forensic analyst. She was the person who conducted DNA tests on the three items that PW2 officer Ng had delivered to her laboratory.

23.The 2 reports prepared by Ms. Wong together with a report prepared by a Dr. Wun (P-12) were read into evidence pursuant to section 65B of the Criminal Procedure Ordinance, Cap.221. Dr. Wun did not give evidence in court but her expertise was not challenged and her statement is taken to be the opinion of an expert.

24.According to Ms. Wong, no DNA material were found on the crowbar. The DNA material found from the other jewellery box were compromised and therefore of no evidential value.

25.Ms. Wong was however able to obtain DNA material from the P-1 wooden box (itemized as “GPY713” in her reports). She cannot say where exactly the sample came from, that is to say, whether it was from the outside or inside of the box, except that the sample did come from the wooden box. The box was inside a heat sealed bag when it came to her.

26.There was however no match to any individual in the laboratory DNA database and so the results of the DNA analysis were recorded into the DNA database first, to be subjected to periodic searches against the database held. If a match is found, the Police officer in charge of the case will be informed through the Criminal Records Bureau.

27.Meanwhile, buccal swaps were obtained from the defendant and analysed by Dr. Wun. The results were referred to Ms. Wong for comparison with DNA typing results obtained from the crime scene exhibits.

28.Ms. Wong sets out the findings of her comparison of the DNA sample taken from the wooden box and those from the defendant in her report in P-10. It is her expert opinion that the DNA found on the wooden jewel box (GPY713) could have originated from the defendant.

29.At the Appendix of her report, Ms. Wong sets out the DNA systems she used to conduct the DNA matching exercise. She explained that RMP stands for Random Match Probability. In the defendant’s case, the probability of a random person having a similar DNA systems match is one in 11.7 quadrillion (1 followed by 15 zeroes).

30.It is Ms. Wong’s evidence that the sample from the wooden box had not been contaminated.

31.In cross-examination, Ms. Cheung for the defendant asked questions about calculation of the RMP after taking into consideration the possibility of siblings and relatives. Ms. Wong agrees that to do so would yield a different and likely higher probability of matches. Articles[1] were cited to Ms. Wong and she was asked for an opinion on the RMP figures of 1 out of 12,379 and 1 out of 10,000 when siblings are factored in. Ms. Wong refuses to agree or disagree with the figures, stating that their calculations employed different methods and profiles.

32.Ms. Wong was also asked questions about the source of the DNA sample she was able to lift from the wooden box. Ms. Wong’s evidence is that she had used cotton buds to swap both the inside and outside of the box and was able to obtain DNA material from that process. She was however unable to say whether the DNA material was on the outside or inside of the box, or what the nature of the material was. Ms. Wong however agreed with counsel that a possible source would be dandruff.

33.When Ms. Wong was later recalled to give rebuttal evidence for the prosecution (see below), she tendered another report (P-13) which contained a revised calculation of the match probability after factoring in siblings and relatives.

Summary of defence evidence

34.The defendant understood his rights and elected not to give evidence in his own defence. He elected to call his elder sister as a defence witness.

Ms. Tsang Choi Ying

35.Ms. Tsang says she is the elder sister of the defendant and gave evidence that the defendant is the youngest of 7 siblings of 3 male and 4 females. Including the defendant, his brothers and the defendant’s uncles and their offspring, there are 15 males in their family tree. Ms. Tsang was not cross-examined by the prosecution.

Rebuttal evidence

36.At the end of the defence case, the prosecution applied to re-call their forensic analyst Ms. Wong to tender an updated report, specifically to calculate the Random Match Probability based on the newly available evidence given by the defence witness as to the number of siblings and relatives that the defendant has. It is not disputed that this evidence was not known to the prosecution previously.

37.Mr. Marray for the prosecution submits that the evidence that the defendant has siblings and relatives and that he was relying on the defence of challenging the RMP in Ms. Wong’s 2^nd report was not reasonably foreseeable.

38.Ms. Cheung for the defendant cited 3 cases and an article from Bruce and McCoy’s Criminal Evidence in Hong Kong[2] to support the proposition that the defendant’s line of defence was reasonably foreseeable and therefore the prosecution should not be allowed to call rebuttal evidence.

39.In relation to the English and Australian cases of Harold Norman Day[3] and J. J. McCarthy[4] cited by Ms. Cheung, they both have very different factual backgrounds and merely confirm the proposition that, when considering whether the prosecution should be allowed to call rebuttal evidence, one significant factor is whether the previously unknown evidence was actually reasonably foreseeable.

40.Mr. Marray does not dispute the legal principle behind the cases, just that in our present case, it was not reasonably foreseeable that the defendant would be challenging the RMP which did not take into consideration the possibility of siblings and relatives.

41.As for the District Court case HKSAR v Ng Chun-fai, DCCC 362/1011, Ms. Cheung cited it to show that in at least one case in 2012 in the District Court, a similar tactic was adopted by the defence in challenging the RMP in a DNA sample report, therefore, the prosecution must be held to be able to reasonably foresee the defendant in our present case mounting the same challenge.

42.In relation to our present case, at the end of the evidence of the defence witness, it became clear that it is the defendant’s case that because he has siblings and relatives, the RMP stated in Ms. Wong’s 2^nd report cannot be correct. The RMP should be much higher, that is to say, there is a higher probability that the DNA sample on the wooden box came from someone other than the defendant.

43.During the cross-examination of Ms. Wong by the defence, there were questions about dandruff being the possible source of the DNA sample and how the bag containing the wooden box was only stapled close but not sealed, thereby increasing the possibility of transfer of DNA sample from other sources.

44.There were also questions about using a different population sample to calculate the RMP. Ms. Wong agreed that it would be a different figure but did not agree that the RMP would be as suggested in the articles quoted by the defence, which are of around one in 12,379 or one in 10,000 when siblings are taken into consideration.

45.The new RMP, after taking into consideration the specific information provided by the defence witness will no doubt be different to the one as stated in Ms. Wong’s second report. I found that the prosecution could not have foreseen this line of defence. I found that in the interest of justice and based on the circumstances of the disclosure of the defence’s evidence, the prosecution should be allowed to recall Ms. Wong to rebut the evidence of the defence that the RMP would be similar to those as stated in the quoted articles given the siblings and relatives number of the defendant.

46.Ms. Wong was then recalled and her 3^rd report was read into evidence pursuant to section 65B of the Criminal Procedure Ordinance. It is her evidence that the match probabilities that a relative of the defendant would have the particular combination of DNA types as obtained from the wooden jewel box (P-1), given the defendant having the matching DNA types, that is to say, the probability that the wooden box sample was from the relatives instead of the defendant, are as follows.

47.From siblings, 1 in 1.81 million; from an uncle or nephew is 1 in 11.0 trillion; and from a first cousin is 1 in 811 trillion.

Findings and Analysis

48.It is for the prosecution to prove beyond reasonable doubt the elements of the offence. The defendant had elected not to give evidence in his own defence and there is to be no adverse inference from that. On the other hand, it means that there is no evidence from the defendant himself to undermine, contradict or explain the evidence put before the court by the prosecution.

49.I find all 3 prosecution witnesses honest and reliable witnesses. I also find the defence witness honest and reliable, the defendant does have siblings, uncles, nephews and first cousins as she described.

50.The only evidence against the defendant in this case is the fact that his DNA matches that of the DNA found on the wooden box, P-1.

51.According to the learned editors of Archbold Hong Kong 2015, at paragraph 14-11, there are two distinct questions to be asked when dealing with DNA profiling evidence. They are:

(a)What is the probability that a particular individual would match the DNA profile from the crime sample, given that he is innocent? And

(b)What is the probability that an individual is innocent, if he matches the DNA profile from the crime sample?

52.The learned editors also referred to R v Doheny and Adams [1997] 1 Cr App R 369, CA, where guidelines were laid down to ensure the proper use of DNA profiling evidence. For our present purpose, I refer to the suggested direction to the jury:

“Members of the jury, if you accept the scientific evidence called by the prosecution this indicates that there are probably only four or five white males in the United Kingdom from whom that semen stain could have come. The defendant is one of them. If that is the position, the decision you have to reach, on all the evidence, is whether you are sure that it was the defendant who left that stain or whether it is possible that it was one of that other small group of men who share the same DNA characteristics.”

53.I find first of all that I can place full weight on the evidence of Ms. Wong the forensic analyst. I find that the defendant’s DNA sample do match that of the DNA sample found on the wooden box, in the manner as expressed in the table at the Appendix of her report (P-10).

54.In relation to the first question mentioned above, I find that, even after taken into consideration the presence of siblings, the probability that a particular individual would match the DNA profile from the wooden box DNA sample, given that he is innocent, is that of one in 1.81 million. This is a much bigger number then 1 in 11.7 quadrillion, but still represents a very low possibility of the sample being from someone other than the defendant.

55.In relation to the second question, I find first of all that there is no evidence that any of the defendant’s siblings or relatives had the opportunity to come into contact with the wooden box. I find that the wooden box had been in the possession of PW1’s mother for over 20 years and was put inside another box for safe keeping. I find it inherently improbable that the defendant’s DNA might somehow be indirectly left on the wooden box given the circumstances.

56.I find PW2 officer Ng handled the exhibits that he seized from the crime scene as he had described. He had taken some new government plastic bags from the cabinet in his office at the Police station before leaving for the flat. He wore disposable surgical gloves when seizing the crowbar. He then disposed of those gloves and put on a new pair of gloves to deal with the wooden box. He put the wooden box into a new government plastic bag and then stapled it close.

57.Ms. Cheung did not cross-examine as to how officer Ng stapled close the bag. I find that it is clear from officer Ng’s evidence that he had always intended the exhibits to be sent for forensic analysis, and it is clear that he was well aware that the government laboratory staff had requested them to deal with the exhibits properly. I further find that it is possible to properly staple close a plastic bag so as to avoid contamination by folding the opening of the bag a few times before stapling close the bag, if one so chooses. I find that I can accept officer Ng’s evidence that the contents of the government plastic bag had not been contaminated.

58.I further find that it was inherently improbable that the defendant’s DNA would be able to come into contact with the wooden box once it had been put in the government plastic bag. There is no evidence that the defendant had come into contact with the plastic bag or its contents. 

59.There is also no evidence that the defendant had been to the premises of the government laboratory. There is no suggestion that the defendant’s DNA sample had, prior to the examination of the wooden box, been inside the laboratory premises. In fact, it was because of the fact that the defendant’s DNA profile was not in the laboratory database that Ms. Wong was not able to find a match at first.

60.The bag containing the wooden box was heat sealed when it came to Ms. Wong for her analysis. The only irresistible inference was that it was heat sealed by the staff of the government laboratory. I accept Ms. Wong’s evidence that she found that the DNA sample from the wooden box had not been contaminated.

61.I find that it is inherently improbable that the defendant’s DNA would be indirectly placed on the wooden box while it was with the government laboratory.

62.Having directed myself along the line of the suggested direction mentioned above, I find that the answer to the second question is that, given the scientific evidence and circumstances surrounding the case, the defendant is the person who had left the DNA sample on the wooden box and, for the following inferences, he is not innocent.

63.I find that it is an irresistible inference that the defendant was inside the flat when he had direct contact with the wooden box. I find that he was inside the flat as a trespasser. I find it is an irresistible inference that having entered as a trespasser, he intended to steal, and did steal from the flat. I find that it is an irresistible inference that he had stolen the items particularized in the charge.

64.I find the defendant guilty as charged and convict him accordingly.