HKSAR v. WONG WAI LEUNG

CACC494/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 494 OF 2003

(ON APPEAL FROM DCCC NO. 731 OF 2003)

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court):

1. On 5 November 2003, the Applicant was convicted in the District Court by H H Judge Whaley on a charge of burglary. On the same day, he was sentenced to 33 months' imprisonment. By a Notice of Application dated 8 November 2003, the Applicant now seeks leave to appeal against conviction.

2. The burglary charge involved the Applicant having on 31 January 2003 burgled (with two others) a flat in a building in Sham Shui Po, Kowloon. The burglars stole a gold dragon, a television set, cash of HK$2,000, cash of ￥90,000, a watch, a diamond ring, a computer notebook, two digital cameras, two video cameras, a mini discman and two bags. The value of these items was said to be in the region of $165,000. The victim of the burglary, the occupant of the flat, had gone to Thailand the day before. The flat was ransacked, the presence of dogs being no deterrent.

3. The trial took place on 4 November 2003. The judge heard testimony from the victim, his sister and the security guard in the building who had seen three persons opening the rear door of the building carrying a TV set.

4. The only evidence against the Applicant was that his right thumb print was found on a cosmetics box which was kept in a plastic container in the drawers next to the victim's bed. The victim also testified that the Applicant was unknown to him. The judge found that the only reasonable inference that could be drawn in the circumstances was that the Applicant was present in the victim's flat on 31 January 2003 and had left his thumb print on the cosmetics box in the course of the burglary there.

5. In his Perfected Grounds of Appeal against conviction, the Applicant repeats essentially the same point advanced by his counsel at trial, namely, that it would be wrong to convict if the existence of the thumb print was open to a plausible but innocent explanation. Put as a matter of law, where there are two plausible explanations or inferences that can be drawn, one consistent with innocence, the other with guilt, the Applicant must be given the benefit of the doubt. The judge expressly recognized this principle.

6. In his written submissions and before us today, Mr Joseph Tse emphasized the following points:

(1) The thumb print was the only evidence adduced against the Applicant. He was not otherwise linked to the premises in question.

(2) There appears to have been no evidence of the Applicant's prints found on any object in the premises other than the cosmetics box (although we have not seen any evidence as to the fingerprinting exercise that was actually carried out on the premises).

(3) Although the victim gave evidence that he bought the type of cosmetics products (contained in the box) every six months from Watson's, there was no evidence as to when he bought the particular box on which the Applicant's thumb print was found. For all that was known, the box could have been purchased recently or a long time ago.

(4) So, Mr Tse submits, the Applicant's thumb print could have been put on the cosmetics box when it was handled at Watson's (whenever that may have been). Coupled with the absence of expert evidence as to the age of the thumb print and of any evidence from Watson's itself as to how the box was displayed and other matters, there must be a reasonable doubt. The point being made was that there must be a reasonable possibility that the box in question could have been handled by many people including the Applicant when it was on sale at Watson's.

7. We are unable to accept these submissions:

(1) As stated above, the judge correctly recognized the legal principle earlier identified and indeed there is no complaint about this, only his application of it.

(2) 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 on 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. Coupled with the evidence that the Applicant was a stranger to the victim and, as Hartmann J pointed out in the course of argument, the cosmetic box had been handled in the course of the burglary, the further inference that can be reasonably drawn is that the Applicant was a burglar.

(3) Mr Tse referred us this morning to the case of R v Castleton, 3 Cr App R 74 (which Miss Shine relied on in her written submissions) in support of his arguments, but the relevance of that case lies in the fact that the court emphasized the importance of dealing with the actual evidence adduced at trial and not with speculative possibilities.

8. For the above reasons, we see nowhere that the judge has erred. The application for leave to appeal against conviction is therefore dismissed.