HKSAR v. SUKHBIR SINGH

CACC 302/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 302 OF 2012

(ON APPEAL FROM DCCC NO. 335 OF 2012)

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JUDGMENT

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Hon McWalters J (giving the judgment of the court):

Introduction

1.  The applicant was tried in the District Court by Judge S. D’Almada Remedios on a Charge Sheet containing a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.  On 12 July 2012 he was convicted of this offence and on the same day he was sentenced to a period of 3 years’ imprisonment.  On 27 July 2012 he applied for leave to appeal both conviction and sentence.  However, at the hearing of the application the applicant abandoned his application for leave to appeal against sentence and it was thereupon dismissed.  At the hearing of the application for leave to appeal his conviction we reserved our decision.

The Trial

The prosecution case

2.  The prosecution case was a very simple one.  Madam Wong Suet-wa lived with her 18 year old son in a flat at Room A, Flat A, 1^st Floor, No. 33 Ha Heung Road, To Kwa Wan, Kowloon.  At the entrance to the flat there was a wooden main door and a metal gate. 

3.  On 9 January 2012 Madam Wong’s son left the house before her in order to go to work and he was still away from the flat when Madam Wong returned from work.  When Madam Wong herself left the flat to go to work she locked the wooden door but not the metal gate.  When she returned from work at about 9.30 p.m. she found her front door was open and there were signs of the flat having been ransacked.

4.  The flat consisted of one living room and two bedrooms.  The signs of ransacking observed by Madam Wong were that certain drawers of certain cabinets had been opened and some of the items of clothing within the drawers had been pulled out.  She said that the different pieces of furniture the drawer of which had been opened included the TV cabinet in the living room.  The photographs produced at trial did not accurately portray the scene that confronted her on her arrival home as she had closed some of the drawers before the police photographs were taken.

5.  Notwithstanding these signs of ransacking only two items had been taken from the flat and other items of value appear to have been missed by whoever was doing the ransacking.   The only two items missing from the flat were an old mobile phone that was no longer being used and a gold ring belonging to Madam Wong’s son.

6.  Madam Wong said she looked after her son’s ring because her son was still a very young boy.  She stored it in her bedroom inside a purse or wallet and this purse or wallet was placed in the first drawer of a bedside cabinet.  Madam Wong said that although the gold ring had been taken, the purse or wallet in which it had been stored had been left behind.  The ring was valued at about $8,000. Before the burglary the mobile phone had been placed on top of a computer in the living room.

7.  Although the front door of the flat was open there was no sign of a forced entry.  Even after the police investigation it was still unclear as to how the person who had taken the items from the flat had obtained entry to it. It was an admitted fact that there were prize marks on the wooden door but they had been made before Madam Wong moved into this flat.  It is unclear whether these prize marks would have made an unlawful opening of this door easier to effect or to effect without leaving signs of having done so.  However Madam Wong said in evidence:

“Actually, it was quite easy to open that door to my home. Even if you jammed in a card you might be able to open it.”

But Madam Wong had to concede that, in fact, she had never opened the door in this way and she did not know how the door had been opened. Furthermore there was a frame around the door which may have made unlawful entry by a card difficult.

8.  The only evidence that linked the applicant to the burglary of this flat was his fingerprint impression that was found on the inside front panel of a drawer of a cabinet in the living room on which the TV was placed.  The fingerprint was clear and readily identifiable as belonging to the applicant. That it was the applicant’s fingerprint was not disputed at trial.  It was also an admitted fact at trial that the applicant was present in Hong Kong on the day of the burglary and resided at Room D, 8^th Floor, No. 41 Ha Heung Road, To Kwa Wan, Kowloon.  Thus they were living in the same street in reasonably close proximity to each other.

9.  In respect of the TV cabinet in whose drawer the fingerprint had been found Madam Wong said she acquired it, together with her son’s bed, from a friend of a friend about a month after she moved into this flat.  She explained how her colleague arranged a van and driver to move the cabinet, bed and other things that were being moved into the flat.  She only had her colleague to help her but may have also had the use of a trolley.  It is her recollection that the driver looked Chinese and there was no assistant to the driver to help carry items.

10.  When she got the cabinet home it was her evidence that she cleaned it and it would appear she was quite thorough.  She said:

“A. Everything that I moved into my house I clean them and I clean them with disinfectant. I clean inside as well as the outside of things that I moved into my house.

Q. When you say you clean inside, can you tell us in detail what do you mean by inside of this cabinet?

A. Because actually the drawers can be pulled out completely, so for each drawer I took them out and took them to the bathroom to clean them.

Q. So did you clean all the interior of this cabinet, including the drawers?

A. Yes, I believe I have cleaned them all.

COURT: How do you clean them?

A    I use a piece of cloth to wipe and I use a water bucket.  I use disinfectant.  I use the water bucket to contain the disinfectant.  I use a piece of cloth to wipe inside.”

11.  By his cross-examination of Madam Wong Mr Beel, who appeared for the applicant both at trial and on his appeal, sought to establish two things.  The first, was the possibility that the applicant’s fingerprint may have come to be innocently placed on the TV cabinet drawer.  The second, which was purely an opportunistic response to the evidence that emerged at trial, was to lay the foundation for a suggestion that there may not, in fact, have been a burglary at all, but rather that the son may have fabricated the appearance of a burglary in order to acquire possession of his ring without his mother’s knowledge.

12.  The applicant was subsequently arrested and a video recorded interview was conducted with him.  In that interview the applicant claimed that he did not know Madam Wong and that he had never been to her flat.  However, he did say that he had previously worked for a transportation company as a light goods vehicle driver and in that capacity had frequently moved smaller items of furniture like the TV cabinet in which his fingerprint impression had been found.  The voluntariness of this record of interview was not challenged.

The defence case

13.  The applicant testified in his defence but did not call any other evidence.  He said he came to Hong Kong in 1999 and when asked to inform the court of his employment history from 2008 he said he was then working for a transportation company whose services were engaged by persons who wanted to move their furniture to a new home.  The company was called Fareed Transportation Company.  Then in 2009 the applicant went to India and stayed there for 1½ years, returning to Hong Kong near the end of 2010.  He then obtained employment as a van driver for a company that transported persons from the airport to the city.  He held this job for a year and thereafter he had casual work for a construction company.

14.  In respect of his 2008 furniture removal service he said he would occasionally have people accompany him to help lift heavy items.  He said the TV cabinet in which his fingerprint was found was similar to the items of furniture he used to transport, unsurprisingly, he could not identify this particular piece of furniture as one that he had transported.  He said that when carrying cabinets such as these he would sometimes first remove the drawers.

15.  He agreed he lived in the same street as Madam Wong but denied ever having gone to her building.  He denied entering her flat and stealing the mobile phone and gold ring from it.  It was an admitted flat that the applicant has no previous criminal conviction in Hong Kong.

The Reasons for Verdict

16.  The Judge identified the main issue in the case as whether by reason of the applicant’s fingerprint being found on the inside of a drawer of a cabinet in a flat, the prosecution had proved beyond reasonable doubt that he was the person who committed the burglary.  In that respect the judge said that the pertinent question was whether the applicant’s fingerprint was placed on the drawer before Madam Wong acquired the cabinet and placed it in her flat.  Crucial to the determination of this issue was whether or not the judge accepted and gave full weight to the evidence of Madam Wong that on moving the cabinet into her flat she had gone to the effort of cleaning it.

17.  There was really no reason for her to question the credibility of Madam Wong’s evidence on this matter and it was really just a question of what weight to give to it.  The judge said:

“By wiping the drawers I accept that she (referring to PW1) wiped all or at least the majority of the areas of the drawers, particularly the inside where they would be used by her.

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.”

18.  The judge, thereupon, concluded that had the applicant’s fingerprint been left on the drawer some four years previously it would have been disturbed by Madam Wong’s cleaning of the drawer and that this would have resulted in there remaining only a partial print or the print being wholly removed.  However, she noted the fingerprint that was found on the drawer was complete with no sign of being affected by any kind of cleaning of the drawer.  From this the judge concluded that the applicant’s undamaged complete fingerprint had been placed on the drawer panel after Madam Wong had acquired the cabinet.  She concluded that it could only have come to be placed on the inside of this panel of the drawer of the cabinet in the course of the applicant searching the premises as he was burgling them.

19.  Her conclusion that the applicant was guilty of burglary was, therefore, based upon her acceptance of the evidence of Madam Wong and by virtue of giving full weight to that evidence.  However, she nevertheless went on to consider whether, were she wrong in the conclusion she reached about the fingerprint based upon the evidence of Madam Wong, it was probable that the fingerprint could have come to be placed on the drawer by the applicant in the course of transporting this cabinet.  She came to the conclusion that the probabilities were against this having happened.  She listed the following matters as militating against such a likelihood:

“(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 drawers that the defendant moved but did not use a trolley to move it despite its comparatively large size.”

Grounds of Appeal

20.  There are two grounds of appeal.  The first is that the judge erred in finding that there was no dispute that Madam Wong’s premises had been burgled and thereby erred in law in analyzing and evaluating the evidence in a safe and satisfactory manner.  In support of this ground it is argued that the judge failed to properly evaluate the evidence as to whether or not the premises had been burgled and in so doing failed to properly evaluate the fingerprint evidence, thereby, approaching that evidence wrongly in determining the guilt of the applicant.

21.  The second ground of appeal is simply that in all the circumstances the applicant’s conviction is unsafe and unsatisfactory.

22.  This ground of appeal refers to the way the evidence came out as the trial progressed.  The defence had always been that on the assumption there was a burglary, a matter which the applicant was not in a position to contest, the person who committed the burglary, whomever it may be, was not the applicant. However, in the way the evidence unfolded at trial, defence counsel saw an opportunity to suggest that there existed the possibility that there may not have been a burglary at all as it may well have been the son who took the gold ring from his mother’s bedroom cabinet.

Discussion

23.  The ground of appeal relies for support upon a statement by the judge in the very first sentence of her Reasons for Verdict under a heading “Overview”. This opening sentence was:

“There was no dispute that Madam Wong Suet-wai’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.”

24.  This was accurate before the trial started but, as mentioned, in the course of the evidence unfolding, Mr Beel obtained enough by way of cross-examination to lay the groundwork for a submission that there may not have been a burglary at all.  But there was certainly no dispute that Madam Wong was telling the truth as she believed it to be; what Mr Beel was suggesting was that she may have been deceived into believing that a burglary had taken place by a person creating the appearance that the flat had been ransacked.  But the slightly loose description of the defence position does not mean that the judge was not aware of the defence case for she set it out later in her Reasons for Verdict. She said:

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

…

(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.”

25.  It is also clear from the language employed by the judge in describing Mr Beel’s submission, namely that “the prosecution has not proved it was the defendant who burgled the flat”, that she used the word burglary to describe the alternative scenario suggested by Mr Beel.  But Mr Beel’s scenario was itself highly speculative.  It was built on sand and could never provide the foundations for the inference he sought to draw.  All Mr Beel could point to was the fact that there were some curious features to this burglary that were not immediately explicable but this does not mean that that they could ground a reasonable inference that the son was responsible for the theft and indeed they could not.

26.  The judge was right to focus on the presence of the applicant’s fingerprint on the inside front panel of a drawer of the TV cabinet and determine whether that, in conjunction with the other evidence, was sufficient evidence to enable her to be satisfied beyond reasonable doubt that a burglary had taken place and that it was the applicant who had committed it.

27.  The speculative scenario proposed by Mr Beel could not detract from the inculpatory probative force of the presence of the fingerprint on the TV cabinet drawer once it was determined that the fingerprint came to be placed there after the time the cabinet was transported to Madam Wong’s flat.  For after the TV cabinet was put in her flat the applicant had no opportunity to come into contact with it.  The only opportunity he may have had before that time, on the evidence before the court, was when Madam Wong transported it to her flat.

28.  In these circumstances it is hardly surprising that the judge focussed on the evidence surrounding the transportation of the cabinet to the flat and what happened to it thereafter.  In this respect the evidence of Madam Wong is that the driver of the vehicle that was hired looked Chinese and not of other ethnicity; only she and her colleague carried the goods from the flat to the vehicle and then later from the vehicle to her flat, although they may have been assisted by the use of a trolley.  So, on her evidence they were not assisted by the driver of the vehicle and in any event the driver looked Chinese.  On her evidence there was no opportunity in the course of the removal process for the applicant’s fingerprint to come to be placed on the cabinet.  The fact that at the time the applicant was also working as a transportation driver, no doubt along with hundreds of other persons in Hong Kong at the time, is no reason not to place full weight on Madam Wong’s evidence.

29.  In addition to this part of Madam Wong’s evidence there is her testimony that she thoroughly cleaned the cabinet before using it.  Her cleaning efforts extended to removing the drawers and wiping them with a cloth soaked in a liquid containing disinfectant.  There is no reason not to believe this part of her evidence, especially as it is a natural thing for any person to do when acquiring second-hand goods.

30.  The fingerprint impression showed no signs of any damage at all.  It was complete and in pristine condition.  Thus, if it pre-dated Madam Wong’s cleaning efforts it could only have survived those efforts if, in the course of cleaning the drawer, Madam Wong missed this particular area of the drawer on which the fingerprint was located.  The judge rejected this possibility as being “inherently improbable” and on the evidence of Madam Wong she was entitled to do so.

31.  As a means of verifying this conclusion the judge went on to consider the probabilities of the applicant’s fingerprint coming to be placed on the drawer innocently and surviving there, undisturbed, to the day it was discovered by the police.  After a careful analysis of the coincidences that would be required for this to happen she rejected this as quite improbable.  In our view she was right to do so.  She said:

“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 the cabinet and that he was the burglar who stole the gold ring and mobile phone from PW1’s flat.

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

32.  From these comments it is clear that as she considered the evidence she had in mind Mr Beel’s alternative scenario that the taking of the ring was an “inside job” by the son.  But this alternative scenario was nothing more than a forensically manufactured suspicion unsupported by evidence. It could never amount to a reasonable inference and could not, therefore, detract from or displace the inference to guilt that inevitably flowed from the findings made in respect of the applicant’s fingerprint.  The judge, quite properly, did not allow it to distract her from the main task of determining when the fingerprint came to be placed on the drawer.

33.  We can find no fault in the analysis of the evidence by the trial judge, the findings she made or the conclusions she reached.  We find no merit in the grounds of appeal and dismiss the application for leave to appeal against conviction.