HKSAR v. CHIU WAI KEUNG

CACC 441/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 441 OF 2011

(ON APPEAL FROM DCCC 710 of 2011)

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BETWEEN

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J U D G M E N T

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Hon Stock VP:

1.  Mr Justice Macrae will deliver the first judgment in respect of this application.

Hon Macrae J:

2.  This is a joint judgment on behalf of Lunn JA and myself.

3.  On 26 September 2012, this Court by a majority refused the applicant leave to appeal against his conviction for burglary.  The applicant has now filed notice of his intention to seek leave to appeal to the Court of Final Appeal against that decision, for which he asks this Court to certify that a point of law of great and general importance is involved in the decision, pursuant to 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  That point is drafted as follows:

“Where in the context that the accused did not testify, to what extent and/or under what circumstances can the judge draw an inference from fingerprint evidence alone to convict; and incidentally, whether the accused has the duty to explain the presence of his fingerprints when it is unclear as to when and/or how such fingerprints were left.”

4.  In all three judgments of the Court, there was no disagreement about the law that a person may be identified by fingerprint evidence alone (per Stock VP at para 6, per Lunn JA at para 17 and per Macrae J at para 34).  Where this Court respectfully differed was in the application of the law to the facts of this case.  Thus Lunn JA held at para 17 that:

“The inferences that might properly be drawn from the finding of a fingerprint on an object are obviously fact sensitive”,

and concluded at para 23:

“Ultimately, it is to be remembered that the applicant’s fingerprints were found on a fixed object inside locked premises to which unauthorised entry was prohibited and in which a burglary had been committed. In the absence of any evidence or an explanation as to why it was there, the judge was correct not to speculate as to all the conceivable possibilities as to how it came to be found there but was entitled to draw the irresistible inference that the applicant left the impression where it was found because he was involved in the burglary.”

5.  Macrae J (with whom Lunn JA agreed) held at para 38 that:

“In my view there could well be a difference in evidential value between a fingerprint found on an easily movable or transferable item and an immovable object such as a door. Much depends, as I have said, on the circumstances in which the fingerprint is found.”

He had earlier stated at para 36 that:

“If a defendant's fingerprint is found inside locked premises, where he should not normally have been, and from which everyone, other than a very restricted section of people, is prohibited access, and when there is no obvious, or indeed any, explanation as to why the fingerprint should have been there, then a judge (or a jury) is, depending on the circumstances, entitled to infer that he was a party to the burglary of those premises; assuming that it has been properly proved (as was the case here because it was not disputed) that it was indeed the defendant's fingerprint. It is not a matter of requiring a defendant to give an innocent explanation for the presence of his fingerprint: rather, it is to permit the drawing of an appropriate inference from the presence of a fingerprint which should not otherwise have been there. The judge was right that it was not for him without any evidential basis to imagine how a fingerprint might have been innocently left on the inside of a locked door to burgled premises by someone with no apparent connection with the building. He was, however, entitled to draw the appropriate inference from the fact that it simply should not have been there.”

6.  Stock VP, in his dissenting judgment, asked himself the question at para 9 whether the “mere presence of the accused’s fingerprint” was sufficient in the circumstances to prove directly or by necessary inference the commission of the offence.  His answer to that question was:

“As to that, there was no evidence of an admission by the applicant; nothing found at his residence or place of work to implicate him in the crime charged; no visual identification of him as a person in the building on the day of the offence; nothing of his found in any one of the twelve other rooms in that building which were visited by the burglar or burglars that day; no evidence as to the age of the fingerprint; no accomplice evidence. Rather, there was evidence establishing only that at some time or another he had been in that room.”

7.  He concluded at para 10 by saying:

“Whatever suspicions one might nurse, the ultimate question is always whether the case has been proved. In my judgment, this case was not proved.”

8.  It seems to us, therefore, that the court did not disagree as to the law applicable: where it differed was whether the facts were sufficiently cogent for the judge to safely infer the applicant’s complicity in the crime alleged from a single fingerprint. 

9.  Although it is true that Stock VP was concerned to make clear at para 2 that:

“It is fundamental that the burden of proving all facts relevant to the establishment of guilt lies on the prosecution. The absence of testimony from a defendant does not provide proof of any one such fact”,

it is apparent from the passages quoted from the judgments of Lunn JA at para 23 and Macrae J at para 36 supra that neither of us was using the failure to explain or give evidence as proof of guilt.  The differences between the judgments lies in the inferences one could properly draw from the evidence, absent any explanation from the accused.  As we have said, that involved an assessment of fact rather than any novel approach to, or departure from, the applicable law.

10.  In those circumstances, we would refuse the application.

Hon Stock VP:

11.  The question posed for the proposed certification falls into two parts.

12.  The first part is “in the context that the accused did not testify, to what extent and/or under what circumstances can the judge draw inference from the presence of fingerprint evidence alone to convict?”

13.  The question is, with respect, a rather strange one because fingerprint evidence is never produced in a vacuum; it is always produced in a setting and in the context of other facts.  If one presupposes a vacuum, the answer to the first part of the question is “never”; whereas if, as one must, one presupposes a setting and other facts, the answer is “it depends on the setting and other facts.”  I fail to see what other answer the Court of Final Appeal could possibly provide, for which reason I would decline to certify the first part of the proposed question.

14.  The second part is “whether [an] accused has a duty to explain the presence of his fingerprints when it [is] unclear as to when and/or how such fingerprints were being left.”

15.  That question is also odd not only because the answer is obviously “no” but also because it does not accurately articulate the real concern which is behind it.  The concern is whether the accused’s failure to adduce evidence or, more particularly in this case, to cross-examine or to ask for a prosecution witness to be called adds anything to the prosecution case.  It is a concern which I suspect arises from paras 19 and 20 of the judgment of my Lord, Lunn JA and is a concern which, with great respect, I share.  Those are the paragraphs in which he remarked on the absence of any cross-examination suggesting that the applicant had permission to be in the switch room or as to the system in place for access and on the failure on the part of the applicant to invite the prosecution to tender relevant witnesses to speak to certain records.  I failed – and still fail – to see the relevance of the absence of those steps in the conduct of the defence case.  But if – as I take to be the case from the judgment just delivered by Macrae J – it be accepted that the absence of those steps added nothing at all to the strength of the prosecution case, then there is no point of law to go to the Court of Final Appeal; for all that remains is a disagreement as to whether it was proved first, that the applicant was an unauthorized person and, second, even if that was proved – my conclusion was that it was not proved – whether it was proved that his entry to the one switch room in question was an entry on the day of the burglaries of the 13 switch rooms that day – my conclusion was that that too was not proved.

16.  On this basis, I see no room for granting a certificate.

17.  Accordingly, the application for a certificate is unanimously refused.