HKSAR v. CHIU WAI KEUNG

FAMC No. 59 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 59 OF 2012 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 441 OF 2011)

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1.  At the conclusion of the hearing, we dismissed the application for leave to appeal with reasons to be given later. These are our reasons.

2.  The applicant was convicted after trial before the District Court (H H Judge Browne) of burglary. There was no dispute that a burglary occurred in one of the buildings in a housing estate on 2 December 2010. At about 3 p.m. on that day, a security guard (PW1) at the building received a complaint that there were some suspicious persons near the switch room on the 16^th floor. She made investigations and discovered that the switch rooms from 14^th to 27^th floors of that building had been burgled and that some quantity of copper plates had been stolen. The doors to these rooms were closed and there was no sign of prising. PW1 had, earlier at around 7:30 in that morning, made a random check of the switch rooms in the building and they all appeared to be in order. 

3.  These switch rooms were accessible only to authorized persons and for legitimate purposes, such as carrying out maintenance work inside. The doors closed automatically and could be opened by keys kept at the counter of the building and in the Control Room of the whole estate. Staff and workmen who wished to access the switch rooms could obtain a key at either the counter or the Control Room but had to register their particulars.

4.  The police lifted from the inside of the door to the switch room on 23^rd floor a right thumb fingerprint which matched that of the applicant. But the expert could not tell how long it had been left there. No one had borrowed the key to the switch rooms on that day although PW1 could not remember whether anyone had asked for the key within the 2 to 3 days before that. The register for the key was not produced at the trial. There was no evidence whether the applicant was or was not a staff member or a workman. He did not give or call any evidence.

5.  It was clear that the crucial issue is whether one can draw the irresistible inference that the applicant was involved in the burglary. The trial judge concluded that on the evidence, he could draw such an inference. In dismissing his application for leave to appeal, the majority of the Court of Appeal (Lunn JA and Macrae J, Stock VP dissenting) agreed with the judge.

6.  In seeking leave to appeal on the substantial and grave injustice ground, Mr Robert Pang SC for the applicant first contended that the majority of the Court of Appeal was wrong in saying that in the absence of any evidence and explanation why the applicant’s fingerprint was left at the scene, an irresistible inference could be drawn that he was involved in the burglary. This, it was argued, was shifting the burden of proof onto the applicant, a point which was made by Stock VP in his dissenting judgment.

7.  We do not agree with this argument. In referring to the absence of evidence explaining the presence of the fingerprint and the lack of cross examination on certain aspects of the prosecution case, the majority of the Court of Appeal was simply making the point that since it was not known what the defence case was, it was not incumbent upon the prosecution to exclude all possibilities why the applicant’s fingerprint found its way to a place where entry and presence was restricted. (See Lunn JA at para. 22 and Macrae J at para. 41.) There was no question of requiring the applicant to prove anything.

8.  This leads us to the applicant’s second argument and that is: there was no sufficient evidence to draw the irresistible inference that the applicant was one of the burglars and the lower courts in concluding that there was had departed from accepted norms. It was submitted that the prosecution had not shown for example that the applicant was not a staff member or a workman or that he had not previously borrowed the key to the switch room. As noted in the preceding paragraph, no suggestion was put to the witnesses at the trial as to whether he was or was not a staff member or workman or had a legitimate purpose in gaining access to the switch room and it was not for the court to speculate whether this might be the case or whether there were other scenarios and that other inferences were also possible.

9.  In respect of this argument, Mr Pang agreed that he had to submit that on the evidence before the court, no reasonable tribunal could have drawn the inference which the trial judge did. He accepted (as is clear from the authorities) that depending on the circumstances of each case, the presence of an accused’s fingerprint at the scene of crime may be sufficient to form the basis of a conviction. In the present case, it cannot be said that in the circumstances of this case, the presence of the applicant’s fingerprint inside the switch room where entry and presence was restricted and where a burglary had taken place was not sufficient for drawing the irresistible inference that he must have been involved in the crime. There was simply no other basis for drawing a different inference. In this connection, it is apt to refer to the following comment made by the Australian High Court in Weissensteiner v The Queen (1993) 178 CLR 217, 227, 229) which was cited with approval by Lord Hoffmann NPJ in Li Defan and another v HKSAR (2002) 5 HKCFAR 320, 333, 

“There is a distinction, no doubt a fine one, between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely simply because the accused has not supported any hypothesis which is consistent with innocence from facts which the jury perceives to be within his or her knowledge.”

10.  We are not satisfied that the applicant has shown he has suffered substantial and grave injustice. For these reasons, we would dismiss the application for leave to appeal.