HKSAR v. LAM SAI YUK

DCCC 1086/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1086 OF 2014

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Reasons for Verdict

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1.  The defendant pleaded not guilty to one offence of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210. The particulars were that the defendant entered a flat as a trespasser on 12 February 2006 at Room 4106, Man Chak House, Hing Man Estate, Chai Wan (hereinafter referred to as “the flat”), and stole therein three rings, one wrist chain, one pendant, four earrings, one watch, one key and cash of about HK$2,600.

Introduction

2.  The offence was alleged to have occurred in February 2006. The prosecution relied on the sole evidence of a single fingerprint that was lifted from a glass top of a dressing table inside the master bedroom of the flat.  As it transpired, this was the only evidence linking the defendant to this offence.

Destruction of all original witnesses’ statements taken in 2006

3.  On the first day of the trial, Mr Laskey, Counsel for the prosecution, informed the court that all the witnesses’ statements taken in 2006 had been destroyed. Mr Laskey said he was told of such matters just a few days before the first day of the trial by the police. 

4.  Mr Davies, Counsel for the defendant, immediately made a complaint against the prosecution that all the statements he had been provided with by the prosecution were in fact taken from the relevant witnesses in 2014 instead of 2006.  Mr Davies challenged both the memories of the witnesses and the accuracies of their statements.

5.  The prosecution applied for the case to be adjourned to the next morning so as to find out the reason for its destruction from the police.  After consideration, I granted the prosecution’s application.

6.  On the following day, no reason was actually given by the prosecution for the destruction of the statements.  Mr Laskey said although all the paper files had been destroyed, there were still records kept in a computer which enabled the witnesses to bring back their own recollection of what had happened in 2006. Furthermore, the most important piece of evidence in this case was not destroyed, namely, the transparent plastic sheet containing a fingerprint that was lifted from the glass top of the dressing table inside the flat in 2006.

7.  Mr Davies informed the court that the prosecution was put to strict proof in the whole case, in particular, the chain of evidence relating to the fingerprint that was alleged to have been lifted in 2006.

Evidence of the Prosecution

8.  The prosecution called three witnesses in support of the charge: PW1, Mr Chang Ming-wai, who was the resident of the flat; PW2, Sergeant 1133, the officer who lifted two fingerprints inside the flat in February 2006; and PW3, Station Sergeant 34801, the officer who gave expert evidence as to his analysis of the lifted fingerprints.

9.  Facts admitted by the prosecution and defence under section 65C of the Criminal Procedure Ordinance, Chapter 221 were produced and marked as Exhibit P1.  In it, it was admitted that on or about 26 January 2014, whilst conducting a periodical routine check of the police database, a match of a fingerprint appeared likely.  On the following day, it was confirmed at the fingerprint division of the Identification Bureau of the Hong Kong Police Force (hereinafter referred to as “the IB”) that the print was the left middle finger of the defendant.

10.  Further admitted facts under section 65C of the Criminal Procedure Ordinance, Chapter 221 were produced and marked as Exhibit P7. It was admitted on 5 June 2014 the defendant was arrested by DPC54465 and taken to Chai Wan Police Station.  There, at 1507 hours, he was required to provide fingerprint and palm prints, and these were affixed to a fingerprint form POL27 (Exhibit P6). Exhibit P6 was then submitted to the IB and used in analysis by PW3.

PW1 - Mr Chang Ming-wai

11.  On 12 February 2006, PW1 secured his flat and left with his family members.  When he returned to the flat in the evening, he discovered the flat had been ransacked.  The case was reported to the police. PW1 later found his Rolex watch, one diamond ring and cash of about HK$2,500 went missing.  PW1 had already forgotten the actual value of the items.  PW1 knew several items belonging to his wife were also missing, but he had no idea where they were originally kept by his wife.  PW1 does not know the defendant nor has he ever permitted him to enter his flat.

PW2 – Sergeant 1133

12.  PW2, Li Hin-fai, was a police officer attached to the IB.  On 13 February 2006, PW2 attended at the scene and conducted an investigation.  There he undertook a fingerprint lifting exercise.  Two fingerprint impressions were lifted.  One of them was lifted by PW2 on a glass top of a dressing table inside the master bedroom of the flat.    

13.  After this particular fingerprint impression was lifted, PW2 gave it a reference number “FP(H)1936/06B”, and wrote it on a transparent plastic sheet (Exhibit P2).  Apart from the reference number, he also wrote down the date and the location of the lifting and drew a diagram showing where it was lifted.  PW2 said he then put Exhibit P2, the other lifted fingerprint and a POL1037 form all into a white paper envelope, POL2 (Exhibit P3).  On the front side of Exhibit P3, PW2 wrote down some information such as where those two fingerprints were found, the location of examination.  He then took Exhibit P3 back to the IB. After he returned to the IB, PW2 placed Exhibit P3 in a box which had a lock.

14.  When asked by the prosecution if anything was done photographically with Exhibit P2 after it had been taken back to the IB, PW2 replied that he was just an examiner at the scene.  He preferred this question to be answered by the fingerprint expert.  PW2 said after he took Exhibit P3 back to the IB, he had fulfilled his duties and completed his task.

PW3 – Station Sergeant 34801

15.  PW3, Chan Yuk-yuet, was a fingerprint expert attached to the IB.  There was no challenge to the expertise of PW3.

16.  PW3 said he was asked by his colleagues in early 2015 to make an analysis and a comparison in respect of the lifted fingerprints which he understood to have been lifted on 13 February 2006.  Normally, for the purpose of his analysis, he first needed a one-to-one photograph produced from the plastic sheet containing the lifted fingerprint for fingerprint analysis. In court, PW3 was shown to Exhibit P4 which was the photocopy showing two black-and-white images taken from two plastic sheets containing fingerprints without any reference number there.  PW3 confirmed that the one shown at the bottom of Exhibit P4 was the one-to-one photograph produced from the lifted fingerprint shown on Exhibit P2. 

17.  PW3 said he was not responsible for the photographic procedures regarding the lifted fingerprints.  The photographs including enlargement of the lifted fingerprints were all done by the photographic section of the IB. When he started to make a fingerprint analysis in respect of the present case, the photographs of the lifted fingerprint shown on Exhibit P2 had already been processed and put in Exhibit P3.

18.  Having found that the photographs of the lifted fingerprint had sufficient features for the purpose of comparison, PW3 then compared it with the fingerprint of the defendant on the fingerprint form (Exhibit P6). PW3 gave evidence, which was not challenged, that based on the 12 identical ridge characteristics on the two fingerprints, he came to the conclusion that one of the lifted fingerprints given to him in Exhibit P3 was that of the defendant’s left middle finger.  The other lifted fingerprint put in Exhibit P3 matched the left ring finger of PW1.

Submission of No Case

19.  After the prosecution case closed, the defence submitted there was no case to answer for the charge.  Basically, Mr Davies challenged the integrity of the chain of Exhibit P2 from the time it was taken back to the IB by PW2 in 2006 to the time it was given to PW3 for fingerprint analysis in 2015.  It was submitted that the prosecution failed to prove how and where Exhibit P2 was stored after it had been taken back to the IB by PW2.  There was no evidence to prove that Exhibit P2 had been kept safely in the IB, and there was also no evidence before the court as to who photographed the lifted fingerprints shown on Exhibit P2 before they were given to PW3 for fingerprint analysis.  There was also no record available to show what had happened to Exhibit P2 when it was being kept in the IB.

20.  Mr Laskey replied that PW2 has identified in court the Exhibit P2 on which he placed the fingerprint that he lifted from the glass top of the dressing table inside the master bedroom of the flat.  He also confirmed his handwriting there, and Exhibit P2 was later stored in the IB. PW3 has also identified in court the lifted fingerprint shown on Exhibit P2 and also confirmed that the one shown at the bottom of Exhibit P4 was one-to-one photograph produced from the lifted fingerprint shown on Exhibit P2.  It was submitted that a prima facie case has been made out as the chain of evidence relating to Exhibit P2 has clearly been established.

21.  After considering the evidence, I found a prima facie case has been made out in respect of the charge.

Evidence of the Defence

22.  Upon my ruling that there was a case to answer in respect of the charge laid against the defendant, he elected not to testify and called no witnesses.  

General Directions

23.  I have carefully considered all the evidence and the submissions made by Mr Laskey and Mr Davies. In reaching my verdict, I remind myself of the burden and standard of proof that the burden is on the prosecution throughout.  The defendant has to prove nothing. No adverse inference is drawn against the defendant for remaining silent.  That is his right. This proves nothing one way or the other.

Evaluation of Evidence

24.  It was the prosecution’s case that the only evidence that linked the defendant to the burglary of the flat was his fingerprint impression that was found on the glass top of the dressing table inside the master bedroom of the flat.  Mr Davies has already made it very clear from the very beginning of the trial that the chain of the evidence relating to Exhibit P2 was in issue.  Therefore, the issue to be determined in the present case was whether 1) there was any break on the chain of evidence relating to Exhibit P2, and 2) if no, by reason of the defendant’s fingerprint being found on the dressing table in the flat, whether the prosecution have proved beyond reasonable doubt that the defendant was the person who committed the burglary.    

25.  It was said that after PW2 lifted the fingerprint on the glass top of the dressing table in 2006, he put the transparent plastic sheet containing the lifted fingerprint, namely Exhibit P2, into Exhibit P3.  Exhibit P3 was unsealed. It was not a tamperproof envelope. When one closely looked at the contents of the front side of Exhibit P3, there should not be any difficulty in finding that there was a heading entitled “File Movement” at the bottom of Exhibit P3.  It was seen that there were four rows under the heading of “File Movement”. They were typed “collecting officer”, “checking officer”, “despatch officer” and “receiving officer”.  Two name chops were seen to be stamped under the column entitled “Name/Signature”.  One name chop was belonged to one Sergeant Ng Chiu-leung, and the other was belonged to one Wong Chi-wai, CA88046.  There were also two signatures beside the name chops. It appears to me that there were at least two other officers who had come into contact with Exhibit P3 or perhaps Exhibit P2 therein. But under what circumstances did those officers come into contact with Exhibit P3? Neither PW2 nor PW3 was asked about the identities of those officers and their roles as far as the movement of Exhibit P3 was concerned.  I was also not informed by the prosecution as to why those officers were not called.

26.  After PW2 returned to the IB on 13 February 2006, PW2 said he had put Exhibit P3 into a box which had a lock.  But what was the type of the box?  Where was the box put in the IB?  Did PW2 actually lock it?  If yes, did he keep the key of the lock?  If he did not keep the key, who kept it afterwards?  Over the past eight years, was Exhibit P3 still kept in the same place?

27.  Another matter that raised my concern in this case was that neither PW2 nor PW3 was involved in the photographic procedures of Exhibit P2.  Who took the photographic task in relating to the lifted fingerprint shown on Exhibit P2 and how was it photographed?  Who retrieved Exhibit P3 and handed over to PW3 for his fingerprint analysis?  There was simply no evidence before the court to suggest that there were no flaws in the handling of Exhibit P2 during processing.

28.  In fact, I found the prosecution could have done something more on the chain of evidence relating to Exhibit P2 and P3 in order to satisfy the court that Exhibit P2 had been safely preserved in the IB for later analysis.  Perhaps the issues could easily be resolved if some of the relevant officers could be called to fill in the gap or at least some evidence could be adduced to tell the court why they were not called. The prosecution should have been well aware that the integrity of the chain of evidence relating to Exhibit P2 was vigorously challenged by the defence in this case.  The prosecution was under a duty to clarify all these uncertainties with PW2 and PW3. 

29.  I found the chain of evidence was not as clearly established as it should have been.  Therefore, I found the prosecution failed to prove beyond reasonable doubt from the evidence submitted that Exhibit P2 had been adequately preserved without any interference from the time when it was taken back to the IB in 2006 to the time when it was retrieved for PW3’s fingerprint analysis in 2015.  The benefit of doubt is given to the defendant, and he is acquitted of the charge.