YIP TAK WING, MICHAEL v. HKSAR

CACC 28/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 28 OF 2011

(ON APPEAL FROM DCCC574/2010)

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BETWEEN

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JUDGMENT

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Hon Stock VP:

1.  The facts and arguments are set out in the judgment of Wright J.

2.  In my judgment, the application should be allowed, leave given and the appeal allowed.

3.  It comes down, in my opinion, to a simple point which is that “on the scenario elicited from the prosecution witness as to the driver wearing [the gloves] and climbing over the fence in the manner in which the driver … had acted,” the expert could not exclude the possibility that someone other than the applicant might have worn gloves at the material time and that that possibility was not categorised as fanciful or even as remote but as “relatively low”. 

4.  That being so, I fail to see how one can be sure that it was the applicant who wore the gloves at the time of the relevant offence.  I note too that there is no indication of how dated the DNA traces are. 

5.  To test the matter, I asked Mr Tam whether he would seek to support a murder conviction based upon such evidence and he said he would. Well, I would not; and if one could not properly found a conviction for murder where the only evidence was DNA evidence which on the facts left open a “relatively low” possibility that someone other than the accused had wielded the murder weapon at the time of the killing, then the same result follows for a much less serious offence, for the standard of proof and the result of its application is a constant.

6.  I am satisfied too that the absence of evidence from the applicant makes no difference.  The absence of evidence can never fill a lacuna in the prosecution case and I fail to see that cases such as Li Defan or Weissensteiner assist the respondent at all.  Indeed in the course of its judgment in Weissensteiner at p 227, the High Court of Australia cited Bridge v The Queen (1964) 118 CLR at p 615:

“An accused person is never required to prove his innocence: his silence can never displace the onus that is on the prosecution to prove his guilt beyond reasonable doubt. …. That is to say a failure to deny or explain may make evidence more convincing, but it does not supply its deficiencies.” (emphasis added)

7.  The Court went on to say, at p 228, that there are circumstances in which “hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused”; warning however that “not every case calls for explanation or contradiction in the form of evidence from the accused. … Even if there are facts peculiarly within the accused’s knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution.” (Emphasis added).

8.  This, in my judgment, is such a case.  Evidence was called on the applicant’s behalf that gloves were worn at his place of work by him and work colleagues and no finding in relation to this evidence was made by the trial judge, though it would appear that the trial judge rejected the remainder of that witness’ evidence.  But putting that altogether aside, the long and the short of the matter, as far as I am concerned, is that the prosecution has failed to prove its case to the requisite standard.

9.  I would therefore grant leave, allow the appeal and quash the conviction.

Hon Barnes J:

10.  I have had the chance of reading in draft the judgment of Stock VP and Wright J. I agree with the judgment and reasons given by Wright J and have nothing to add. Accordingly I would dismiss the application for leave to appeal conviction.

Hon Wright J:

11.  The applicant was convicted, after trial, of a single charge of handling stolen goods, two private motor cars, knowing or believing them to have been stolen. He was sentenced to undergo imprisonment for a period of 3 years. He seeks leave to appeal conviction.

12.  The facts may be shortly stated. At approximately 5:35 pm on 28 March 2009 a team of police officers was keeping observation on a container yard in Tin Ha Road, Yuen Long. They observed a motor car, later established to have been stolen, enter the container yard. Some 11 minutes later that car left the container yard followed by a second car, also later established to have been stolen: each was a Toyota Alphard. The cars were driven along Tin Ha Road. The cars were observed and then followed by a police officer, himself in a motor vehicle. The two cars suddenly accelerated: the police officer followed. There were times when he lost sight of them due to the configuration of the road.

13.  On a straight section of road the pursuing officer observed the second of the two cars stopping, the driver alighting and then running across the road: he noticed that the driver was wearing a pair of dark coloured gloves. The police officer then observed the first of the cars collide with a fence. The driver of that car also alighted. He too was wearing a pair of gloves, black in colour. The drivers of both cars climbed over the fence. The right glove worn by the driver of the first car became impaled on barbed wire topping the fence and remained behind: when that driver descended on the opposite side of the fence the left glove worn by him came off and lay on the ground. Both drivers ran off.

14.  When the two cars were subsequently inspected it was found that each bore false registration plates; the genuine registration plates of each was found inside the respective car; the license of the first car was found inside the glove compartment of that car; the license of the second car was still affixed to the inside of its windscreen; the left front and right front door locks of the first and second cars respectively had been removed leaving a visible hole in each door; what the judge described as a "home-made device", was found attached to the ignition system of the second car.

15.  The gloves worn by the driver of the first car were seized by the police at the scene. When they were examined forensically each glove was found to contain DNA which was agreed to have come from the applicant, who was arrested some 5½ months later. No DNA other than that of the applicant was found in either glove. The government chemist was unable to say when the DNA had been introduced into the gloves.

16.  A substantial portion of the prosecution evidence was either adduced under s. 65B or admitted by the applicant under s. 65C of the Criminal Procedure Ordinance, Cap. 221 - notwithstanding which, five witnesses were called. Four of them were not cross-examined. The fifth was a government chemist, HO Siu-hong, who gave evidence concerning the finding of the applicant's DNA inside the pair of gloves.

17.  In addition to the standard catchall submission that the conviction was unsafe and unsatisfactory, the applicant relied upon four grounds of appeal, three of which related to the same issue, the manner in which the judge dealt with the evidence of Mr. Ho. The fourth ground was that the judge had erred in law in finding that she could more readily draw an inference of guilt because the applicant did not testify.

18.  Although the applicant chose not to testify he called an alibi witness. No complaint is, nor could any sensibly be, made of the fact that the judge disbelieved the testimony of the applicant's witness. She gave compelling, trenchant reasons for doing so. Mr Oderberg, who appeared for the applicant before us, but not below, indicated in his oral submissions that he accepted that the judge correctly had rejected all of the testimony of the alibi witness, including some that related to the fact that he made gloves available for use by his workers, of whom the applicant was one. This was in contradiction of his written submissions which pointed out that she had not made any finding in regard to the gloves and that there “...was no basis...” for rejecting that evidence. His final position on this issue was not clear, but in my view nothing turns on it.

19.  It is worth noting, moreover, that the witness indicated that it was his habit to make available leather gloves for use by its workers whilst the judge found that the gloves left behind were made of fabric - see §25 below.

20.  I turn to the first amended perfected ground of appeal which reads:

1. The trial judge, in relying solely upon the expert evidence of the two government chemists concerning the DNA found inside the gloves located at or near the scene where a stolen vehicle was found abandoned, failed to adequately assess whether the only reasonable inference to be drawn from that expert evidence was that the appellant (sic) dishonestly received the vehicle knowing or believing it to have been stolen.

21.  This mis-characterises the evidence as well as the judge’s reasons. There was not “a” stolen vehicle but two of them. They were not “found abandoned” but each was seen to be brought to a halt, one by colliding with a fence, and the respective drivers to alight. The judge did not rely “solely” on DNA evidence to draw the inference that the appellant dishonestly received the vehicles knowing them to have been stolen: on the contrary, she did not rely on it at all for that purpose.

22.  The judge specifically said "This court therefore finds that the defendant was the driver of the [first vehicle] at the material time. In any event, such finding may not necessarily be conclusive of his guilt."; she devoted an entire, substantial, section extending to some 16 paragraphs of her Reasons for Verdict, setting out the law relating to the topic of receiving stolen goods, that of handling them, the issue of knowledge or belief that they were stolen, the element of dishonesty and the doctrine of recent possession; she recognised that the case against the applicant was purely circumstantial; she warned herself comprehensively against falling into the various pitfalls which may arise in a case of this nature; she dealt with the physical condition of the vehicles to which we have already referred which would have made it patently obvious to any person driving those vehicles that their provenance was, at the least, visibly and obviously suspicious. Her approach to this issue was meticulous.

23.  The second and third amended perfected grounds of appeal are repetitious and may be dealt with together. They read:

2. That the trial judge placed no or inadequate weight on that part of the expert evidence... which indicated that the expert could not exclude the possibility that notwithstanding the presence of the Appellant's (sic) DNA in the gloves, someone else may also have worn them at the relevant time;

and

3. The trial judge placed no or inadequate weight on that part of the expert evidence... which indicated that the chances were "relatively low" that the wearer, if he was "the climber" would not leave his DNA in the gloves.

24.  These grounds do not accurately reflect Mr. Ho’s evidence in chief. The relevant passage appears in his third statement, Exh. P6. It reads:

One cannot rule out the possibility that someone might be wearing gloves at the material time but did not leave behind any detectable amount of human DNA. Whether a person leaves behind a detectable amount of human DNA, or otherwise, on a contact surface is dependent on a wide range of factors including the circumstances of the case. Hence, the possibility of someone else other than the DNA donor wearing gloves at the material time could not be commented upon.

25.  It is instructive, also, to look at just what it was the judge said when considering Mr. Ho's evidence:

27. The result of DNA analysis did not however indicate the presence of other person's DNA inside the gloves. Mr. Ho agreed that there was a possibility that somebody might be wearing gloves at a particular time but did not leave behind any detectable amount of human DNA. Mr. Ho further explained that to leave behind a detectable amount of human DNA on a contact surface e.g. the fabric gloves in our case, would depend on a wide range of factors including circumstances of the case.

28. Mr. Ho gave some examples by stating that:

(1) if gloves were worn for a long time with a lot of activities taking place, then chances of leaving DNA on the gloves would be very large. On the contrary, where gloves were worn for a short period of time and without carrying out activities, then the chance would be small;

(2) if the surface of the gloves is rough, like fabric surface, it would be easier to leave DNA on it; and

(3) the nature of contact with the gloves, e.g. friction activities, will also increase the possibility of leaving DNA on gloves.

28. The scenario elicited from prosecution witness as to the driver [of the first vehicle] wearing [the gloves] and climbing over the fence in the manner in which the driver [of the first vehicle] had acted was presented to Mr. Ho for his opinion. Mr. Ho opined that the likelihood of the climber not leaving detectable amount of DNA on the gloves under such circumstances was relatively low, the facts that a large degree of friction caused between hands and the pair of fabric gloves as revealed, were also conducive to leaving DNA on gloves.

26.  The judge, as she was so entitled, accepted Mr. Ho's testimony. The witness understandably accepted the notional possibility that somebody else might have worn the gloves but expressed the opinion that, in circumstances such as those suggested to him, the prospects of somebody else having worn the gloves at that time and not having left detectable traces of DNA was “relatively low”. That, of course, was a theoretical possibility upon which the witness had been asked to express his expert opinion.

27.  The mere fact that an opinion expressed on one facet of the evidence accepts the existence of a relatively low possibility does not mean necessarily that the prosecution inevitably fails to discharge the onus to the criminal standard, that there is a gap in the prosecution case. It will be a question of fact and degree in each instance. If it does not leave a gap which needs addressing by further evidence without which the prosecution is unable to prove its case, then it remains a matter which the trier of fact must take into account when arriving at his decision: or, as it was expressed b y McMahon J in HKSAR v LI Chung-chuen CACC412/2009 (unreported, 3 September 2010, at §14), that possibility “...simply contributed to the matrix of probabilities the judge had to and did consider in drawing the inference...”. It is quite apparent from the Reasons for Verdict that that is precisely what the judge did.

28.  There was, of course, no evidence whatsoever that anyone other than the driver of the first vehicle had worn that particular pair of gloves at any time, let alone at what Mr. Ho referred to as the "material time". That which had been suggested to Mr. Ho was nothing other than a hypothesis upon which he was asked to comment, a hypothesis unsupported by the merest tittle of evidence.

29.  It is self-evident from the judge’s specific finding accepting Mr. Ho's testimony that the judge was aware of the fact that she was not bound to accept the evidence, even the unchallenged evidence, of an expert witness and that such evidence goes only to one area of the evidence before her. The judge had the advantage, not available to Mr. Ho, of having heard all of the evidence, almost entirely unchallenged, as to the events which led up to the abandonment of the gloves by the driver of the first vehicle.

30.  It is, with respect, a failure to appreciate the necessity for a trier of fact to have regard to the evidence as a whole or, in simple terms, to look at the big picture, and not to each sliver of it in unrealistic isolation which leads to these two grounds of appeal. The judge did not fall into similar error. She demonstrates this in terms and was correct in concluding, at §63:

To conclude, where all the evidence have been considered, evaluated and analysed together with the forensic evidence in respect of two gloves left at the crime scene, the only and compelling inferences that can be drawn irresistibly were that: (i) the defendant was the driver of [the first car] at the material time; [emphasis supplied]

31.  The final amended perfected ground of appeal asserts:

4. The trial judge erred in law in finding that he (sic) could more readily draw an inference of guilt because the Appellant (sic) had not given evidence contradicting the prosecution's case.

32.  The judge said, at §40:

The defence is one of alibi. Even if the court does not accept the alibi, this does not necessarily mean that the defendant is guilty. The prosecution has to prove its case beyond all reasonable doubt. The defendant chose not to testify. Such right cannot be taken to reflect a guilty conscience. On the other hand, it means that there is no evidence from the defendant to undermine, contradict or explain the evidence put before the court by the prosecution.

33.  She refers in the next four paragraphs to decisions where the drawing of an inference in the absence of evidence by an accused person has been considered. Each of those decisions predated that of the Court of Final Appeal in LI Defan and Another v HKSAR (2002) 5 HKCFAR 320 [2002] 1 HKLRD 527: it may have been more useful for the judge to have referred to that decision.

34.  The applicant prays in aid that decision as well Weissensteiner v The Queen (2000) 199 CLR 620, a decision of the High Court of Australia referred to in LI Defan and to a subsequent decision of this court (Hartmann JA, Beeson and McMahon JJ) in HKSAR v LEUNG Chi-wah, Earnest and Another CACC275/2007 (unreported, 23 October 2008).

35.  Specific submissions were directed to us by Mr. Oderberg, on behalf of the applicant, dealing with what he called “Special knowledge in the possession of the Appellant (sic)”, being a reference, presumably, to the passage in Weissensteiner at 227-229, quoted in LI Defan and Another at 332I:

Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused’s knowledge. Even if there are facts peculiarly within the accused’s knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast on the prosecution. Much depends upon the circumstances of the particular case...

36.  However, that passage should be understood in Hong Kong in the light of the qualification in LI Defan and Another by Lord Hoffmann NPJ with whose judgment all the other judges agreed, which appears at §28:

... I should say, for the sake of completeness... that in my opinion there is no basis for the distinction between cases in which there are additional facts within the peculiar knowledge of the accused and cases in which the facts are within the knowledge of the accused, which was adopted by the majority in Azzopardi and Davis v The Queen (2001) 119 A Crim R 8. The processes of reasoning cannot be confined within such a straitjacket.

37.  When considering the approach to be adopted by an appellate court hearing an appeal from a decision by a single judge sitting alone, Lord Hoffmann NPJ went on to say at §31:

In my opinion it should equally be accepted that unless there are indications to the contrary, the judge is aware that the accused was not obliged to give evidence and that failure to give evidence is not an admission of guilt. If, therefore, the judge appears to have, or says he has, used the failure of the accused to give evidence as an element in the reasoning by which he arrived at the finding of guilt, the only question is whether on the particular facts of the case such reasoning was legitimate. As Lord Diplock remarked in Haw Tua Tau v Public Prosecutor [1982] AC 136, it is hard to say more than that this is a matter of common sense.

38.  I do not accept the applicant's submission that the lack of evidence by the applicant "... played a very significant part..." in what the applicant describes as the judge 's Reasons for Verdict but I take to be a reference to the judge’s reasoning process. This appears particularly clearly from both §45 of the Reasons for Verdict where the judge expresses herself, in the context of the election by the applicant not to testify, as "... having regard to all the relevant evidence, including..." the forensic evidence. The judge makes a finding that the accused was the driver of the first car after which she immediately reminds herself that that finding is not necessarily conclusive of the guilt of the applicant. As appears at §30 above, she makes a further reference to the consideration of the whole of the evidence in §63 of her Reasons for Verdict.

39.  In the circumstances it seems to me that although the absence of any evidence by the applicant was a factor to which the judge had averted, she was doing little more than making an obvious, commonsense remark. This approach is consistent with LI Defan and Another.

40.  In Weissensteiner Mason CJ said, at 229:

But when an accused elects to remain silent at trial, the silence cannot amount to an implied admission. The accused is entitled to take that course and it is not evidence of either guilt or innocence. That is why silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case; it cannot be used as a makeweight. It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take into account only for the purpose of evaluating the evidence.

41.  It needs to be borne in mind that in the instant matter a police officer had been following two motor cars one of which he saw come to a halt when it crashed into a fence; the driver was seen to get out the car and flee; the police officer saw how he became parted from the gloves he was wearing; each of those gloves was subsequently found to contain DNA; that DNA was the DNA of only the applicant. The presence of that DNA in those gloves in those circumstances was compelling evidence that the applicant was the driver of the vehicle at the time.

42.  The judge precisely followed the course referred to by Mason CJ. She took into account, for the purpose of evaluating the prosecution case, the fact that there was no evidence from the applicant to undermine, contradict or explain the compelling evidence against him. It was legitimate for her to do so.

43.  The "particular facts" of this case are very different to those which existed in HKSAR v LEUNG Chi-wah, Earnest and Another: this case is readily factually distinguishable and that decision is of no assistance to the applicant. There, there had been evidence on behalf of "D2" which, the Court observed, "... if accepted, went some large way towards establishing his defence." As in the present matter, the trial judge rejected that evidence: what particularly distinguishes the present situation is that the judge below observed, in terms and correctly, that even if she had accepted the alibi witness’s evidence it did nothing to assist the applicant.

44.  In regard to "D3" in LEUNG Chi-wah, Earnest the Court found that there were prima facie inconsistencies and difficulties in the evidence "... of the ordinary sort which exist in very many cases where a defendant is reasonably entitled to decide that the flaws in the prosecution evidence are such that he is justified in not giving evidence." That cannot sensibly be said to be the position where two gloves seen to have been worn by the driver of a stolen vehicle were found to contain the DNA of only one person.

45.  In my judgment, the conviction was neither unsafe nor unsatisfactory.  I would dismiss the application for leave to appeal.

Stock VP:

46.  Accordingly, the application for leave is, by a majority, dismissed.