HKSAR v. FUNG WAI KWONG

DCCC 45/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 45 OF 2012

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REASONS FOR VERDICT

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Overview

1. The defendant is alleged to have burgled a premises which was used for the recycling of waste paper and metals sometime between 8 pm on 11 March 2011 and 12 March 2011.  A surgical mask (mask) was found inside the premises.  The defendant’s DNA matched the DNA found on the mask. 

2. The defendant is alleged to have stolen a computer monitor, 20 baskets containing copper wire and 4 hand cards.  The owner of the business was not at the premises at the material time. 

3. The defendant denied he had burgled the premises.

4. Issue

There was no dispute that the premises were burgled and the items were stolen. The only issue was if it was the defendant who had committed the burglary as alleged.

5.  The DNA evidence was not challenged by Mr Cheung Kam Chuen counsel for the defendant. The prosecution was put to strict proof of the charge.

6. The evidence

The prosecution called three witnesses. Much of the prosecution case was not challenged. There were admitted facts exhibited as PA1 and Mr Lam Tze-tsun, a DNA profiling expert’s witness statement admitted under s. 65B of the Criminal Procedure Ordinance cap 221.

7.  PW1 was the owner of the recycling business that had its business at the shop premises. She was the owner of the stolen property. PW2 was the police officer that seized the mask from the scene and PW3 was another DNA profiling expert.

8. The defendant elected not to give evidence as was his right.  I drew no adverse inference from the defendant’s election to remain silent.  He called no defence witnesses. 

9. PW1’s evidence

PW1 stated in the evening on 11 March 2011 at about 8 pm she left the premises in Yuen Long on the ground floor secured an unattended. She returned to her shop at about 8 am the following morning on 12 March 2011.

10.  When she left the shop it was secured with a roller shutter gate from the ceiling to the floor. There was a padlock locking a small door in the middle of the roller shutter and a metal chain locking the large roller shutter.

11. The following morning PW1 entered the shop through the small door.  She left the large roller shutter down.  When she entered the shop she found a basket that she had stored socks in was missing and the socks were all over the floor.  She then noticed that her computer monitor located on her desk was missing.  She realised then her shop had been burgled.  Having looked around her shop she found 20 baskets of copper wire and four handcarts were also missing.

12. PW1 then went back to the front of the shop and saw that the metal chain that locked down the roller shutter was broken.  She immediately called the police.  

13. A uniform police officer arrived then officers who were in a team to lift fingerprints arrived later.

14. PW2 was one of the officers of the fingerprinting team.  He had arrived at the premises at about 8.58 am.  When he arrived he saw the uniform officer then took over from him.  The uniform officer pointed out to him the mask that was on the floor atop of the draw of tools.  He seized it with gloves and put in an envelope and kept it in his safe custody until it was sent to the laboratory for examination.

15. PW3 Ms Wong Lai-man, a DNA profiling expert found the saliva on the mask matched the buccal oral swab samples given by the defendant on 14 February 2012.  Out of 15 systems of DNA matching 15 matched the defendant’s. The probability of having someone unrelated to the defendant from the local Chinese community matching the DNA was 1 in 14.2 quadrillion. The chance of which was almost non-existent or a very small probability.

16. Proof

It was for the prosecution to prove beyond all reasonable doubt that the defendant committed this offence of burglary. No onus lay on the defendant.

17.  Submissions

The thrust of Counsel for the defendant Mr. Cheung’s submissions, if I understood his submissions correctly, was that the prosecution had not disproved or ruled out the possibility that the mask which had the defendant’s DNA profile could have ended up in the shop by business customers of or by PW1’s employees.

18.  Mr Cheung accepted that the matching probability of the defendant’s saliva and the saliva found on the mask was high, in that it was the same as the defendant’s DNA.

19. Analysis of the evidence

The main question is therefore how did the mask with the defendant’s DNA profile turn up in the shop?

20.  The mask was found by the toilet on top of a draw of tools which was placed on the floor (see photo5 exhibit P1). The mask was located inside the shop premises.

21. It was PW1’s clear evidence that before she left her shop at 8 pm the previous evening she had swept the floor.  She said that she had not seen the mask there the night before.  PW1 saw the mask following morning.  When she saw the mask she wondered why there was a surgical mask there. 

22. PW1 said that she worked at the shop alone.  She had employees but they did not work at or within the shop.  The employees would come to the shop to take away the goods to store at her warehouse elsewhere. There were employed purely for transporting the goods away from her shop.

23. PW1’s evidence was that from the time she entered the shop at 8 am on 12 March 2011 to the time the finger print police officers arrived her shop was not open for business to anyone and nobody had entered her shop wearing a mask. 

24. It was clear from the evidence that the mask was not there when PW1 left the shop the night before but it was there when she returned to the shop the following morning.  No one had entered the shop whilst she was there with a mask. 

25. PW1 stated she did not know the defendant and nor had she ever see him before. 

26. I was satisfied on the evidence that it was the defendant who left the saliva stain on the mask.  The saliva on the mask is evidence that the defendant had worn the mask. 

27. How then did the mask that the defendant wore end up in the shop?  I was satisfied that the only way for the mask to be found in the shop was that the defendant had been in the shop with the mask.  The defendant’s presence in the shop must have by deduction been between the hours of 8 pm and 8 am when PW1 left and returned to the shop. 

28. The defendant was a stranger to PW1, PW1 did not know him nor had she seen him before what was he doing at the shop?

29. The evidence before me leads overwhelmingly to an irresistible inference that the only reason why the defendant was at the shop between 11 March at 8 pm and 12 March at 8 am was because he was the person who had committed the burglary at the shop. 

30. Conclusion

Despite Mr Cheung’s bold efforts at undermining the prosecution evidence he was unable to do so.

31. The prosecution witnesses were honest and reliable.  On the evidence before me I was satisfied that the prosecution had proved beyond all reasonable doubt that the defendant is guilty of the charge. I convict him of the charge accordingly.