A A
B DCCC 362/2011 B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
CRIMINAL CASE NO. 362 OF 2011
E ----------------- E
HKSAR
F F
v.
G Ng Chun-fai G
-----------------
H H
I Coram: Deputy District Judge Chainrai I
Date: 22 March 2012
J J
Present: Ms Lorinda Lau, Counsel on fiat, for HKSAR
K K
Mr Duncan Percy, instructed by Ivan Tang & Co, for the
L
defendant L
Offence: Burglary (入屋犯法罪)
M M
N REASONS FOR VERDICT N
O O
The defendant herein faces a charge of burglary, contrary to
P section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. He denied the P
charge of burglary.
Q Q
R 2. There were five prosecution witnesses. At the conclusion of R
the Prosecution case, Mr Percy for the defendant made a submission of no
S S
case to answer on the charge. After hearing submissions from him and
T from prosecution counsel, I found that there was a case to answer. Having T
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B had his rights explained to him by counsel, the defendant elected not to B
give evidence but called one defence witness. At the conclusion of the
C C
evidence, I heard closing submissions from counsel, and adjourned the
D matter until today for verdict. D
E E
3. I bore in mind at all times that the burden of proof remained
F throughout upon the prosecution to prove guilt beyond all reasonable F
doubt. The defendant elected not to give evidence. That was his right and
G G
I drew no adverse inference against him for exercising that right.
H H
4. I do not intend to repeat all the evidence that was adduced.
I I
Suffice to say that I have considered all the evidence adduced before me as
J well as the submissions of counsel. It was not disputed that the premises in J
question were burgled at the material time. The only issue is whether the
K K
prosecution has proved to the requisite standard that the defendant was one
L L
of the burglars of the premises at the material time.
M M
5. Facts admitted by the defendant under section 65C of the
N N
Criminal Procedure Ordinance, Cap 221, marked as exhibit P8, disclosed
O that: O
P P
(a) At the material time in 2003, Fu Hua Chemical
Q Industrial Ltd (hereinafter referred to as ‘Fu Hua’) was Q
located at Unit 5, 16th floor, Millenium Trade Centre,
R R
No 56 Kwai Cheong Road, Kwai Chung. This was an
S office and not open to the public. S
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B (b) At around 1930 hours on 26 February 2003, a staff B
member of Fu Hua, Ms Yammie Lam Yin-fong, left the
C C
office – she was the last member of staff to leave the
D office, and secured the office when she left. The next D
day, 27 February 2003, another staff member, Ms Lo
E E
Wun Kwai, was the first one to come to work. She
F noticed that the lock of the front door of the premises F
had been prized, the premises had been ransacked, and
G G
the drawers prized open. She noticed two empty
H bottles of distilled water, one on an unoccupied desk H
and one on the boss’s desk. Neither bottle had been on
I I
the respective desks before the burglary. Ms Lo
J recognized the brand of the distilled water, namely J
‘Sun ray Cave’, to be the same brand as that of the
K K
distilled water she bought for the company, which were
L L
stored in the company’s refrigerator in the premises.
M
Photographs were taken of the premises depicting their M
condition, and these were produced by agreement and
N N
marked exhibit P7(1) to (9). The two empty distilled
O water bottles can be seen in photos 7 and 8, and the O
refrigerator where similar distilled water bottles were
P P
stored can be seen in photo 9.
Q Q
(c) On 27 February 2003, PC 51211, PW4 in these
R R
proceedings, lifted DNA samples from the mouths of
S the two empty distilled water bottles, which he labeled S
‘A’ and ‘B’, and these were subsequently labelled as
T T
GPL 4604 and GPL 4605 respectively. The bottle
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B relevant to these proceedings from which a DNA B
sample was lifted from the mouth is Bottle A, and the
C C
DNA sample was labeled with the laboratory reference
D GPL 4604. On 10 March 2003, DSPC 47123 signed D
and collected the said DNA samples and delivered
E E
them to the Government Laboratory for analysis. The
F said DNA samples were examined by forensic scientist F
Lai Kam Ming, PW2 in these proceedings. The chain
G G
of evidence in respect of the DNA samples after DSPC
H 47123 signed, collected and delivered the said DNA H
samples to the Government Laboratory for analysis
I I
was not challenged.
J J
(d) The defendant was arrested by DSPC 49191 on
K K
17 August 2010 at 1020 hours for the present offence.
L
Under caution, the defendant said “I don’t know”. L
M M
(e) In 2010, DSPC 51398, PW3 in these proceedings, took
N N
DNA samples from the defendant, labeled AA227424.
O Forensic scientist Luk Duen Yee, PW1 in these O
proceedings, examined the DNA samples obtained
P P
from the defendant. The continuity and authenticity of
Q the DNA samples collected from the defendant was not Q
challenged.
R R
S S
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B (f) Government chemist Ho Siu-hong, PW5 in these B
proceedings, had examined the DNA samples obtained
C C
from bottle A, labeled GPL 4604 and the DNA samples
D of the defendant, labeled AA227424. D
E E
(g) The movement record of the Immigration Department,
F exhibit P6, disclosed that the defendant was in Hong F
Kong at the material time of the burglary.
G G
H 6. Although reference was made in the admitted facts to ‘witness H
statements’ prepared by PW1, PW2 and PW5 in respect of their handling
I I
of the DNA samples, these ‘witness statements’ were not produced in
J evidence. J
K K
7. PW1, Ms Luk Duen Yee is a forensic scientist working in the
L L
Government Laboratory, and has been one since June 2002. Her expertise
M
was not challenged by the defence. She examined the buccal swab samples M
obtained by DSPC 51398 from the defendant and submitted for analysis on
N N
16 August 2010. The 2 buccal swabs, each contained in a tube, were sealed
O in a tamper proof evidence bag and labeled AA 22742 – after receiving O
them, she labeled each tube with a unique laboratory reference number,
P P
DDU 3037 and DDU 3038 respectively. She extracted the DNA from the
Q buccal swab sample labeled DDU 3037 and analyzed the extracted DNA Q
using the amplification kit called identifiler marketed by Applied
R R
Bio-systems, which analyzed 15 different DNA systems together with a
S sex determining system – the purpose of her examination was to determine S
the DNA profile of the donor of the DNA on the buccal swab sample, ie the
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defendant herein. The result would be compared with the DNA profile of
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B the donor of the DNA found from the crime scene sample by her B
colleagues in the Biological Sciences Section. She was able to determine
C C
that the sex of the donor was male. As she was able to successfully extract
D the DNA from the buccal swab sample labeled DDU 3037, she did not D
need to use the buccal swab sample labeled DDU 3038. She recorded the
E E
results of her findings and this was produced and marked as exhibit P9.
F The source for her findings as recorded in exhibit P9 was an F
electro-pherogram (hereinafter referred to as an ‘EPG’) which was
G G
produced and marked as exhibit P10. The DNA sample which passes
H through the genetic analyzer would be transformed and represented as H
peaks, and the numbers beneath each peak are the number of repeats of a
I I
specific DNA region, which represents an individual’s DNA
J characteristics, as can be seen from exhibit P10. She also prepared at the J
same time the typing table, exhibit P11, which sets out the results of her
K K
examination of the sample marked AA 227424.
L L
M
8. In examination-in-chief, she said that to her knowledge, M
unless a DNA sample donor had an identical twin, the DNA sample donor
N N
would be the only person who could have such DNA profile – it was
O unlikely for someone else to have an identical DNA profile. She agreed O
under cross-examination that siblings of the same parents often shared
P P
genetic markers at several locations, but it would not be identical at all
Q locations. However, she emphasized that that was not her area of expertise, Q
nor was she an expert in the statistical area – her role here was to conduct
R R
the DNA profile testing of the samples that she received, ie the defendant’s
S DNA samples. She added that she based her comment in respect of only S
identical twins having identical DNA profiling from articles, journals and
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text books.
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B B
9. PW2, Dr Lai Kam-ming, is employed as a chemist at the
C C
Forensic Science Division of the Government Laboratory since 1991. His
D expertise was not challenged by the defence. His major responsibilities D
include the detection and identification of human body materials such as
E E
semen, blood, etc and the analysis of such. In March 2003, he was attached
F to the Biochemical Sciences Section of the Government Laboratory, and F
his main duties included the examination of case exhibits collected from
G G
crime scenes for the presence of human bodily materials and the
H subsequent analysis using DNA profiling techniques in order to determine H
their possible source. On 10 March 2003, DPC 47123 delivered a number
I I
of items to the Government Laboratory for analysis, including a cotton
J swab labeled GPL 4604. Human DNA was detected after analysis of the J
sample. The DNA was from a single source. He used DNA profiling
K K
techniques and sex typing tests to establish the DNA profile of the DNA
L L
extracted from the sample as well as the sex of the donor, and from his
M
results concluded that the donor was male. At the time, the re-agent kit M
used by the Government Laboratory analyzed 9 DNA systems. The DNA
N N
typing table he prepared was produced and marked as exhibit P12. The
O relevant entry is that for the sample with the lab reference GPL 4604. He O
prepared exhibit P12 from the test results that were recorded and checked
P P
by him, at page 17 of the case file, which was produced and marked exhibit
Q P14. His colleague, Dr H L Wun, also checked the results, which was at Q
page 16 of the case file, and produced and marked as exhibit P13. The
R R
EPG from which he obtained the results that he recorded on exhibit P14
S was produced and marked as exhibit P15. He did not detect any S
abnormality nor anything suspicious in the test results. From about 2005 to
T T
2006, 15 DNA systems have been analyzed including the 9 that were
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B examined in 2003 using the identifiler re-agent kit. In his experience, there B
was only one occasion when samples of DNA of a pair of identical twins
C C
were examined and the DNA result of the 2 samples was indistinguishable.
D D
10. Leave was sought by the prosecution to recall PW2 after the
E E
testimony of PW5, Dr Ho, as a result of questions put to PW5. The defence
F had no objection to PW2 being recalled, and I granted the prosecution F
application.
G G
H 11. PW2 was questioned about whether he had kept a log of when H
he had been given the samples and where he had kept these. He confirmed
I I
that he had kept such a record, on the back of his case file. No issue was
J taken that the photocopy of that log be produced, and it was produced and J
marked as exhibit P18, and shows the movement records of the samples
K K
retrieved at the scene which were sent to the Government Laboratory for
L L
analysis. PW2 received the sample marked GPL 4604 on 2 August 2003
M
from ‘F9C’, the freezer for storage of samples located in the strong room of M
the reception counter of the Government Laboratory, and stored it in a
N N
locked bin marked ‘KML1’ in his section “BSS” ie the Biochemical
O Sciences Section. He returned the samples on 16 December 2003, and O
these were returned to the police on 6 February 2004. PW2 described how
P P
he dealt with the sample cotton swab marked GPL 4604 – how he extracted
Q the DNA from the sample in solution form. He used a portion of the Q
extracted DNA for analysis using the profiler+ reagent kit. He stored the
R R
balance DNA in solution form in a freezer. Exhibit P23(1) to (4) are four
S photos that depicted how the balance DNA solution was stored. The tube S
containing the balance DNA solution was marked with a label ‘L4604-M’,
T T
as shown on photos 3 and 4, and then the tube was stored in the box marked
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B ‘DF5 2C Box 7’ shown in photo 1, in the first row under the number ‘2’ as B
depicted in photo 2. DNA solution stored in the freezer could be preserved,
C C
even for 10 years, if properly extracted and stored, which he confirmed
D was the case in respect of the DNA extracted from the sample marked GPL D
4604. He was asked about whether he had come across genotyping errors
E E
being committed by the Laboratory caused by using the reagent kit
F profiler+. He said he could not recall any such error in the couple of F
thousand of such analysis that were carried out. The reagent kit identifiler
G G
was first used in the Laboratory in around 2005 to 2006 – it was used
H because it could analyze 15 DNA systems compared with 9 using profiler+, H
thus information in 6 more DNA systems could be obtained, and thus he
I I
felt that identifiler was superior to profiler+. There was also a world-wide
J trend to replace profiler+ with identifiler. He said that the reliability of J
profiler+ had not been questioned by the forensic community worldwide,
K K
but readings from profiler+ and identifiler could be different because of the
L L
different design of the 2 re-agent boxes, and he viewed the identifiler as the
M
more superior. He also said that it was more preferable to use the same M
re-agent box to analyze samples.
N N
O 12. PW3, DSPC 51398, testified that on 26 August 2010, he O
collected the DNA sample of the defendant herein. He had attended a
P P
course in buccal swab sampling in 2006, and thereafter had been obtaining
Q DNA samples from suspects. He explained the procedure for obtaining Q
such samples – he had to apply for a Pol 1065 form from his superior,
R R
whose rank should be that of superintendant or above, and then he had to
S prepare a set of Pol 1066 forms in duplicate, and he would bring along a set S
of buccal swab tools, the apparatus required to obtain buccal swab samples,
T T
and he would then go to see the suspect. Pol 1065 is the authorization for
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B obtaining DNA samples from a suspect, and authorizes him to use B
reasonable force to obtain the DNA sample if the suspect is unco-operative.
C C
Pol 1066 is the form to be signed by the suspect indicating his consent for
D DNA samples to be taken from him. After the suspect has indicated his D
consent and signed on Pol 1066, he would then begin to obtain the DNA
E E
sample from the suspect. He produced sample DNA collection kit, exhibit
F P16, what he had used to obtain the DNA sample from the defendant. He F
confirmed that exhibit P4 and P5, which had been produced by agreement,
G G
were the Pol 1066 and Pol 1065 forms in respect of the defendant. The
H defendant had signed on exhibit P4 to indicate he consented to the DNA H
sample being taken from him, and that he understood the procedure and
I I
purpose of the taking of the DNA sample from him.
J J
13. The exhibits marked exhibits P1 to P7 were admitted into
K K
evidence by agreement between the prosecution and defence. Exhibit P1
L L
was the handover form of DNA sample exhibit, wherein PC 51211 handed
M
over the exhibits as set out in the form, being the exhibits seized from the M
burgled premises with potential DNA traces including the latent DNA
N N
swab taken from the opening of the 2 distilled water bottles, to DPC 47123
O on 27 February 2003. Exhibit P2 is the form referred to as Pol 160, setting O
out the exhibits that were delivered by DPC 47123 to the Government
P P
Laboratory for forensic examination and included the DNA swab taken
Q from the 2 bottles of distilled water. Exhibit P3 was the Pol 160 form Q
referred to by PW3 in his testimony, which he handed over to the
R R
Government Laboratory together with the 2 DNA buccal samples that he
S had obtained from the defendant for forensic DNA examination. Exhibit S
P4 was the Pol 1066 form, ‘notice to person under section 59C of the
T T
Police Force Ordinance (Cap 232 as amended) provision of non-intimate
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B sample’ that PW3 served on the defendant explaining to him about the B
obtaining of the buccal swabs from him and the purpose for so doing – the
C C
defendant had signed on this form to confirm that he had been informed of
D the contents of the notice and he gave his consent for the taking of the D
buccal swab samples for forensic analysis and acknowledged receipt of the
E E
notice. Exhibit P5 is the form Pol 1065 PW3 referred to in his testimony,
F wherein he was authorized to obtain the buccal swab samples from the F
defendant.
G G
H 14. PW4, PC 51211, was the police officer who had lifted the H
DNA samples using cotton swabs from the mouths of the 2 distilled water
I I
bottles at the burgled premises, which he had marked ‘A’ and ‘B’. The 2
J swabs with the DNA samples were labeled by the Government Laboratory J
as GPL 4604 and GPL 4605 respectively. He had received training on
K K
human swab sampling and also on the collection of DNA materials from
L L
crime scenes. He had collected the exhibits at the burgled premises and
M
subsequently handed these to DPC 47123 – he had no reason to believe that M
the DNA samples had been contaminated. He rubbed the cotton swabs
N N
around each of the exhibit bottles and put these swabs into sterilized plastic
O tubes, and labeled them and sealed the tubes in a plastic bag with adhesive O
tapes and signed on the plastic bag. He kept the DNA samples in his
P P
custody until he handed these to DPC 47123.
Q Q
15. PW5, Dr Ho Siu-hong, has been employed in the Forensic
R R
Science Division of the Government Laboratory since December 2000 as a
S government chemist, and his major duties include the detection and S
identification of human body materials such as semen, blood, etc and the
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individualization of such by using DNA technology. His expertise was not
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B challenged by the defence. He conducted a comparison of the DNA B
sample labeled GPL 4604 taken from a bottle and the DNA sample from
C C
the defendant labeled AA 227424 to see if the DNA profiles of the two
D matched. He compared the DNA profiles obtained by PW1 and PW2, D
exhibits P9 and P12 herein, and found that it matched in all of the DNA
E E
systems tested except one. He described it as a ‘partial match’ as allele 11
F was detected in the analysis conducted by PW2. When PW2 had F
conducted his analysis of the crime scene DNA sample in 2003, he had
G G
used a re-agent kit that examined 9 DNA systems, profiler+, whilst PW1
H had analyzed the DNA that she obtained from the buccal swabs obtained H
from the defendant using a reagent kit that examined 15 DNA systems,
I I
identifiler, which included the 9 DNA systems that were examined by
J PW2. The result for the DNA system D8S1179 differed – the other J
systems all matched. He concluded that the difference in results could be
K K
because the results were obtained using two different DNA typing
L L
methodologies using different DNA typing reagent kits. The DNA had
M
been of good quality and the typing results looked fine as well. From his M
own experience, he felt it was best to confirm the results by re-testing the
N N
DNA obtained from the distilled water bottle, marked GPL 4604, from the
O burgled premises using the same re-agent kit as that used by PW1, ie the O
identifiler, which examined 15 DNA systems and could provide more
P P
information about more DNA systems for comparison. PW2 had
Q preserved the DNA he had extracted from the swab with human DNA Q
detected marked GPL 4604. PW5 retrieved the DNA solution that had
R R
been preserved from the storage location after obtaining authorization
S from his senior and conducted a retest for the DNA profile using the S
identifiler reagent kit. The test was successfully conducted and he
T T
obtained the DNA profile, and found that it matched completely with the
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B DNA profile obtained from PW1 from the defendant’s DNA. He had B
prepared appendices I and II to his statement, which were produced and
C C
marked exhibit P17. Appendix I disclosed the DNA typing results of the
D DNA from the cotton swab marked GPL 4604 as reported by PW2 using D
the profiler+ reagent kit whilst appendix II disclosed the DNA typing
E E
results of the re-analysis conducted by PW5 of the preserved DNA
F obtained from the cotton bud swab marked GPL 4604 using the identifiler F
reagent kit. The EPG for the re-analysis was also produced and marked as
G G
exhibit P22. PW5’s re-analysis confirmed that the donor of the DNA was a
H male. PW5 also calculated the ‘RMP’ ie the approximate combined H
random match probability of the DNA types that a randomly selected
I I
person in the local Chinese population unrelated to the possible donor as
J stated in the possible source column, ie the defendant, to be 1 in 45 J
quadrillion. The Hong Kong Government Laboratory kept a database of a
K K
few hundred DNA profiles, and this was verified statistically to be reliable,
L L
and was a well accepted way to calculate random match probability. The
M
logs showing that he had retrieved the preserved DNA from the sample M
GPL 4604 from the freezer for re-analysis were produced and marked
N N
exhibits P19 and P20. PW5 was satisfied that the preserved DNA had been
O properly stored in the freezer – the temperature of the freezer where it was O
stored was monitored continuously. Had it not been properly stored, the
P P
DNA would have degraded and he would not have been able to obtain the
Q DNA profile when he conducted the re-analysis. Here he was able to Q
complete the re-analysis successfully and there was no indication of DNA
R R
degradation. He was satisfied with the integrity of the sample when he
S retrieved it from the place where it had been stored – the packing and seal S
were all intact. PW5 also referred to the record, marked exhibit P21, which
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disclosed the method used to extract the DNA from the sample cotton bud
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B marked GPL 4604. He was cross-examined about the discordance B
between the two reagent kits – profiler+ and identifiler. He said the
C C
discordance was first reported in international scientific journals in 2003
D approximately. The profiler+ kit could not detect the allele16 in the D
D8S1179 DNA system – this was not known when the profiler+ reagent kit
E E
was developed. It was only after it had been used for a number of years
F that it became known that there were occasions that the kit could not detect F
such rare DNA characteristics. The newer reagent kits, including
G G
identifiler, could detect the rarer genetic characteristics such as allele 16.
H In his view, it did not mean that the identifiler reagent kit was more H
accurate than the profiler+ reagent kit – he emphasized the importance of
I I
using the same reagent kit when comparing DNA samples. Because the
J rare genetic characteristic allele 16 was detected, it reinforced the match of J
the 2 DNA samples and the reliability of the test result – the presence of
K K
such genetic characteristic was not a common one. PW5 was also
L L
cross-examined in respect of the random match probability calculation that
M
he had made. His calculation was based on the donor of the crime scene M
DNA sample and the defendant being unrelated. He agreed that if the
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actual donor of the crime scene DNA was a relative of the defendant, this
O might affect the calculation. But it was unlikely to be a complete match, as O
was the situation here. He was referred to a publication called ‘Dealing
P P
with DNA evidence - a legal guide’ written by Andrei Semikhodskii,
Q published in 2007. The views expressed therein were the views of the Q
author. There was nothing put before me as to the qualifications of the
R R
author, save that in the preface, it was mentioned that he was a director of
S Medical Genomics Ltd. At page 146 of his book, Mr Semikhodskii wrote S
that where it was alleged that the crime in question might have been
T T
committed by a relative of the accused, the random match probability
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B would grossly overestimate the value of DNA evidence. He referred to a B
table in ‘Statistical analyses to support forensic interpretation for a new
C C
ten-locus STR profiling system, (2001) published by Foreman LA and
D Evett IW in the Int J Leg; Med 114:147-55. PW5 said he had come across D
the table, but it was based upon the use of the SGM Plus Marker system,
E E
and not the profiler+ or identifiler systems. The table put the match
F probability where the donor could be the sibling of the accused at 1 in 10 F
thousand, and where the donor was a parent at 1 in 1 million, and where the
G G
donor was an uncle at 1 in 1 million, a nephew at 1 in 10 million, and first
H cousin 1 in 100 million and if unrelated at 1 in 1 billion. He agreed that if H
relatives were factored into the random match probability calculation,
I I
there would be a difference. But PW5 also said that in his calculation, he
J had been conservative, and had not taken account of the rare genetic J
characteristic detected, allele 16. He agreed that there was a higher
K K
probability of a relative having the same match, although he could not
L L
calculate it.
M M
16. There was one defence witness, Ng Kam Hing, the elder
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brother of the defendant. He produced a family tree of their family which
O he had prepared, marked exhibit D1, showing four generations of their O
family and the male relatives. In their immediate family, the defendant had
P P
two brothers, one being DW1 Ng Kam Hing. The defendant does not have
Q an identical twin. He has 12 male cousins. DW1 was unclear about the Q
exact whereabouts of his male relatives at the time of the burglary in 2003.
R R
Some lived in China, although they did visit Hong Kong occasionally. He
S himself had never been to the burgled premises in 2003. S
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B 17. The crux of the prosecution case is the DNA evidence. The B
defendant has made no admissions – under caution when he was arrested,
C C
he said ‘I do not know’. Although strictly that is not a denial, nor is it an
D admission, and little can be attached to what he said under caution. D
E E
18. That there had been a burglary at the material time was not
F challenged. Prosecution witnesses were cross-examined at length about F
how the crime scene DNA was obtained and stored, and how they were
G G
analyzed, and how they were kept thereafter. I was satisfied that the crime
H scene samples, in particular the cotton bud marked GPL 4604 used to H
collect the DNA sample from the crime scene from the distilled water
I I
bottle found on the table had been properly obtained and kept and had not
J been contaminated in any way prior to it having been delivered to the J
Government Laboratory for analysis. I was satisfied too that the DNA
K K
samples had been properly obtained from the defendant and properly
L L
stored and had not been contaminated in any way prior to their delivery to
M
the Government Laboratory for analysis. I was satisfied too that both PW1 M
and PW2 had properly extracted the DNA from the samples they received,
N N
and properly conducted their respective analyses of the samples, and the
O results were contained in the tables produced by them, as exhibited. PW2 O
had properly stored the preserved DNA from the cotton bud marked GPL
P P
4604, and PW5 had retrieved this preserved DNA for re-analysis using the
Q identifiler reagent kit, and the results of his retesting is contained in the Q
table produced by him.
R R
S 19. PW5 was asked to do a comparison of the results obtained by S
PW1 and PW2. Because of the discordance in these results, which he
T T
concluded was because of the different reagent kits used in the analyses, he
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B conducted a re-analysis of the preserved DNA using the same reagent kit B
as that used by PW1, which examined more DNA systems and was the
C C
more advanced one which is currently used by the Government Laboratory,
D and the results he obtained matched completely with that obtained by PW1. D
What this demonstrated was that the DNA profile of the donor of the DNA
E E
obtained from a distilled water bottle left at the burgled premises matched
F the DNA profile of the defendant. The statistical chance of selecting a F
person at random from the local Chinese population who would share the
G G
same DNA profile was one in 45 quadrillion. In his calculation of random
H match probability, PW5 did not take into account the possibility that a H
relative of the defendant might be in the pool of potential contributors to
I I
the crime scene sample. The initial result obtained by PW2 using the
J profiler+ reagent kit differed from that of PW5 using the identifiler reagent J
kit. PW5 did not seek to reanalyze the preserved DNA using the profiler+
K K
reagent kit again to verify PW2’s findings as he did not think it was
L L
necessary. PW2 maintained that both reagent kits were still retained and
M
used by the Government Laboratory. M
N N
20. DNA evidence does not establish or conclude that a defendant
O is the offender. It demonstrates that the defendant could be the offender. O
Its weight will depend on what else is known about the offender and what
P P
other evidence is presented against him. Here, there is no other evidence
Q against him, save that he was in Hong Kong on the night the premises were Q
burgled.
R R
S 21. In R v Doheny & Adams, 1997 1 Cr App R 369, the proper S
approach to be adopted where DNA evidence is involved is set out. There
T T
are 12 points to consider. I have considered these.
U U
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由此
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A A
B B
22. The defence did not challenge the statistical validity of the
C C
databases used. However, the random match probability calculation was
D queried in cross-examination. PW5 accepted that if the possibility that the D
sample came from a relative of the defendant was included in the
E E
calculation, this would affect the ratio. There are methods of calculation
F that take this into account. However, he was unable to do the calculation F
and provide this figure to the court.
G G
H 23. In the table referred to in the book produced by the defence, H
table 9.1 at page 146, where there is a sibling of the accused, the match
I I
probability is 1 in 10 thousand, a significantly lower figure than that
J provided by PW5. Here although DW1 said that he had not been to the J
burgled premises, the defendant does have another male sibling.
K K
L L
24. The burden of proof is on the prosecution to establish that it
M
was the defendant who drank from the distilled water bottle found in the M
burgled premises. I am not satisfied to the requisite standard that the
N N
burden has been discharged by the prosecution. I would say that I do find it
O extremely suspicious, but the burden of proof is one of proof beyond all O
reasonable doubt. I do have doubt, and the benefit of doubt must be to the
P P
defendant. He is acquitted of the charge.
Q Q
R R
S ( Bina Chainrai ) S
Deputy District Judge
T T
U U
V V
A A
B DCCC 362/2011 B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
CRIMINAL CASE NO. 362 OF 2011
E ----------------- E
HKSAR
F F
v.
G Ng Chun-fai G
-----------------
H H
I Coram: Deputy District Judge Chainrai I
Date: 22 March 2012
J J
Present: Ms Lorinda Lau, Counsel on fiat, for HKSAR
K K
Mr Duncan Percy, instructed by Ivan Tang & Co, for the
L
defendant L
Offence: Burglary (入屋犯法罪)
M M
N REASONS FOR VERDICT N
O O
The defendant herein faces a charge of burglary, contrary to
P section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. He denied the P
charge of burglary.
Q Q
R 2. There were five prosecution witnesses. At the conclusion of R
the Prosecution case, Mr Percy for the defendant made a submission of no
S S
case to answer on the charge. After hearing submissions from him and
T from prosecution counsel, I found that there was a case to answer. Having T
U U
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由此
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A A
B had his rights explained to him by counsel, the defendant elected not to B
give evidence but called one defence witness. At the conclusion of the
C C
evidence, I heard closing submissions from counsel, and adjourned the
D matter until today for verdict. D
E E
3. I bore in mind at all times that the burden of proof remained
F throughout upon the prosecution to prove guilt beyond all reasonable F
doubt. The defendant elected not to give evidence. That was his right and
G G
I drew no adverse inference against him for exercising that right.
H H
4. I do not intend to repeat all the evidence that was adduced.
I I
Suffice to say that I have considered all the evidence adduced before me as
J well as the submissions of counsel. It was not disputed that the premises in J
question were burgled at the material time. The only issue is whether the
K K
prosecution has proved to the requisite standard that the defendant was one
L L
of the burglars of the premises at the material time.
M M
5. Facts admitted by the defendant under section 65C of the
N N
Criminal Procedure Ordinance, Cap 221, marked as exhibit P8, disclosed
O that: O
P P
(a) At the material time in 2003, Fu Hua Chemical
Q Industrial Ltd (hereinafter referred to as ‘Fu Hua’) was Q
located at Unit 5, 16th floor, Millenium Trade Centre,
R R
No 56 Kwai Cheong Road, Kwai Chung. This was an
S office and not open to the public. S
T T
U U
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A A
B (b) At around 1930 hours on 26 February 2003, a staff B
member of Fu Hua, Ms Yammie Lam Yin-fong, left the
C C
office – she was the last member of staff to leave the
D office, and secured the office when she left. The next D
day, 27 February 2003, another staff member, Ms Lo
E E
Wun Kwai, was the first one to come to work. She
F noticed that the lock of the front door of the premises F
had been prized, the premises had been ransacked, and
G G
the drawers prized open. She noticed two empty
H bottles of distilled water, one on an unoccupied desk H
and one on the boss’s desk. Neither bottle had been on
I I
the respective desks before the burglary. Ms Lo
J recognized the brand of the distilled water, namely J
‘Sun ray Cave’, to be the same brand as that of the
K K
distilled water she bought for the company, which were
L L
stored in the company’s refrigerator in the premises.
M
Photographs were taken of the premises depicting their M
condition, and these were produced by agreement and
N N
marked exhibit P7(1) to (9). The two empty distilled
O water bottles can be seen in photos 7 and 8, and the O
refrigerator where similar distilled water bottles were
P P
stored can be seen in photo 9.
Q Q
(c) On 27 February 2003, PC 51211, PW4 in these
R R
proceedings, lifted DNA samples from the mouths of
S the two empty distilled water bottles, which he labeled S
‘A’ and ‘B’, and these were subsequently labelled as
T T
GPL 4604 and GPL 4605 respectively. The bottle
U U
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由此
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A A
B relevant to these proceedings from which a DNA B
sample was lifted from the mouth is Bottle A, and the
C C
DNA sample was labeled with the laboratory reference
D GPL 4604. On 10 March 2003, DSPC 47123 signed D
and collected the said DNA samples and delivered
E E
them to the Government Laboratory for analysis. The
F said DNA samples were examined by forensic scientist F
Lai Kam Ming, PW2 in these proceedings. The chain
G G
of evidence in respect of the DNA samples after DSPC
H 47123 signed, collected and delivered the said DNA H
samples to the Government Laboratory for analysis
I I
was not challenged.
J J
(d) The defendant was arrested by DSPC 49191 on
K K
17 August 2010 at 1020 hours for the present offence.
L
Under caution, the defendant said “I don’t know”. L
M M
(e) In 2010, DSPC 51398, PW3 in these proceedings, took
N N
DNA samples from the defendant, labeled AA227424.
O Forensic scientist Luk Duen Yee, PW1 in these O
proceedings, examined the DNA samples obtained
P P
from the defendant. The continuity and authenticity of
Q the DNA samples collected from the defendant was not Q
challenged.
R R
S S
T T
U U
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由此
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A A
B (f) Government chemist Ho Siu-hong, PW5 in these B
proceedings, had examined the DNA samples obtained
C C
from bottle A, labeled GPL 4604 and the DNA samples
D of the defendant, labeled AA227424. D
E E
(g) The movement record of the Immigration Department,
F exhibit P6, disclosed that the defendant was in Hong F
Kong at the material time of the burglary.
G G
H 6. Although reference was made in the admitted facts to ‘witness H
statements’ prepared by PW1, PW2 and PW5 in respect of their handling
I I
of the DNA samples, these ‘witness statements’ were not produced in
J evidence. J
K K
7. PW1, Ms Luk Duen Yee is a forensic scientist working in the
L L
Government Laboratory, and has been one since June 2002. Her expertise
M
was not challenged by the defence. She examined the buccal swab samples M
obtained by DSPC 51398 from the defendant and submitted for analysis on
N N
16 August 2010. The 2 buccal swabs, each contained in a tube, were sealed
O in a tamper proof evidence bag and labeled AA 22742 – after receiving O
them, she labeled each tube with a unique laboratory reference number,
P P
DDU 3037 and DDU 3038 respectively. She extracted the DNA from the
Q buccal swab sample labeled DDU 3037 and analyzed the extracted DNA Q
using the amplification kit called identifiler marketed by Applied
R R
Bio-systems, which analyzed 15 different DNA systems together with a
S sex determining system – the purpose of her examination was to determine S
the DNA profile of the donor of the DNA on the buccal swab sample, ie the
T T
defendant herein. The result would be compared with the DNA profile of
U U
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由此
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A A
B the donor of the DNA found from the crime scene sample by her B
colleagues in the Biological Sciences Section. She was able to determine
C C
that the sex of the donor was male. As she was able to successfully extract
D the DNA from the buccal swab sample labeled DDU 3037, she did not D
need to use the buccal swab sample labeled DDU 3038. She recorded the
E E
results of her findings and this was produced and marked as exhibit P9.
F The source for her findings as recorded in exhibit P9 was an F
electro-pherogram (hereinafter referred to as an ‘EPG’) which was
G G
produced and marked as exhibit P10. The DNA sample which passes
H through the genetic analyzer would be transformed and represented as H
peaks, and the numbers beneath each peak are the number of repeats of a
I I
specific DNA region, which represents an individual’s DNA
J characteristics, as can be seen from exhibit P10. She also prepared at the J
same time the typing table, exhibit P11, which sets out the results of her
K K
examination of the sample marked AA 227424.
L L
M
8. In examination-in-chief, she said that to her knowledge, M
unless a DNA sample donor had an identical twin, the DNA sample donor
N N
would be the only person who could have such DNA profile – it was
O unlikely for someone else to have an identical DNA profile. She agreed O
under cross-examination that siblings of the same parents often shared
P P
genetic markers at several locations, but it would not be identical at all
Q locations. However, she emphasized that that was not her area of expertise, Q
nor was she an expert in the statistical area – her role here was to conduct
R R
the DNA profile testing of the samples that she received, ie the defendant’s
S DNA samples. She added that she based her comment in respect of only S
identical twins having identical DNA profiling from articles, journals and
T T
text books.
U U
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由此
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A A
B B
9. PW2, Dr Lai Kam-ming, is employed as a chemist at the
C C
Forensic Science Division of the Government Laboratory since 1991. His
D expertise was not challenged by the defence. His major responsibilities D
include the detection and identification of human body materials such as
E E
semen, blood, etc and the analysis of such. In March 2003, he was attached
F to the Biochemical Sciences Section of the Government Laboratory, and F
his main duties included the examination of case exhibits collected from
G G
crime scenes for the presence of human bodily materials and the
H subsequent analysis using DNA profiling techniques in order to determine H
their possible source. On 10 March 2003, DPC 47123 delivered a number
I I
of items to the Government Laboratory for analysis, including a cotton
J swab labeled GPL 4604. Human DNA was detected after analysis of the J
sample. The DNA was from a single source. He used DNA profiling
K K
techniques and sex typing tests to establish the DNA profile of the DNA
L L
extracted from the sample as well as the sex of the donor, and from his
M
results concluded that the donor was male. At the time, the re-agent kit M
used by the Government Laboratory analyzed 9 DNA systems. The DNA
N N
typing table he prepared was produced and marked as exhibit P12. The
O relevant entry is that for the sample with the lab reference GPL 4604. He O
prepared exhibit P12 from the test results that were recorded and checked
P P
by him, at page 17 of the case file, which was produced and marked exhibit
Q P14. His colleague, Dr H L Wun, also checked the results, which was at Q
page 16 of the case file, and produced and marked as exhibit P13. The
R R
EPG from which he obtained the results that he recorded on exhibit P14
S was produced and marked as exhibit P15. He did not detect any S
abnormality nor anything suspicious in the test results. From about 2005 to
T T
2006, 15 DNA systems have been analyzed including the 9 that were
U U
V V
由此
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A A
B examined in 2003 using the identifiler re-agent kit. In his experience, there B
was only one occasion when samples of DNA of a pair of identical twins
C C
were examined and the DNA result of the 2 samples was indistinguishable.
D D
10. Leave was sought by the prosecution to recall PW2 after the
E E
testimony of PW5, Dr Ho, as a result of questions put to PW5. The defence
F had no objection to PW2 being recalled, and I granted the prosecution F
application.
G G
H 11. PW2 was questioned about whether he had kept a log of when H
he had been given the samples and where he had kept these. He confirmed
I I
that he had kept such a record, on the back of his case file. No issue was
J taken that the photocopy of that log be produced, and it was produced and J
marked as exhibit P18, and shows the movement records of the samples
K K
retrieved at the scene which were sent to the Government Laboratory for
L L
analysis. PW2 received the sample marked GPL 4604 on 2 August 2003
M
from ‘F9C’, the freezer for storage of samples located in the strong room of M
the reception counter of the Government Laboratory, and stored it in a
N N
locked bin marked ‘KML1’ in his section “BSS” ie the Biochemical
O Sciences Section. He returned the samples on 16 December 2003, and O
these were returned to the police on 6 February 2004. PW2 described how
P P
he dealt with the sample cotton swab marked GPL 4604 – how he extracted
Q the DNA from the sample in solution form. He used a portion of the Q
extracted DNA for analysis using the profiler+ reagent kit. He stored the
R R
balance DNA in solution form in a freezer. Exhibit P23(1) to (4) are four
S photos that depicted how the balance DNA solution was stored. The tube S
containing the balance DNA solution was marked with a label ‘L4604-M’,
T T
as shown on photos 3 and 4, and then the tube was stored in the box marked
U U
V V
由此
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A A
B ‘DF5 2C Box 7’ shown in photo 1, in the first row under the number ‘2’ as B
depicted in photo 2. DNA solution stored in the freezer could be preserved,
C C
even for 10 years, if properly extracted and stored, which he confirmed
D was the case in respect of the DNA extracted from the sample marked GPL D
4604. He was asked about whether he had come across genotyping errors
E E
being committed by the Laboratory caused by using the reagent kit
F profiler+. He said he could not recall any such error in the couple of F
thousand of such analysis that were carried out. The reagent kit identifiler
G G
was first used in the Laboratory in around 2005 to 2006 – it was used
H because it could analyze 15 DNA systems compared with 9 using profiler+, H
thus information in 6 more DNA systems could be obtained, and thus he
I I
felt that identifiler was superior to profiler+. There was also a world-wide
J trend to replace profiler+ with identifiler. He said that the reliability of J
profiler+ had not been questioned by the forensic community worldwide,
K K
but readings from profiler+ and identifiler could be different because of the
L L
different design of the 2 re-agent boxes, and he viewed the identifiler as the
M
more superior. He also said that it was more preferable to use the same M
re-agent box to analyze samples.
N N
O 12. PW3, DSPC 51398, testified that on 26 August 2010, he O
collected the DNA sample of the defendant herein. He had attended a
P P
course in buccal swab sampling in 2006, and thereafter had been obtaining
Q DNA samples from suspects. He explained the procedure for obtaining Q
such samples – he had to apply for a Pol 1065 form from his superior,
R R
whose rank should be that of superintendant or above, and then he had to
S prepare a set of Pol 1066 forms in duplicate, and he would bring along a set S
of buccal swab tools, the apparatus required to obtain buccal swab samples,
T T
and he would then go to see the suspect. Pol 1065 is the authorization for
U U
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由此
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A A
B obtaining DNA samples from a suspect, and authorizes him to use B
reasonable force to obtain the DNA sample if the suspect is unco-operative.
C C
Pol 1066 is the form to be signed by the suspect indicating his consent for
D DNA samples to be taken from him. After the suspect has indicated his D
consent and signed on Pol 1066, he would then begin to obtain the DNA
E E
sample from the suspect. He produced sample DNA collection kit, exhibit
F P16, what he had used to obtain the DNA sample from the defendant. He F
confirmed that exhibit P4 and P5, which had been produced by agreement,
G G
were the Pol 1066 and Pol 1065 forms in respect of the defendant. The
H defendant had signed on exhibit P4 to indicate he consented to the DNA H
sample being taken from him, and that he understood the procedure and
I I
purpose of the taking of the DNA sample from him.
J J
13. The exhibits marked exhibits P1 to P7 were admitted into
K K
evidence by agreement between the prosecution and defence. Exhibit P1
L L
was the handover form of DNA sample exhibit, wherein PC 51211 handed
M
over the exhibits as set out in the form, being the exhibits seized from the M
burgled premises with potential DNA traces including the latent DNA
N N
swab taken from the opening of the 2 distilled water bottles, to DPC 47123
O on 27 February 2003. Exhibit P2 is the form referred to as Pol 160, setting O
out the exhibits that were delivered by DPC 47123 to the Government
P P
Laboratory for forensic examination and included the DNA swab taken
Q from the 2 bottles of distilled water. Exhibit P3 was the Pol 160 form Q
referred to by PW3 in his testimony, which he handed over to the
R R
Government Laboratory together with the 2 DNA buccal samples that he
S had obtained from the defendant for forensic DNA examination. Exhibit S
P4 was the Pol 1066 form, ‘notice to person under section 59C of the
T T
Police Force Ordinance (Cap 232 as amended) provision of non-intimate
U U
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由此
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A A
B sample’ that PW3 served on the defendant explaining to him about the B
obtaining of the buccal swabs from him and the purpose for so doing – the
C C
defendant had signed on this form to confirm that he had been informed of
D the contents of the notice and he gave his consent for the taking of the D
buccal swab samples for forensic analysis and acknowledged receipt of the
E E
notice. Exhibit P5 is the form Pol 1065 PW3 referred to in his testimony,
F wherein he was authorized to obtain the buccal swab samples from the F
defendant.
G G
H 14. PW4, PC 51211, was the police officer who had lifted the H
DNA samples using cotton swabs from the mouths of the 2 distilled water
I I
bottles at the burgled premises, which he had marked ‘A’ and ‘B’. The 2
J swabs with the DNA samples were labeled by the Government Laboratory J
as GPL 4604 and GPL 4605 respectively. He had received training on
K K
human swab sampling and also on the collection of DNA materials from
L L
crime scenes. He had collected the exhibits at the burgled premises and
M
subsequently handed these to DPC 47123 – he had no reason to believe that M
the DNA samples had been contaminated. He rubbed the cotton swabs
N N
around each of the exhibit bottles and put these swabs into sterilized plastic
O tubes, and labeled them and sealed the tubes in a plastic bag with adhesive O
tapes and signed on the plastic bag. He kept the DNA samples in his
P P
custody until he handed these to DPC 47123.
Q Q
15. PW5, Dr Ho Siu-hong, has been employed in the Forensic
R R
Science Division of the Government Laboratory since December 2000 as a
S government chemist, and his major duties include the detection and S
identification of human body materials such as semen, blood, etc and the
T T
individualization of such by using DNA technology. His expertise was not
U U
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由此
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A A
B challenged by the defence. He conducted a comparison of the DNA B
sample labeled GPL 4604 taken from a bottle and the DNA sample from
C C
the defendant labeled AA 227424 to see if the DNA profiles of the two
D matched. He compared the DNA profiles obtained by PW1 and PW2, D
exhibits P9 and P12 herein, and found that it matched in all of the DNA
E E
systems tested except one. He described it as a ‘partial match’ as allele 11
F was detected in the analysis conducted by PW2. When PW2 had F
conducted his analysis of the crime scene DNA sample in 2003, he had
G G
used a re-agent kit that examined 9 DNA systems, profiler+, whilst PW1
H had analyzed the DNA that she obtained from the buccal swabs obtained H
from the defendant using a reagent kit that examined 15 DNA systems,
I I
identifiler, which included the 9 DNA systems that were examined by
J PW2. The result for the DNA system D8S1179 differed – the other J
systems all matched. He concluded that the difference in results could be
K K
because the results were obtained using two different DNA typing
L L
methodologies using different DNA typing reagent kits. The DNA had
M
been of good quality and the typing results looked fine as well. From his M
own experience, he felt it was best to confirm the results by re-testing the
N N
DNA obtained from the distilled water bottle, marked GPL 4604, from the
O burgled premises using the same re-agent kit as that used by PW1, ie the O
identifiler, which examined 15 DNA systems and could provide more
P P
information about more DNA systems for comparison. PW2 had
Q preserved the DNA he had extracted from the swab with human DNA Q
detected marked GPL 4604. PW5 retrieved the DNA solution that had
R R
been preserved from the storage location after obtaining authorization
S from his senior and conducted a retest for the DNA profile using the S
identifiler reagent kit. The test was successfully conducted and he
T T
obtained the DNA profile, and found that it matched completely with the
U U
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由此
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A A
B DNA profile obtained from PW1 from the defendant’s DNA. He had B
prepared appendices I and II to his statement, which were produced and
C C
marked exhibit P17. Appendix I disclosed the DNA typing results of the
D DNA from the cotton swab marked GPL 4604 as reported by PW2 using D
the profiler+ reagent kit whilst appendix II disclosed the DNA typing
E E
results of the re-analysis conducted by PW5 of the preserved DNA
F obtained from the cotton bud swab marked GPL 4604 using the identifiler F
reagent kit. The EPG for the re-analysis was also produced and marked as
G G
exhibit P22. PW5’s re-analysis confirmed that the donor of the DNA was a
H male. PW5 also calculated the ‘RMP’ ie the approximate combined H
random match probability of the DNA types that a randomly selected
I I
person in the local Chinese population unrelated to the possible donor as
J stated in the possible source column, ie the defendant, to be 1 in 45 J
quadrillion. The Hong Kong Government Laboratory kept a database of a
K K
few hundred DNA profiles, and this was verified statistically to be reliable,
L L
and was a well accepted way to calculate random match probability. The
M
logs showing that he had retrieved the preserved DNA from the sample M
GPL 4604 from the freezer for re-analysis were produced and marked
N N
exhibits P19 and P20. PW5 was satisfied that the preserved DNA had been
O properly stored in the freezer – the temperature of the freezer where it was O
stored was monitored continuously. Had it not been properly stored, the
P P
DNA would have degraded and he would not have been able to obtain the
Q DNA profile when he conducted the re-analysis. Here he was able to Q
complete the re-analysis successfully and there was no indication of DNA
R R
degradation. He was satisfied with the integrity of the sample when he
S retrieved it from the place where it had been stored – the packing and seal S
were all intact. PW5 also referred to the record, marked exhibit P21, which
T T
disclosed the method used to extract the DNA from the sample cotton bud
U U
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由此
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A A
B marked GPL 4604. He was cross-examined about the discordance B
between the two reagent kits – profiler+ and identifiler. He said the
C C
discordance was first reported in international scientific journals in 2003
D approximately. The profiler+ kit could not detect the allele16 in the D
D8S1179 DNA system – this was not known when the profiler+ reagent kit
E E
was developed. It was only after it had been used for a number of years
F that it became known that there were occasions that the kit could not detect F
such rare DNA characteristics. The newer reagent kits, including
G G
identifiler, could detect the rarer genetic characteristics such as allele 16.
H In his view, it did not mean that the identifiler reagent kit was more H
accurate than the profiler+ reagent kit – he emphasized the importance of
I I
using the same reagent kit when comparing DNA samples. Because the
J rare genetic characteristic allele 16 was detected, it reinforced the match of J
the 2 DNA samples and the reliability of the test result – the presence of
K K
such genetic characteristic was not a common one. PW5 was also
L L
cross-examined in respect of the random match probability calculation that
M
he had made. His calculation was based on the donor of the crime scene M
DNA sample and the defendant being unrelated. He agreed that if the
N N
actual donor of the crime scene DNA was a relative of the defendant, this
O might affect the calculation. But it was unlikely to be a complete match, as O
was the situation here. He was referred to a publication called ‘Dealing
P P
with DNA evidence - a legal guide’ written by Andrei Semikhodskii,
Q published in 2007. The views expressed therein were the views of the Q
author. There was nothing put before me as to the qualifications of the
R R
author, save that in the preface, it was mentioned that he was a director of
S Medical Genomics Ltd. At page 146 of his book, Mr Semikhodskii wrote S
that where it was alleged that the crime in question might have been
T T
committed by a relative of the accused, the random match probability
U U
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由此
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A A
B would grossly overestimate the value of DNA evidence. He referred to a B
table in ‘Statistical analyses to support forensic interpretation for a new
C C
ten-locus STR profiling system, (2001) published by Foreman LA and
D Evett IW in the Int J Leg; Med 114:147-55. PW5 said he had come across D
the table, but it was based upon the use of the SGM Plus Marker system,
E E
and not the profiler+ or identifiler systems. The table put the match
F probability where the donor could be the sibling of the accused at 1 in 10 F
thousand, and where the donor was a parent at 1 in 1 million, and where the
G G
donor was an uncle at 1 in 1 million, a nephew at 1 in 10 million, and first
H cousin 1 in 100 million and if unrelated at 1 in 1 billion. He agreed that if H
relatives were factored into the random match probability calculation,
I I
there would be a difference. But PW5 also said that in his calculation, he
J had been conservative, and had not taken account of the rare genetic J
characteristic detected, allele 16. He agreed that there was a higher
K K
probability of a relative having the same match, although he could not
L L
calculate it.
M M
16. There was one defence witness, Ng Kam Hing, the elder
N N
brother of the defendant. He produced a family tree of their family which
O he had prepared, marked exhibit D1, showing four generations of their O
family and the male relatives. In their immediate family, the defendant had
P P
two brothers, one being DW1 Ng Kam Hing. The defendant does not have
Q an identical twin. He has 12 male cousins. DW1 was unclear about the Q
exact whereabouts of his male relatives at the time of the burglary in 2003.
R R
Some lived in China, although they did visit Hong Kong occasionally. He
S himself had never been to the burgled premises in 2003. S
T T
U U
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由此
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A A
B 17. The crux of the prosecution case is the DNA evidence. The B
defendant has made no admissions – under caution when he was arrested,
C C
he said ‘I do not know’. Although strictly that is not a denial, nor is it an
D admission, and little can be attached to what he said under caution. D
E E
18. That there had been a burglary at the material time was not
F challenged. Prosecution witnesses were cross-examined at length about F
how the crime scene DNA was obtained and stored, and how they were
G G
analyzed, and how they were kept thereafter. I was satisfied that the crime
H scene samples, in particular the cotton bud marked GPL 4604 used to H
collect the DNA sample from the crime scene from the distilled water
I I
bottle found on the table had been properly obtained and kept and had not
J been contaminated in any way prior to it having been delivered to the J
Government Laboratory for analysis. I was satisfied too that the DNA
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samples had been properly obtained from the defendant and properly
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stored and had not been contaminated in any way prior to their delivery to
M
the Government Laboratory for analysis. I was satisfied too that both PW1 M
and PW2 had properly extracted the DNA from the samples they received,
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and properly conducted their respective analyses of the samples, and the
O results were contained in the tables produced by them, as exhibited. PW2 O
had properly stored the preserved DNA from the cotton bud marked GPL
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4604, and PW5 had retrieved this preserved DNA for re-analysis using the
Q identifiler reagent kit, and the results of his retesting is contained in the Q
table produced by him.
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S 19. PW5 was asked to do a comparison of the results obtained by S
PW1 and PW2. Because of the discordance in these results, which he
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concluded was because of the different reagent kits used in the analyses, he
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由此
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A A
B conducted a re-analysis of the preserved DNA using the same reagent kit B
as that used by PW1, which examined more DNA systems and was the
C C
more advanced one which is currently used by the Government Laboratory,
D and the results he obtained matched completely with that obtained by PW1. D
What this demonstrated was that the DNA profile of the donor of the DNA
E E
obtained from a distilled water bottle left at the burgled premises matched
F the DNA profile of the defendant. The statistical chance of selecting a F
person at random from the local Chinese population who would share the
G G
same DNA profile was one in 45 quadrillion. In his calculation of random
H match probability, PW5 did not take into account the possibility that a H
relative of the defendant might be in the pool of potential contributors to
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the crime scene sample. The initial result obtained by PW2 using the
J profiler+ reagent kit differed from that of PW5 using the identifiler reagent J
kit. PW5 did not seek to reanalyze the preserved DNA using the profiler+
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reagent kit again to verify PW2’s findings as he did not think it was
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necessary. PW2 maintained that both reagent kits were still retained and
M
used by the Government Laboratory. M
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20. DNA evidence does not establish or conclude that a defendant
O is the offender. It demonstrates that the defendant could be the offender. O
Its weight will depend on what else is known about the offender and what
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other evidence is presented against him. Here, there is no other evidence
Q against him, save that he was in Hong Kong on the night the premises were Q
burgled.
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S 21. In R v Doheny & Adams, 1997 1 Cr App R 369, the proper S
approach to be adopted where DNA evidence is involved is set out. There
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are 12 points to consider. I have considered these.
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A A
B B
22. The defence did not challenge the statistical validity of the
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databases used. However, the random match probability calculation was
D queried in cross-examination. PW5 accepted that if the possibility that the D
sample came from a relative of the defendant was included in the
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calculation, this would affect the ratio. There are methods of calculation
F that take this into account. However, he was unable to do the calculation F
and provide this figure to the court.
G G
H 23. In the table referred to in the book produced by the defence, H
table 9.1 at page 146, where there is a sibling of the accused, the match
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probability is 1 in 10 thousand, a significantly lower figure than that
J provided by PW5. Here although DW1 said that he had not been to the J
burgled premises, the defendant does have another male sibling.
K K
L L
24. The burden of proof is on the prosecution to establish that it
M
was the defendant who drank from the distilled water bottle found in the M
burgled premises. I am not satisfied to the requisite standard that the
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burden has been discharged by the prosecution. I would say that I do find it
O extremely suspicious, but the burden of proof is one of proof beyond all O
reasonable doubt. I do have doubt, and the benefit of doubt must be to the
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defendant. He is acquitted of the charge.
Q Q
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S ( Bina Chainrai ) S
Deputy District Judge
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