A A
B B
DCCC 81/2017
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 81 OF 2017 E
F ------------------------- F
HKSAR
G G
v
H QAISER MUHAMMAD H
--------------------------
I I
J Before: Deputy District Judge Winnie Lau in Court J
Date: 8 August 2017 at 2.44 pm at Sha Tin Magistracies
K K
Present: Mr Sajan G Sujanani, Counsel on Fiat, for HKSAR
L Mr Mughal H Mohamed, instructed by Fu & Cheng, for the L
defendant
M M
Offence: Criminal damage (刑事損壞)
N N
O ----------------------------------------- O
REASONS FOR VERDICT
P P
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Q Q
1. The defendant pleaded not guilty to one offence of criminal
R R
damage, contrary to section 60(1) of the Crimes Ordinance.
S S
2. It is the prosecution’s allegation that, at about 00:50 am on 30
T T
March 2016, the defendant, together with other unknown males, without
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A A
B B
lawful excuse, damaged five tables, 20 glasses and one door being property
C belonging to another, intending to damage such property, at Bar Pacific, C
Ground Floor, Regal Riverside Hotel, No 34-36 Tai Chung Kiu Road, Sha
D D
Tin (“the Bar”). At the time of the offence, they were wearing gloves and
E used metal bar and hammers to smash the subject properties. E
F F
3. As revealed in the way in which the prosecution witnesses
G were cross-examined and the defence case, I note that the main issue in this G
case is whether the defendant was one of the culprits. The defence also
H H
adduced alibi evidence to show that the defendant was with his wife at the
I time of the offence. I
J J
4. The prosecution mainly relies on the DNA found on the inside
K surfaces of one of the gloves discovered in the bushes along Yuen Chau K
Kok Road containing a match to the defendant’s DNA and the evidence of
L L
both PC14267 (PW2) and Mr Lee Chun Pun (PW3), a taxi driver, that one
M of the four males involved in the incident was a South-Asian male to prove M
that the defendant was one of the culprits.
N N
O Prosecution case O
P P
5. The prosecution called five witnesses and produced in
Q evidence Exhibits P1 to P13. The facts admitted by both the prosecution Q
and defence mainly showed that:-
R R
S i. Ms So Tsz Ling (PW1) is the store manager of the Bar. At S
about 00:50 am on 30 March 2016, four males entered the bar and
T T
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A A
B B
smashed the properties in question before escaping and running
C towards Yuen Chau Kok Road; C
D D
ii. at about 01:05 am on the same day, PC14267 led the police
E officers to the bushes situated along Yuen Chau Kok Road near E
Kong Pui Street;
F F
iii. at about 02:05 am on the same day, DPC8278 (PW4) arrived
G G
at the scene for investigation. At 02:10 am, he took a total of 24
H photographs which captured both the scene at the Bar after the H
incident and also the positions of Yuen Chau Kok Road, where two
I I
surgical masks[P1], two pairs of gloves[P2], two hammers[P3] and
J one metal pipe[P4] were found. At 02:25 am, he seized the said J
exhibits outside Yuen Chau Kok Park, along Yuen Chau Kok Road.
K K
At 02:30 am, he drew a sketch of the location of the incident and the
L positions where the said exhibits were found; L
M M
iv. on 1 April 2016, the said exhibits, that is, P1 to 4, were
N delivered to Ms Yeung Sze Mang (PW5) at the government N
laboratory for DNA examination. Human DNA was found on one
O O
of the gloves which had originated from an unknown male source.
P The unknown male person was denoted as “Unk1”; P
Q Q
vi. at 12:44 am on 22 August 2016, the defendant was arrested
R upon a stop and search; R
S S
vii. on 25 August 2016, two buccal swab samples taken from the
T defendant, each labelled with a barcode number “AA519735”, were T
delivered to Yeung Wing Shan at the government laboratory for
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A A
B B
examination and were assigned unique references numbers
C 16DD2811 and 16DD2812. The purpose of examination was to C
establish the defendant’s buccal swab samples for comparison with
D D
DNA typing results obtained from P1, 2 and 3;
E E
viii. comparisons of the DNA typing results showed that
F F
AA519735, that is, 16DD2811-2812, could have been the unknown
G male DNA source who has been denoted as Unk 1; G
H H
ix. The incident lasted about 20 seconds and was captured by
I the CCTV footages; I
J J
x. Defendant is a Form 8 recognizance holder; and
K K
xi. the subject properties were insured and repair costs were
L L
around $20,000.
M M
Ms So Tsz Ling (PW1)
N N
O 6. At about 00:50 am on 30 March 2016, there were only a few O
customers inside the Bar. Ms So was on duty and saw a man entering the
P P
Bar, who then waved his hand behind towards the back. Following that,
Q three men wearing caps and face masks, holding hard objects like metal Q
pipe, hammers and so forth, came in. They used the hard objects to hit the
R R
glass tables and sweep the drinking glasses from the tabletops, which
S shattered into pieces and broke when they hit the ground. One of those S
four males also smashed one of the front doors as they were leaving the Bar.
T T
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A A
B B
The four males fled in the right-hand side direction towards the petrol
C station. The incident lasted about 20 seconds. C
D D
7. CCTV footages were shown to her and it was her testimony
E that the four males were wearing gloves during the incident. E
F F
PC14267 (PW2)
G G
8. About 00:55 am on the same day, he was off duty and was at
H H
the Caltex Petrol Station situated at Sha Tin Wai, filling his car with petrol.
I He then drove along Yuen Chau Kok Road in the direction of Tai Chung I
Kiu Road to go home.
J J
K 9. Upon reaching Lui Ming Choi Primary School, he saw four K
men running along Yuen Chau Kok Road towards the Caltex Petrol Station.
L L
One of them looked like a South-Asian male. Some of those males were
M holding long stick objects. And they threw the same into the bushes along M
Yuen Chau Kok Road. Two to three of them also removed their masks and
N N
threw the face masks into those bushes. All four of them eventually
O boarded a taxi and the taxi drove off in the direction of the Caltex Petrol O
Station.
P P
Q 10. PC14267 then went to have a look at the position where those Q
men threw things away. He found two face masks, a metal pipe and two
R R
pairs of gloves at the respective positions as marked by him in the sketch
S [P9]. S
T T
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A A
B B
11. Later, a police vehicle arrived at the scene. When he was
C walking over to the police vehicle, he noticed that the door of the bar was C
smashed. He told the police who attended the scene as to what he saw and
D D
also led them to the positions where the said exhibits were found.
E E
F Mr Lee Chun Pun (PW3) F
G G
12. He was at the material time the nightshift driver of a taxi with
H registration no KE5666. At about 01:00 am on 30 March 2016, he reached H
Yuen Chau Kok Road opposite Lui Ming Choi Primary School and
I I
stopped there for a Chinese man, aged about 25, who was wearing a
J short-sleeves T-shirt, long pants and holding a white mobile phone, to get J
in his taxi. P10 was the sketch marked by Mr Lee.
K K
L 13. After boarding the taxi, that Chinese male told Mr Lee to wait L
for a while for his friends and that he wanted to go to Kowloon.
M M
N N
14. After waiting for about five minutes, that Chinese male
O
alighted the taxi and four males boarded the taxi. They asked Mr Lee to O
take them to Mong Kok. One of them was a South-Asian male, while the
P P
others were Chinese. Only the front seat passenger was wearing a mask.
Q Mr Lee did not think any of them was wearing gloves and the only objects Q
he saw in their hands were at most mobile phones.
R R
S 15. During the journey, there were some conversations among the S
four males about asking for cigarettes and where in Mong Kok they were
T T
heading. The journey last about 20 to 25 minutes.
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A A
B B
DPC8278 (PW4)
C C
16. He marked the sketch P11A and B to indicate the respective
D D
locations including the position as to where the exhibits were found as
E depicted in their respective photographs. E
F F
Ms Yeung Sze Mang (PW5)
G G
17. Ms Yeung Sze Mang (PW5) is the forensic scientist of the
H H
government laboratory and her witness statements P12A to B were
I admitted under section 65B of the Criminal Procedure Ordinance, Cap I
221.
J J
K 18. Her expertise is not in dispute. She was mainly tendered for K
cross-examination by the defence.
L L
M 19. Her evidence under cross-examination showed that the reason M
as to why no DNA was found on the other glove was that there might not
N N
be enough epithelial cells deposited on the other glove or the other glove
O might not have been used. O
P P
20. Her statement in P12B, that “the DNA typing results which
Q are shown in the donor sample could have been the unknown DNA source Q
denoted Unk 1” was an operative statement and “could have” meant
R R
another person in the world could have the identical DNA profiles. She
S could not exclude the possibility that she could find another person who S
had the same DNA profiles. Such a possibility was calculated based on the
T T
population database for Pakistani population published in scientific journal
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A A
B B
and, stated in P12B, that is, the random matching possibility at 293
C quintillion to 1. C
D D
21. At the close of the prosecution case, I ruled that there was a
E case to answer in respect of the charge against the defendant. E
F F
Defence case
G G
22. The defendant, through Mr Mughal, informed the court that
H H
he understood his right and elected not to give evidence. No adverse
I inference is drawn against the defendant for his election of not giving I
evidence.
J J
K 23. The defendant called his wife, Madam Lai Wan Yin, to give K
alibi evidence on his behalf.
L L
M 24. Exhibits D1 to D4A were produced in evidence. M
N N
Madam Lai Wan Yin (DW1)
O O
25. Madam Lai, aged 40, was locally born. She met the defendant
P P
on 2 February 2012 and was aware of the defendant’s status as a Form 8
Q recognizance holder. They then started a relationship and got married on Q
18 August 2013. They have been living together at a public housing unit in
R R
Lei Muk Shue since marriage.
S S
26. Madam Lai has been running a sole proprietorship called Nail
T T
Garden, providing nail management services, both pedicure and manicure,
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A A
B B
since 2008. Her nail salon is situated at Room 504, Luk Yu Building,
C Stanley Street, Central. Her normal working hours are from 11 am to 8 pm. C
She hires a staff member to help her at the nail salon.
D D
E 27. There would, however, be occasions for her to work late as E
her nail salon basically operates 24 hours a day. If she has to work late, say,
F F
till 2 to 3 am and start early on the following day for an early appointment,
G she would sleep in the nail salon and the defendant would also stay and G
sleep with her in the nail salon. She records the approximate time of
H H
bookings in the diary of her mobile phone.
I I
28. In December 2015, the defendant would come to see her at the
J J
nail salon in the afternoon and wait for her to finish work and go home
K together. K
L L
29. In January 2016, her staff member resigned and left the nail
M salon. She was subsequently able to hire another staff member to assist her M
in April 2016. She was, therefore, working on her own in February and
N N
March 2016. For the two months, she was very busy in terms of nail
O services and very often had bookings till late in the night and followed by O
bookings early in the next morning. She was feeling exhausted and did not
P P
want to take the journey home. So she slept mostly in the nail salon with
Q the defendant. Q
R R
30. She looked at her bookings and remembered that, at the
S material time, the defendant was with her at the nail salon. On 29 March S
2016, the last appointment started at 7.30 pm and finished at almost 11 pm.
T T
After that, she had to clean the shop and make accounting entries, which
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A A
B B
took about one hour. She also had an appointment at 10 am on 30 March
C 2016. C
D D
31. She was asked to recall this in August 2016, as the defendant
E was arrested for the present case in that month and she also attended the E
police station for the defendant’s bail.
F F
G G
Analysis of evidence
H H
32. I remind myself that the prosecution has the burden of proof
I I
to prove all the elements of the offence beyond reasonable doubt
J throughout. J
K K
33. I have carefully considered all the evidence and submissions.
L I find all five prosecution witnesses credible and reliable witnesses. L
M M
34. I find what took place during the incident as captured by
N
CCTV is overall consistent with Ms So’s description of the incident. N
O O
35. As to DPC8278 and Ms Yeung, I note that they have no direct
P P
knowledge of the incident and DPC8272 was not cross-examined by the
Q defence. Q
R R
36. I note that one of the focuses of the final submissions made by
S the defence is centred around the quality of PC14267’s evidence. I have S
carefully considered those submissions and do not find any of them to cast
T T
doubt on his evidence. By way of examples:
U U
V V
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A A
B B
(i) - the defence pointed out a number of differences between
C C
his testimony in court and the records made in his witness
D statement dated 30 March 2016 regarding the number of D
males holding a long stick and removing face masks, the
E E
number of gloves discovered by him and his making no
F mention of finding a long stick object in the witness F
statement;
G G
H - PC14267 agreed that he had made mistakes in his witness H
statements, which led to those differences. He said that, upon
I I
receipt of the notice to give evidence in March 2016, he tried
J his best to remember the incident and the images concerned J
kept recurring and it was then he first realized that he had
K K
recorded one of the males holding a long stick in his witness
L statement and made an omission in this regard; L
M M
- although he had heard about the term of supplementary
N N
witness statement, he did not make one and admitted that it
O
was his mistake for not informing the OC Case of the O
discrepancy;
P P
- as to the difference concerning the record of the four men
Q Q
throwing face mask to the turf in his witness statement, he
R admitted to making a mistake in not giving a proper and R
detailed enough description to reflect the fact that two to three
S S
males removed their masks and threw them into the bushes;
T T
U U
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A A
B B
- for the other two differences, namely, one pair of gloves
C were found and no mention of finding a long stick object in C
his witness statement, he omitted them due to his being in a
D D
bit of a rush, as well as his careless or negligence at the time
E of writing the witness statement; E
F - further cross-examination revealed that, as he thought that F
he could rectify the said differences in court, he had not at the
G G
time thought of reporting them to the OC Case;
H H
- I find PC14267 has been candid when questioned about the
I I
said differences. I accept his explanations and consider the
J nature of the said differences to be minor and immaterial. I do J
not consider his thought of rectifying the said differences in
K K
court to be unreasonable;
L L
(ii) - as to the defence criticism on his remarkable feat of
M M
memory to recall events in meticulous detail without any note
N to assist him after such a long period of time, I note that, in N
reply to the cross-examination as to how he was able to
O O
remember 16 months after the incident that he found two pairs
P of gloves, he said he had all along been thinking about the P
present case ever since he received the notice to give
Q Q
evidence;
R R
- also, one’s ability to remember is, in my view, affected by
S S
a lot of subjective factors, qualities. As he received the said
T notice in March 2017 and had ever since been trying his best T
to remember the incident and the images concerned kept
U U
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A A
B B
recurring, he therefore had about three months in between to
C remember the events before testifying in court. I do not find it C
surprising for him to be able to remember the details of the
D D
incident without aid of any notes;
E E
(iii) - the defence questioned if he could have seen things
F F
clearly from a distance of 80 to 90 metres in the dark.
G Although he agreed with the defence suggestion that the said G
distance was very long and it was dark at night, he disagreed
H H
that he could not have had a clear view of the four males
I running down the road and their discarding objects into the I
bushes;
J J
K - since the four males were running towards the direction of K
Caltex Petrol Station and boarded a taxi which was about 50
L L
metres away from PC14267, the said evidence, in my view,
M clearly showed that the distance between the four males and M
PC14267 was becoming shorter as they were running along
N N
Yuen Chau Kok Road before boarding the taxi;
O O
- there were street lights along the whole of Yuen Chau
P P
Kok Road. He not only saw their gestures of throwing things
Q into the bushes but also the gestures of one or two males Q
putting one hand over the other. Further, the gestures of their
R R
throwing or discarding things into the bushes and behind the
S wire meshes were, in my view, undoubtedly clear and visible S
bodily actions with force;
T T
U U
V V
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A A
B B
- although he did say in reply that it was relatively dim
C when the defence suggest to him that the street was still quite C
dark even with street lights, I am sure that he did have a clear
D D
view of the four males as they were running along Yuen Chau
E Kok Road, including their gestures, as testified by him, and E
the observations made by him are correct;
F F
- I am of the view that the relative darkness or dimness
G G
would have at most affected his observation as to the colours
H of their clothing, as revealed in his evidence that he could not H
be sure as to the colours of their clothing apart from the light
I I
colours;
J J
(iv) - the defence also queried as to why there was a discrepancy
K K
between PC14267’s evidence and that of Mr Lee regarding
L the position of the South-Asian male on board of the taxi if L
PC14267 did see the four males clearly;
M M
N N
- according to PC14267, the South-Asian male sat in the
O
front of the taxi. However, Mr Lee’s evidence was that the O
South-Asian male sat in the middle of the rear passenger seats.
P P
Since Mr Lee drove them to Mong Kok and the whole journey
Q last about 20 to 25 minutes, he clearly was in a better position Q
to tell the court as to the seating arrangements of those four
R R
males. I see no reason to doubt his testimony in this regard;
S S
- however, it can be seen from the CCTV channel 3 footage
T T
that the colours of the clothing of the first and third male, that
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A A
B B
is, 00:53:37 and 00:53:41, appeared to be of a similar and
C fairly light colour tone, whereas the colours of the clothing of C
the other two males also appeared to be a similar colour tone
D D
but not as light as that of the first and third male. As such, the
E colour of the clothing of the South-Asian male in question E
must have been closely similar to one of the other three males;
F F
- given the said colour similarities in the clothing and the
G G
fact that they must have boarded the taxi in a hurry as they
H were running beforehand, I am of the view that the H
observation made by PC14267 in this regard would have
I I
thereby been affected and inaccurate. However, I consider
J this inaccuracy and discrepancy to be minor and immaterial. J
K K
37. As to Madam Lai’s evidence, I do not find her evidence
L credible and/or reliable. By way of examples: L
M M
(i) in cross-examination, she said the defendant accompany her
N N
to work every day. This is clearly inconsistent with her
O
evidence-in-chief that the pattern in December 2015 was that O
the defendant would go to see her at the nail salon in the
P P
afternoon. Also, if, as alleged, the defendant did accompany
Q her to work every day and stay at her shop waiting for her to Q
finish work and go home together, I find it incredible that she
R R
had not mentioned this regular pattern of their daily life in her
S evidence-in-chief; S
T T
U U
V V
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A A
B B
(ii) she was cross-examined if she had thought of buying a
C foldable bed or futon for sleeping over in the nail salon since C
she slept there regularly. She explained in reply that, as she
D D
would very often work until late and get up early in the
E morning, she did not actually sleep for many hours. E
Following up on that answer, the prosecution pointed out to
F F
her that the said issue concerned not only her but also the
G defendant. And she said in reply that the floor was not hard as G
there was carpet on the floor. As this question was clearly
H H
directed at her concerns about the defendant’s view or
I feelings about sleeping on the floor, her answer, in my view, I
was evasive;
J J
(iii) she agreed that she slept and fell asleep at 12:00 am on 30
K K
March 2016. As such, I find it unreasonable for her to
L disagree to the suggestion made by the prosecution that she L
could not be certain that the defendant did not leave once she
M M
fell asleep. Her explanations that the defendant had his arms
N N
around her and she being a light sleeper would know if
O
defendant moved were, in my view, excuses made up by her O
to justify her position in order to protect her husband.
P P
Q 38. I disbelieve her evidence. I do not believe that the defendant Q
was with her at the time of the offence. My rejection of her evidence is not
R R
determinative of the issues and no adverse inference can be drawn against
S the defendant. S
T T
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A A
B B
39. In light of my above analysis, I see no reason to doubt the
C evidence of the prosecution witnesses and believe their evidence. C
D 40. I find that the incident clearly occurred at the bar in the D
manner and circumstances as described by Ms So. I note that there is no
E E
evidence from Ms So as to the nationality and/or race of the culprits.
F F
41. Given the close proximities in terms of time and place
G G
between the happening of the incident at the Bar and the observations
H
made by PC14267, including his descriptions of the four males, I am sure H
that the four males seen by PC14267 were those whom Ms So saw
I I
smashing the subject properties during the incident.
J J
42. Further, having regard to Mr Lee’s description of the front
K seat passenger, that is, a fat guy wearing a mask and blue clothing, which K
tallies with the general appearance of the four males shown in the CCTV
L L
footages, and his evidence that one of the four males was a South-Asian
M male, I am sure that the four males who boarded his taxi were the four M
males seen by PC14267, that is, the four males involved in the incident. I
N N
am sure that one of the culprits was a South-Asian male.
O O
43. It is submitted that the DNA finding is not conclusive
P P
evidence against the defendant. Ms So’s evidence and the CCTV footages
Q showed that the four males were all wearing face mask and gloves and Q
using long stick-like hard objects, such as metal bars and hammers, to hit
R R
the subject properties at the Bar. According to PC14267, the four males
S threw the face masks and the long stick objects into the bushes as they were S
running along the road and he later found two face masks, two pairs of
T T
gloves and a metal bar in the ditch and the bushes. DPC8278 later seized
U U
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A A
B B
them and two more hammers in the vicinity. The appearances of the said
C exhibits are consistent with Ms So descriptions of the face masks, gloves C
and hard objects used by the four males, as well as the incident captured by
D D
the CCTV footages.
E E
44. I find the only reasonable and irresistible inference is that P1
F to P4 were the face masks, gloves and the long stick-like objects used by F
the four males at the time of the incident.
G G
H
45. I also note that the two pairs of gloves appeared to be very H
similar in terms of style, design and colour combinations, blue and black.
I I
In my view, the similarities show a connection between them and are
J evidence consistent with my finding that they were the gloves worn by the J
males involved in the incident.
K K
46. Based on my above analysis, the random match possibility at
L L
293 quintillion to 1 and in the absence of any reasonable explanation for
M the presence of the human DNA on the inside surfaces of glove B M
containing a match to the defendant’s DNA, I find the only reasonable and
N N
irresistible inference is that it was the defendant who left the DNA on the
O inside surfaces of the glove at the time of the incident as he was one of the O
four males wearing gloves involved in the incident and discarded the glove
P P
which contained his DNA and he was the South-Asian male that both
Q PC14267 and Mr Lee referred to in their respective testimonies. Q
R R
Conclusion
S S
47. There are no material discrepancies, omissions and/or
T improbabilities in the overall prosecution case. I am satisfied that the T
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A A
B B
prosecution has proved beyond reasonable doubt all the elements of the
C offence and convict the defendant of the charge. C
D D
E E
F F
( Winnie Lau )
Deputy District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
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S S
T T
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A A
B B
DCCC 81/2017
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 81 OF 2017 E
F ------------------------- F
HKSAR
G G
v
H QAISER MUHAMMAD H
--------------------------
I I
J Before: Deputy District Judge Winnie Lau in Court J
Date: 8 August 2017 at 2.44 pm at Sha Tin Magistracies
K K
Present: Mr Sajan G Sujanani, Counsel on Fiat, for HKSAR
L Mr Mughal H Mohamed, instructed by Fu & Cheng, for the L
defendant
M M
Offence: Criminal damage (刑事損壞)
N N
O ----------------------------------------- O
REASONS FOR VERDICT
P P
-----------------------------------------
Q Q
1. The defendant pleaded not guilty to one offence of criminal
R R
damage, contrary to section 60(1) of the Crimes Ordinance.
S S
2. It is the prosecution’s allegation that, at about 00:50 am on 30
T T
March 2016, the defendant, together with other unknown males, without
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A A
B B
lawful excuse, damaged five tables, 20 glasses and one door being property
C belonging to another, intending to damage such property, at Bar Pacific, C
Ground Floor, Regal Riverside Hotel, No 34-36 Tai Chung Kiu Road, Sha
D D
Tin (“the Bar”). At the time of the offence, they were wearing gloves and
E used metal bar and hammers to smash the subject properties. E
F F
3. As revealed in the way in which the prosecution witnesses
G were cross-examined and the defence case, I note that the main issue in this G
case is whether the defendant was one of the culprits. The defence also
H H
adduced alibi evidence to show that the defendant was with his wife at the
I time of the offence. I
J J
4. The prosecution mainly relies on the DNA found on the inside
K surfaces of one of the gloves discovered in the bushes along Yuen Chau K
Kok Road containing a match to the defendant’s DNA and the evidence of
L L
both PC14267 (PW2) and Mr Lee Chun Pun (PW3), a taxi driver, that one
M of the four males involved in the incident was a South-Asian male to prove M
that the defendant was one of the culprits.
N N
O Prosecution case O
P P
5. The prosecution called five witnesses and produced in
Q evidence Exhibits P1 to P13. The facts admitted by both the prosecution Q
and defence mainly showed that:-
R R
S i. Ms So Tsz Ling (PW1) is the store manager of the Bar. At S
about 00:50 am on 30 March 2016, four males entered the bar and
T T
U U
V V
-3-
A A
B B
smashed the properties in question before escaping and running
C towards Yuen Chau Kok Road; C
D D
ii. at about 01:05 am on the same day, PC14267 led the police
E officers to the bushes situated along Yuen Chau Kok Road near E
Kong Pui Street;
F F
iii. at about 02:05 am on the same day, DPC8278 (PW4) arrived
G G
at the scene for investigation. At 02:10 am, he took a total of 24
H photographs which captured both the scene at the Bar after the H
incident and also the positions of Yuen Chau Kok Road, where two
I I
surgical masks[P1], two pairs of gloves[P2], two hammers[P3] and
J one metal pipe[P4] were found. At 02:25 am, he seized the said J
exhibits outside Yuen Chau Kok Park, along Yuen Chau Kok Road.
K K
At 02:30 am, he drew a sketch of the location of the incident and the
L positions where the said exhibits were found; L
M M
iv. on 1 April 2016, the said exhibits, that is, P1 to 4, were
N delivered to Ms Yeung Sze Mang (PW5) at the government N
laboratory for DNA examination. Human DNA was found on one
O O
of the gloves which had originated from an unknown male source.
P The unknown male person was denoted as “Unk1”; P
Q Q
vi. at 12:44 am on 22 August 2016, the defendant was arrested
R upon a stop and search; R
S S
vii. on 25 August 2016, two buccal swab samples taken from the
T defendant, each labelled with a barcode number “AA519735”, were T
delivered to Yeung Wing Shan at the government laboratory for
U U
V V
-4-
A A
B B
examination and were assigned unique references numbers
C 16DD2811 and 16DD2812. The purpose of examination was to C
establish the defendant’s buccal swab samples for comparison with
D D
DNA typing results obtained from P1, 2 and 3;
E E
viii. comparisons of the DNA typing results showed that
F F
AA519735, that is, 16DD2811-2812, could have been the unknown
G male DNA source who has been denoted as Unk 1; G
H H
ix. The incident lasted about 20 seconds and was captured by
I the CCTV footages; I
J J
x. Defendant is a Form 8 recognizance holder; and
K K
xi. the subject properties were insured and repair costs were
L L
around $20,000.
M M
Ms So Tsz Ling (PW1)
N N
O 6. At about 00:50 am on 30 March 2016, there were only a few O
customers inside the Bar. Ms So was on duty and saw a man entering the
P P
Bar, who then waved his hand behind towards the back. Following that,
Q three men wearing caps and face masks, holding hard objects like metal Q
pipe, hammers and so forth, came in. They used the hard objects to hit the
R R
glass tables and sweep the drinking glasses from the tabletops, which
S shattered into pieces and broke when they hit the ground. One of those S
four males also smashed one of the front doors as they were leaving the Bar.
T T
U U
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A A
B B
The four males fled in the right-hand side direction towards the petrol
C station. The incident lasted about 20 seconds. C
D D
7. CCTV footages were shown to her and it was her testimony
E that the four males were wearing gloves during the incident. E
F F
PC14267 (PW2)
G G
8. About 00:55 am on the same day, he was off duty and was at
H H
the Caltex Petrol Station situated at Sha Tin Wai, filling his car with petrol.
I He then drove along Yuen Chau Kok Road in the direction of Tai Chung I
Kiu Road to go home.
J J
K 9. Upon reaching Lui Ming Choi Primary School, he saw four K
men running along Yuen Chau Kok Road towards the Caltex Petrol Station.
L L
One of them looked like a South-Asian male. Some of those males were
M holding long stick objects. And they threw the same into the bushes along M
Yuen Chau Kok Road. Two to three of them also removed their masks and
N N
threw the face masks into those bushes. All four of them eventually
O boarded a taxi and the taxi drove off in the direction of the Caltex Petrol O
Station.
P P
Q 10. PC14267 then went to have a look at the position where those Q
men threw things away. He found two face masks, a metal pipe and two
R R
pairs of gloves at the respective positions as marked by him in the sketch
S [P9]. S
T T
U U
V V
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A A
B B
11. Later, a police vehicle arrived at the scene. When he was
C walking over to the police vehicle, he noticed that the door of the bar was C
smashed. He told the police who attended the scene as to what he saw and
D D
also led them to the positions where the said exhibits were found.
E E
F Mr Lee Chun Pun (PW3) F
G G
12. He was at the material time the nightshift driver of a taxi with
H registration no KE5666. At about 01:00 am on 30 March 2016, he reached H
Yuen Chau Kok Road opposite Lui Ming Choi Primary School and
I I
stopped there for a Chinese man, aged about 25, who was wearing a
J short-sleeves T-shirt, long pants and holding a white mobile phone, to get J
in his taxi. P10 was the sketch marked by Mr Lee.
K K
L 13. After boarding the taxi, that Chinese male told Mr Lee to wait L
for a while for his friends and that he wanted to go to Kowloon.
M M
N N
14. After waiting for about five minutes, that Chinese male
O
alighted the taxi and four males boarded the taxi. They asked Mr Lee to O
take them to Mong Kok. One of them was a South-Asian male, while the
P P
others were Chinese. Only the front seat passenger was wearing a mask.
Q Mr Lee did not think any of them was wearing gloves and the only objects Q
he saw in their hands were at most mobile phones.
R R
S 15. During the journey, there were some conversations among the S
four males about asking for cigarettes and where in Mong Kok they were
T T
heading. The journey last about 20 to 25 minutes.
U U
V V
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A A
B B
DPC8278 (PW4)
C C
16. He marked the sketch P11A and B to indicate the respective
D D
locations including the position as to where the exhibits were found as
E depicted in their respective photographs. E
F F
Ms Yeung Sze Mang (PW5)
G G
17. Ms Yeung Sze Mang (PW5) is the forensic scientist of the
H H
government laboratory and her witness statements P12A to B were
I admitted under section 65B of the Criminal Procedure Ordinance, Cap I
221.
J J
K 18. Her expertise is not in dispute. She was mainly tendered for K
cross-examination by the defence.
L L
M 19. Her evidence under cross-examination showed that the reason M
as to why no DNA was found on the other glove was that there might not
N N
be enough epithelial cells deposited on the other glove or the other glove
O might not have been used. O
P P
20. Her statement in P12B, that “the DNA typing results which
Q are shown in the donor sample could have been the unknown DNA source Q
denoted Unk 1” was an operative statement and “could have” meant
R R
another person in the world could have the identical DNA profiles. She
S could not exclude the possibility that she could find another person who S
had the same DNA profiles. Such a possibility was calculated based on the
T T
population database for Pakistani population published in scientific journal
U U
V V
-8-
A A
B B
and, stated in P12B, that is, the random matching possibility at 293
C quintillion to 1. C
D D
21. At the close of the prosecution case, I ruled that there was a
E case to answer in respect of the charge against the defendant. E
F F
Defence case
G G
22. The defendant, through Mr Mughal, informed the court that
H H
he understood his right and elected not to give evidence. No adverse
I inference is drawn against the defendant for his election of not giving I
evidence.
J J
K 23. The defendant called his wife, Madam Lai Wan Yin, to give K
alibi evidence on his behalf.
L L
M 24. Exhibits D1 to D4A were produced in evidence. M
N N
Madam Lai Wan Yin (DW1)
O O
25. Madam Lai, aged 40, was locally born. She met the defendant
P P
on 2 February 2012 and was aware of the defendant’s status as a Form 8
Q recognizance holder. They then started a relationship and got married on Q
18 August 2013. They have been living together at a public housing unit in
R R
Lei Muk Shue since marriage.
S S
26. Madam Lai has been running a sole proprietorship called Nail
T T
Garden, providing nail management services, both pedicure and manicure,
U U
V V
-9-
A A
B B
since 2008. Her nail salon is situated at Room 504, Luk Yu Building,
C Stanley Street, Central. Her normal working hours are from 11 am to 8 pm. C
She hires a staff member to help her at the nail salon.
D D
E 27. There would, however, be occasions for her to work late as E
her nail salon basically operates 24 hours a day. If she has to work late, say,
F F
till 2 to 3 am and start early on the following day for an early appointment,
G she would sleep in the nail salon and the defendant would also stay and G
sleep with her in the nail salon. She records the approximate time of
H H
bookings in the diary of her mobile phone.
I I
28. In December 2015, the defendant would come to see her at the
J J
nail salon in the afternoon and wait for her to finish work and go home
K together. K
L L
29. In January 2016, her staff member resigned and left the nail
M salon. She was subsequently able to hire another staff member to assist her M
in April 2016. She was, therefore, working on her own in February and
N N
March 2016. For the two months, she was very busy in terms of nail
O services and very often had bookings till late in the night and followed by O
bookings early in the next morning. She was feeling exhausted and did not
P P
want to take the journey home. So she slept mostly in the nail salon with
Q the defendant. Q
R R
30. She looked at her bookings and remembered that, at the
S material time, the defendant was with her at the nail salon. On 29 March S
2016, the last appointment started at 7.30 pm and finished at almost 11 pm.
T T
After that, she had to clean the shop and make accounting entries, which
U U
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A A
B B
took about one hour. She also had an appointment at 10 am on 30 March
C 2016. C
D D
31. She was asked to recall this in August 2016, as the defendant
E was arrested for the present case in that month and she also attended the E
police station for the defendant’s bail.
F F
G G
Analysis of evidence
H H
32. I remind myself that the prosecution has the burden of proof
I I
to prove all the elements of the offence beyond reasonable doubt
J throughout. J
K K
33. I have carefully considered all the evidence and submissions.
L I find all five prosecution witnesses credible and reliable witnesses. L
M M
34. I find what took place during the incident as captured by
N
CCTV is overall consistent with Ms So’s description of the incident. N
O O
35. As to DPC8278 and Ms Yeung, I note that they have no direct
P P
knowledge of the incident and DPC8272 was not cross-examined by the
Q defence. Q
R R
36. I note that one of the focuses of the final submissions made by
S the defence is centred around the quality of PC14267’s evidence. I have S
carefully considered those submissions and do not find any of them to cast
T T
doubt on his evidence. By way of examples:
U U
V V
- 11 -
A A
B B
(i) - the defence pointed out a number of differences between
C C
his testimony in court and the records made in his witness
D statement dated 30 March 2016 regarding the number of D
males holding a long stick and removing face masks, the
E E
number of gloves discovered by him and his making no
F mention of finding a long stick object in the witness F
statement;
G G
H - PC14267 agreed that he had made mistakes in his witness H
statements, which led to those differences. He said that, upon
I I
receipt of the notice to give evidence in March 2016, he tried
J his best to remember the incident and the images concerned J
kept recurring and it was then he first realized that he had
K K
recorded one of the males holding a long stick in his witness
L statement and made an omission in this regard; L
M M
- although he had heard about the term of supplementary
N N
witness statement, he did not make one and admitted that it
O
was his mistake for not informing the OC Case of the O
discrepancy;
P P
- as to the difference concerning the record of the four men
Q Q
throwing face mask to the turf in his witness statement, he
R admitted to making a mistake in not giving a proper and R
detailed enough description to reflect the fact that two to three
S S
males removed their masks and threw them into the bushes;
T T
U U
V V
- 12 -
A A
B B
- for the other two differences, namely, one pair of gloves
C were found and no mention of finding a long stick object in C
his witness statement, he omitted them due to his being in a
D D
bit of a rush, as well as his careless or negligence at the time
E of writing the witness statement; E
F - further cross-examination revealed that, as he thought that F
he could rectify the said differences in court, he had not at the
G G
time thought of reporting them to the OC Case;
H H
- I find PC14267 has been candid when questioned about the
I I
said differences. I accept his explanations and consider the
J nature of the said differences to be minor and immaterial. I do J
not consider his thought of rectifying the said differences in
K K
court to be unreasonable;
L L
(ii) - as to the defence criticism on his remarkable feat of
M M
memory to recall events in meticulous detail without any note
N to assist him after such a long period of time, I note that, in N
reply to the cross-examination as to how he was able to
O O
remember 16 months after the incident that he found two pairs
P of gloves, he said he had all along been thinking about the P
present case ever since he received the notice to give
Q Q
evidence;
R R
- also, one’s ability to remember is, in my view, affected by
S S
a lot of subjective factors, qualities. As he received the said
T notice in March 2017 and had ever since been trying his best T
to remember the incident and the images concerned kept
U U
V V
- 13 -
A A
B B
recurring, he therefore had about three months in between to
C remember the events before testifying in court. I do not find it C
surprising for him to be able to remember the details of the
D D
incident without aid of any notes;
E E
(iii) - the defence questioned if he could have seen things
F F
clearly from a distance of 80 to 90 metres in the dark.
G Although he agreed with the defence suggestion that the said G
distance was very long and it was dark at night, he disagreed
H H
that he could not have had a clear view of the four males
I running down the road and their discarding objects into the I
bushes;
J J
K - since the four males were running towards the direction of K
Caltex Petrol Station and boarded a taxi which was about 50
L L
metres away from PC14267, the said evidence, in my view,
M clearly showed that the distance between the four males and M
PC14267 was becoming shorter as they were running along
N N
Yuen Chau Kok Road before boarding the taxi;
O O
- there were street lights along the whole of Yuen Chau
P P
Kok Road. He not only saw their gestures of throwing things
Q into the bushes but also the gestures of one or two males Q
putting one hand over the other. Further, the gestures of their
R R
throwing or discarding things into the bushes and behind the
S wire meshes were, in my view, undoubtedly clear and visible S
bodily actions with force;
T T
U U
V V
- 14 -
A A
B B
- although he did say in reply that it was relatively dim
C when the defence suggest to him that the street was still quite C
dark even with street lights, I am sure that he did have a clear
D D
view of the four males as they were running along Yuen Chau
E Kok Road, including their gestures, as testified by him, and E
the observations made by him are correct;
F F
- I am of the view that the relative darkness or dimness
G G
would have at most affected his observation as to the colours
H of their clothing, as revealed in his evidence that he could not H
be sure as to the colours of their clothing apart from the light
I I
colours;
J J
(iv) - the defence also queried as to why there was a discrepancy
K K
between PC14267’s evidence and that of Mr Lee regarding
L the position of the South-Asian male on board of the taxi if L
PC14267 did see the four males clearly;
M M
N N
- according to PC14267, the South-Asian male sat in the
O
front of the taxi. However, Mr Lee’s evidence was that the O
South-Asian male sat in the middle of the rear passenger seats.
P P
Since Mr Lee drove them to Mong Kok and the whole journey
Q last about 20 to 25 minutes, he clearly was in a better position Q
to tell the court as to the seating arrangements of those four
R R
males. I see no reason to doubt his testimony in this regard;
S S
- however, it can be seen from the CCTV channel 3 footage
T T
that the colours of the clothing of the first and third male, that
U U
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- 15 -
A A
B B
is, 00:53:37 and 00:53:41, appeared to be of a similar and
C fairly light colour tone, whereas the colours of the clothing of C
the other two males also appeared to be a similar colour tone
D D
but not as light as that of the first and third male. As such, the
E colour of the clothing of the South-Asian male in question E
must have been closely similar to one of the other three males;
F F
- given the said colour similarities in the clothing and the
G G
fact that they must have boarded the taxi in a hurry as they
H were running beforehand, I am of the view that the H
observation made by PC14267 in this regard would have
I I
thereby been affected and inaccurate. However, I consider
J this inaccuracy and discrepancy to be minor and immaterial. J
K K
37. As to Madam Lai’s evidence, I do not find her evidence
L credible and/or reliable. By way of examples: L
M M
(i) in cross-examination, she said the defendant accompany her
N N
to work every day. This is clearly inconsistent with her
O
evidence-in-chief that the pattern in December 2015 was that O
the defendant would go to see her at the nail salon in the
P P
afternoon. Also, if, as alleged, the defendant did accompany
Q her to work every day and stay at her shop waiting for her to Q
finish work and go home together, I find it incredible that she
R R
had not mentioned this regular pattern of their daily life in her
S evidence-in-chief; S
T T
U U
V V
- 16 -
A A
B B
(ii) she was cross-examined if she had thought of buying a
C foldable bed or futon for sleeping over in the nail salon since C
she slept there regularly. She explained in reply that, as she
D D
would very often work until late and get up early in the
E morning, she did not actually sleep for many hours. E
Following up on that answer, the prosecution pointed out to
F F
her that the said issue concerned not only her but also the
G defendant. And she said in reply that the floor was not hard as G
there was carpet on the floor. As this question was clearly
H H
directed at her concerns about the defendant’s view or
I feelings about sleeping on the floor, her answer, in my view, I
was evasive;
J J
(iii) she agreed that she slept and fell asleep at 12:00 am on 30
K K
March 2016. As such, I find it unreasonable for her to
L disagree to the suggestion made by the prosecution that she L
could not be certain that the defendant did not leave once she
M M
fell asleep. Her explanations that the defendant had his arms
N N
around her and she being a light sleeper would know if
O
defendant moved were, in my view, excuses made up by her O
to justify her position in order to protect her husband.
P P
Q 38. I disbelieve her evidence. I do not believe that the defendant Q
was with her at the time of the offence. My rejection of her evidence is not
R R
determinative of the issues and no adverse inference can be drawn against
S the defendant. S
T T
U U
V V
- 17 -
A A
B B
39. In light of my above analysis, I see no reason to doubt the
C evidence of the prosecution witnesses and believe their evidence. C
D 40. I find that the incident clearly occurred at the bar in the D
manner and circumstances as described by Ms So. I note that there is no
E E
evidence from Ms So as to the nationality and/or race of the culprits.
F F
41. Given the close proximities in terms of time and place
G G
between the happening of the incident at the Bar and the observations
H
made by PC14267, including his descriptions of the four males, I am sure H
that the four males seen by PC14267 were those whom Ms So saw
I I
smashing the subject properties during the incident.
J J
42. Further, having regard to Mr Lee’s description of the front
K seat passenger, that is, a fat guy wearing a mask and blue clothing, which K
tallies with the general appearance of the four males shown in the CCTV
L L
footages, and his evidence that one of the four males was a South-Asian
M male, I am sure that the four males who boarded his taxi were the four M
males seen by PC14267, that is, the four males involved in the incident. I
N N
am sure that one of the culprits was a South-Asian male.
O O
43. It is submitted that the DNA finding is not conclusive
P P
evidence against the defendant. Ms So’s evidence and the CCTV footages
Q showed that the four males were all wearing face mask and gloves and Q
using long stick-like hard objects, such as metal bars and hammers, to hit
R R
the subject properties at the Bar. According to PC14267, the four males
S threw the face masks and the long stick objects into the bushes as they were S
running along the road and he later found two face masks, two pairs of
T T
gloves and a metal bar in the ditch and the bushes. DPC8278 later seized
U U
V V
- 18 -
A A
B B
them and two more hammers in the vicinity. The appearances of the said
C exhibits are consistent with Ms So descriptions of the face masks, gloves C
and hard objects used by the four males, as well as the incident captured by
D D
the CCTV footages.
E E
44. I find the only reasonable and irresistible inference is that P1
F to P4 were the face masks, gloves and the long stick-like objects used by F
the four males at the time of the incident.
G G
H
45. I also note that the two pairs of gloves appeared to be very H
similar in terms of style, design and colour combinations, blue and black.
I I
In my view, the similarities show a connection between them and are
J evidence consistent with my finding that they were the gloves worn by the J
males involved in the incident.
K K
46. Based on my above analysis, the random match possibility at
L L
293 quintillion to 1 and in the absence of any reasonable explanation for
M the presence of the human DNA on the inside surfaces of glove B M
containing a match to the defendant’s DNA, I find the only reasonable and
N N
irresistible inference is that it was the defendant who left the DNA on the
O inside surfaces of the glove at the time of the incident as he was one of the O
four males wearing gloves involved in the incident and discarded the glove
P P
which contained his DNA and he was the South-Asian male that both
Q PC14267 and Mr Lee referred to in their respective testimonies. Q
R R
Conclusion
S S
47. There are no material discrepancies, omissions and/or
T improbabilities in the overall prosecution case. I am satisfied that the T
U U
V V
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A A
B B
prosecution has proved beyond reasonable doubt all the elements of the
C offence and convict the defendant of the charge. C
D D
E E
F F
( Winnie Lau )
Deputy District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V