The case of the fingerprint in the switch room
Judges convict man of theft on one piece of evidence, but does this point to less patience for exactitude in criminal law?
Copper lightning rods were stolen from the switch rooms of a Kowloon housing estate on a day in December 2010. The burglar appeared to have had a key because there was no damage to the doors, which locked automatically. No one saw the burglary, so there was no visual identification evidence. The only evidence against the defendant, Mr Chiu, was that his fingerprint was found on the inside of the wooden door of one of the switch rooms. The expert witness could not tell how long the fingerprint had been there.
If you were the judge, would you convict Mr Chiu of burglary? Perhaps before you decide, you need to know more about the switch rooms, because it matters a great deal whether the fingerprint was found, say, on the door of a public washroom or on the door of one's bedroom.
There were 13 switch rooms, all of which could be opened by a single key. Two keys were kept at the ground floor counter. Other keys were kept at a nearby control room. The keys could be signed out by workers - which happened "very often" - and when signed out a record was made in a register book. No one had signed out a key "from the counter" on the day in question.
However the register book was never produced in evidence, leaving it unknown if the defendant's name ever appeared in the book.
One might wonder next what the defendant had to say about his fingerprint. Mr Chiu chose to remain silent, as was his constitutional right, thereby putting the onus on the prosecution to prove his guilt.
In these cases, the judge will normally ask if the defendant's guilt is the only reasonable inference to be drawn from the evidence.
If another reasonable inference consistent with innocence is possible, this means there is reasonable doubt and the defendant must be acquitted.
The District Court judge found no other reasonable inference, a decision upheld by two judges (Mr Justice Michael Lunn and Mr Justice Andrew Macrae) in the Court of Appeal. The dissenting judge (vice-president Justice Frank Stock) found it could not be the case that there was no other reasonable inference when the evidence could not prove the defendant entered the switch room without authorisation on the day of the burglary. In refusing leave to appeal, three judges of the Court of Final Appeal (Mr Justice Patrick Chan Siu-oi, Mr Justice Robert Tang Ching and Mr Justice Michael Hartmann) found that there "was simply no other basis for drawing a different inference" other than guilt.
The judges disagreed not on the law, but on how strongly the bedrock principle of the presumption of innocence rests in this case. The majority thought it was enough to displace the presumption by finding the fingerprint in a place where entry was restricted.
The dissenting judge said more was needed and remarked if it was a murder case the others would surely agree with him.
Is the case a sign of standards in the criminal justice system sliding, a growing tolerance for rough justice, or maybe less patience for exactitude in criminal law? Or maybe the majority simply lost sight of the constant risks of wrongful convictions, which should demand more rather than less from the prosecution?
If it is of any consolation for the defendant and the future of the system, our evidence law students, when asked to decide this case in their midterm test this year, overwhelmingly advised acquittal.
