HKSAR v. Chan Ka Chun

Press Summary (English)

Press Summary (Chinese)

FACC No. 1 of 2018

[2018] HKCFA 31

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2018 (CRIMINAL)

(ON APPEAL FROM CACC NO. 226 OF 2013)

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REASONS FOR JUDGMENT

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Chief Justice Ma:

1.I agree with the Reasons for Judgment of Mr Justice Fok PJ.

Mr Justice Ribeiro PJ:

2.I agree with the Reasons for Judgment of Mr Justice Fok PJ.

Mr Justice Tang PJ:

3.I agree with the Reasons for Judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

4.This appeal, for which leave to appeal was granted on the substantial and grave injustice ground, concerns the fairness of the appellant’s trial in the particular circumstances of this case.  However, the appeal involves important norms concerning the need for the trial judge’s summing-up to the jury to be fair and for the judge’s comments in that summing-up to truly and accurately reflect the evidence.  This is all the more important in a jurisdiction where evidence from one language is often translated into another language in which the trial is conducted.

5.At the conclusion of the appeal, the Court allowed the appeal, quashed the appellant’s conviction and ordered a re-trial, remanding the appellant in custody pending such re-trial.  The Court indicated that it would provide its reasons for doing so in due course.  These are my reasons for the orders made.

The facts

6.The appellant was convicted after trial before Beeson J and a jury[1] of unlawfully trafficking in a dangerous drug, [2] namely 466.09 grammes of a solid containing 389.58 grammes of cocaine, and sentenced to 13 years’ imprisonment.

7.The facts of the case were quite straightforward.  The appellant was stopped by police in Yau Tong walking up and down beside a car and was approached by the police.  He was found in possession of a box containing cocaine and also in possession of the keys of the car in which a further quantity of cocaine was found. 

8.The only substantial issue was the appellant’s knowledge of the contents of the box and car.  The prosecution case was that it was to be inferred that the appellant knew of the presence of the dangerous drugs in both.  The defence case, on the other hand, was that he did not know what the box contained or of the presence of the drugs in the car.

9.The appellant did not give evidence at trial but relied on the content of his video recorded interview (“VRI”) in Cantonese.  That was critical to his defence as, in it, he sought to explain the reason why he was present at the scene.  His explanation was that he had previously delivered his car to someone called “Hak Chai”, who was a car repairman, to provide a quote for its repair and he had arranged to meet Hak Chai in Yau Tong to pay him.  When he arrived, Hak Chai said he had to go to the lavatory and so asked the appellant to wait by the car for him.  He left the car key with the appellant in case he had to move it to avoid being ticketed.  He also left a box saying that there was something valuable inside it and that someone would come and collect it.  He asked the appellant to look after the box in his absence.  The appellant agreed, since he still wanted Hak Chai to take the car away for repairs.  Hak Chai had previously done this twice before and the appellant assumed the parcels contained spare motor parts.

10.The appellant’s defence therefore hinged on the credibility of his explanation in the VRI.  The jury’s verdict, convicting the appellant, was unanimous and so it is apparent that they did not believe the appellant’s defence.

The mistranslated portions of the VRI

11.In the course of her summing-up to the jury, the Judge commented on the appellant’s defence as contained in the VRI.  Unfortunately, and without any fault on the part of the Judge or on the part of trial counsel (both of whom were non-Cantonese speakers), she proceeded to do so on the basis of three mistranslations in the English transcript of the VRI.

12.The mistranslated answers were the answers identified as counters 74, 310 and 314 in the VRI.  As originally, and incorrectly, translated, they were as follows:

(1) Counter 74:

“On that – that day, I reached there, I – I intended to – I reached there on that day, I paid him money for repairing (the car) for me, well, he left – left me an ignition key, he said, (‘)Hey, you look after the car first, because if a moment later, the car is to be moved, if (you are going) to be ticketed, you can drive (it) away.(’) Well, so I received the ignition key, well, I stood outside, outside the car and waited. I had no idea that there were such things on the car – car.” (Emphasis added)

(2) Counter 310:

“Because in the past there – there wasn’t any problem all along, there wasn’t any problem all along. Well, anyway – anyway, that is, (we) knew – knew each other, like that, well, therefore (I) handed over to him. He – that is, before I saw him, it was okay, (he) had a sense of responsibility, like that, and this time, when he quoted a price for me, he immediately gave me a reply on the price within one (or) two days or so, well, slightly over two thousand bucks for fixing (it), in any event, he fixed (it) for me, well, I – I ….” (Emphasis added)

(3) Counter 314:

“Well, that was why I had the car fixed, well, I – I arranged with him to meet – meet in Yau Tong, at my mother’s, I just arrived there, well, he – he was already there, waited for me there.” (Emphasis added)

13.Instead, the correct certified translation of those answers was:

(1) Counter 74:

“On that, that day, I went down there. I, I intended to, on that day, I reached there. My (purpose) was to bring him the money for the repair work for me. Well, he put down, also put down and gave me the car key. He said, ‘Hey, you watch the car first because if a while later, the car is to be moved (or) if (you’re to be) ticketed, you can drive (it) away.’ Well, so I took over the car key. Well, I stood outside, outside the car to wait. I had no idea that there was such thing in the car, the car.” (Emphasis added)

(2) Counter 310:

“Because all along, all along there hadn’t been any problem, all along there hadn’t been any problem. Well, given that, given that, that is, (I) know (him), (we) know each other, well, (I) handed (it) over to him. He, that is, I found that previously he was okay, a (person) with a sense of responsibility, and this time, when he helped me get a quotation, he immediately gave me a reply on the price in just about one or two days. Well, some two thousand dollars for the repair. All in all, he helped me see to it. Well, I, I …” (Emphasis added)

(3) Counter 314:

“Well, that was why I (would) have the car fixed. Well, I, I arranged to meet him at, at Yau Tong, at my mother’s. I just arrived there. Well, he, he was already there, waiting for me.” (Emphasis added)

14.The significance of these mistranslations in the context of the Judge’s summing-up will be addressed below.  For present purposes, it is important to point out that the difference in the translations lay in the fact that, as properly translated, the appellant’s version was that he had earlier handed his car over to Hak Chai to quote for its repair, that Hak Chai had brought his car back to Yau Tong on the night in question to collect the cost of its repair and that the appellant’s car was at that time still awaiting repair.  As the Court of Appeal noted, the emphasis was on the fact that the appellant’s car was still awaiting repair.[3] With the benefit of the correct translations (and having watched the VRI during the hearing), the Court of Appeal was in no doubt that the Judge was misled by the mistranslations.[4]

The intermediate appeal and leave to appeal to this Court

15.The appellant applied to the Court of Appeal for leave to appeal against his conviction.  One of the appellant’s two grounds of appeal against conviction was that, because of these mistranslations, the Judge misunderstood the appellant’s VRI and made unfounded criticisms of his explanation in that interview.[5]

16.Although accepting that the Judge was misled by the mistranslations,[6] the Court of Appeal came to the view, for two reasons (which I will address below) that her analysis of the VRI would not so colour the minds of the jury that their verdict was unsafe.[7]

17.Leave to appeal to this Court was granted by the Appeal Committee on the ground that it was reasonably arguable that the trial judge’s comments in her summing-up to the jury relying on the mistranslated portions of the appellant’s VRI may have resulted in the appellant not receiving a fair trial.[8]

The judge’s duty in a summing-up

18.A trial judge is under a duty, when addressing a jury, to summarise the issues and the evidence that relates to them clearly, accurately and fairly.  The principle is succinctly stated in HKSAR v Lin Ping Keung (2005) 8 HKCFAR 52 per Chan PJ at [24]:

“A trial judge is under a duty to summarize the issues and the evidence relating to these issues clearly, accurately and fairly to the jury. Although the jury are the sole judges of the facts, the trial judge is also entitled to express to the jury his or her views on the evidence, provided that the jury are told in clear and unambiguous terms that those are only the judge’s personal views, that the jury must form their own views on the evidence and that they can ignore the judge’s views if they do not agree with them. However, notwithstanding such direction, it is perhaps understandable that the jury might sometimes attach more weight to the views of the trial judge than those expressed by counsel. It is therefore important that a judge should be very careful in making comments on the evidence, particularly comments adverse to the accused.”

19.As Chan PJ also noted in that case (at [26]-[27]):

“26. … what a judge says to the jury is very often the last word they hear before they retire and carries more weight than what defence counsel says in a closing address and what the judge says must truly and accurately reflect the evidence, must give a fair and balanced guidance to the jury …

27. If a trial judge chooses to make adverse comments on the defence, it is important that the facts on which the comments are based are correctly stated”.

20.Lord Hailsham of St Marylebone LC also drew attention to the requirement of accuracy and correctness in a judge’s direction to a jury in R v Lawrence [1982] AC 510 at p.519H, where he said that the direction:

“… should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts.”

21.This principle in relation to the summing-up is a facet of the fundamental right of a defendant charged with a criminal offence to a fair trial.  As Litton PJ held in Tang Siu Man v HKSAR (No.2):

“Every defendant in a criminal trial in the High Court has a fundamental right to a fair trial, conducted in accordance with law. …

When it comes to the summing-up, the fundamental rule is that this must be fair and balanced, so that the jury can properly weigh up the true issues.”[9]

22.Self-evidently, where evidence in one language is translated for the benefit of the court or parties, as often happens in this jurisdiction, it is important that the translation is true and accurate.  Meaning, sometimes difficult in one language on its own, may become elusive in translation and, in mistranslation, unattainable.  Whether a mistranslation leads to unfairness in a trial, however, will necessarily depend on the nature and context of the mistranslation and its importance to the issues in the particular case.

The Court of Appeal’s reasons for dismissing the intermediate appeal

23.The Court of Appeal’s first reason for its conclusion that the mistranslated portions of the VRI did not result in any material unfairness was that much of what the Judge said was directed at the generally confused and muddled nature of the appellant’s answers in his VRI.  The reasoning, set out in the CA Reasons for Judgment, was as follows:

“16. First, we have watched the VRI during the hearing and although the applicant was orally fluent, what he said, when shown through a verbatim record in writing, is not the best example of clear communication. On the contrary, there was much disregard for proper sentence construction and not a few instances of going back and forth in time. At one point, when relating a past incident (counter 70), and whether or not he was conscious of it, the applicant even subverted his otherwise consistent position and pointed to himself and not Hak Chai as the one giving the excuse to leave the car. All of that, plus the direct and other-than-idiomatic rendition that pervades the original certified translation, does give a certain factually questionable quality to the VRI, which was not helped by the fact that some of the more important information contained in it was offered piecemeal and not all in one go. Looking at the matter in the round, we are satisfied that much of what the judge said was directed at that aspect of the VRI, albeit that some of it may have been generated by the said mistranslations. That it was so would have been obvious to the jury who, we have ascertained, had watched the VRI during the trial and had the assistance of the transcripts at the same time.”

24.The Court of Appeal’s second reason for dismissing the appellant’s application was as follows:

“17. Second, upon our enquiry, Mr Tze [counsel for the appellant] has fairly accepted that, notwithstanding the anomaly at counter 70 (see previous paragraph), the bulk of what the applicant said in the VRI should be clear to the native Cantonese speaker. It should be clear that, according to the applicant, in the instant case as in the past, Hak Chai would, on occasions of the applicant’s car needing repair, exploit the opportunity, drive it to a certain location and, drumming up an excuse, leave the applicant to watch over it with something ‘valuable’ onboard, the suggestion being that the drugs belonged to Hak Chai and not him. This concession of Mr Tze is important because as this Count has discovered, almost immediately after the jury was retired (12:38 pm), they had asked to review the VRI on disc (12:45 pm). Their note to the judge reads: ‘The juror team would like to take a look of (sic) the video file no. KTRN 12017847 case no. HCCC 351/2012 again!’ This is without a doubt the best proof that, whatever view the judge may have expressed about the VRI, the jury had gone to the primary material to determine for themselves what to make of the applicant’s account.”

25.In this Court, the appellant contended that the Judge’s reliance on the mistranslations and her adverse comments based on them were such as to render his trial unfair. Counsel for the appellant, Mr James Tze, essentially maintained the same arguments advanced below in support of the appeal.  For its part, counsel for the respondent, Mr Eddie Sean,[10] invited us to uphold the Court of Appeal’s reasons for rejecting the appellant’s ground of appeal and to dismiss this appeal.

An analysis of the Court of Appeal’s reasoning

26.As regards the Court of Appeal’s first reason for dismissing the appellant’s application, there is some justification for its view that the VRI was “not the best example of clear communication”.  It may be a fair comment that some of what the Judge said was directed at the ungrammatical and sometimes opaque nature of the appellant’s answers in his VRI but, for the following reasons, this is not a complete answer to the appellant’s complaint.

27.In her summing-up, at the outset, the Judge outlined the prosecution case and pointed out that the key issue was knowledge.  After directing them on the burden and standard of proof, she quite properly directed them that they should acquit if what the appellant said in the VRI was or might be true.  She then directed them on the elements of the offence and on the drawing of inferences.  She reminded them of the oral evidence of the two prosecution witnesses and then proceeded to address the appellant’s VRI.

28.At that point in the summing-up, the Judge told the jury that the VRI consisted of incriminating parts and also excuses or explanations and she directed them to consider the whole of the statement when deciding where the truth lay.  She then proceeded to go through the VRI and to point out areas that the jury might like to give their attention to.  Before doing so, she said this:

“I should point out that throughout the Video Interview the defendant gives slightly different answers at various stages to the same question. It is not entirely clear whether he was waiting to have the car assessed, in other words the quote was to be given, that he was to pay for the work to be done and then have it done, or whether it had been arranged before. At one point it appears that he left the car with ‘Hak Chai’ for two days before he came out to pick it up.”[11]

29.With the benefit of the correct translations, it is highly doubtful that the Judge would have made those remarks since the correct translations would not have suggested these apparent chronological difficulties in the appellant’s VRI answers. After all, as was implicit in the Court of Appeal’s acceptance that the Judge was misled by the mistranslations, the VRI was clear as to what the appellant’s account was.[12]

30.Further, in a later part of the summing-up, the Judge referred to the appellant’s answers at counters 310 and 312 and said of counter 312 that this was “another variation of the account of why he was at ‘Hak Chai’s’ place”.[13] That the latter answer in counter 312 was an inconsistent account proceeds on the basis of the mistranslated counter 310: counter 312 stated that the car had not yet been fixed, whereas the mistranslated counter 310 gave the impression that it had already been fixed.  Had the correct translation of counter 310 been relied upon, there would have been no inconsistency and so no reason for the Judge to make the adverse comment she did.

31.Given the importance to the appellant that the jury should accept his explanation in the VRI, it was critical to his defence that the jury be directed on the basis of correct translations of his answers and that any comments on those answers by the Judge be accurate and fair.

32.Turning to the Court of Appeal’s second reason for dismissing the appellant’s application, the thrust of the reasoning is that the content of the VRI would have been clear to a native Cantonese speaker and that, since the jury asked to see the VRI again, this meant that the jury “had gone to the primary material to determine for themselves what to make of the applicant’s account”.  That account was that, on this occasion as before, Hak Chai would use the request to effect repairs to the appellant’s car to create an opportunity to leave the appellant to watch over it with something valuable inside.  The suggestion was therefore that the drugs belonged to Hak Chai and not the appellant, who was ignorant of their presence.  That was the critical issue in the case.

33.However, the Court of Appeal’s second reason is problematic.  First, it is speculative to assume that all the jurors were native Cantonese speakers and would not have relied on the translation of the VRI since the trial was conducted in English.

34.Secondly, the jury did not raise questions with the Judge regarding the mistranslated portions of the VRI.  The reason for their request to review the VRI is not known and it is also speculative to conclude that they must have done so in order to check the accuracy of the Judge’s comments on the appellant’s answers.

35.Thirdly, and more importantly, it devalues the significance of the summing-up in the trial process.  The jury is bound, as well as entitled, to take the Judge’s summing-up into account in its deliberations on their verdict.  For the most part, juries pay close attention to a judge’s comments in summing-up and those comments, coming as they do from the judge, are likely to carry considerable weight with the jury, albeit that they are free to come to a different view on the facts: see, in this context, the reference to HKSAR v Lin Ping Keung (2005) 8 HKCFAR 52 per Chan PJ at [26] quoted above.  To suggest that the effect of the mistranslations and the Judge’s adverse comments would be mitigated by the jury conducting its own analysis of the evidence is to attach too little weight to the summing-up as part of the trial process.  As has been held, the repetition of formulaic directions to the effect that the jury are to make their own assessment of the facts and evidence is not sufficient to cure unfair comments on the part of a judge: see, in this context, the judgment of the Court of Appeal in HKSAR v Zhu Jinni [2012] 4 HKLRD 451 per Yeung VP at [37]-[38] and [41].

Whether substantial and grave injustice

36.It is well-established that, for an appeal to succeed on the substantial and grave injustice ground, it must be shown that there has been to the appellant’s disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice: So Yiu Fung v HKSAR (1999) 2 HKCFAR 539.

37.In my view, in the context of this case where there was only one issue and where the contents of the VRI and the appellant’s credibility were critical to that issue, the Judge’s comments on the basis of the mistranslated portions of the VRI resulted in the summing-up being unbalanced and unfair to the appellant.  Neither of the reasons given by the Court of Appeal for treating the comments based on the mistranslations as immaterial are, with respect, sufficient to overcome the unfairness to the appellant.  In the circumstances, the Judge’s comments in her summing-up to the jury relying on the mistranslated portions of the appellant’s VRI did result in the appellant not receiving a fair trial and there was therefore to his disadvantage a departure from accepted norms amounting to substantial and grave injustice.

Conclusion

38.These are my reasons for allowing the appeal and quashing the appellant’s conviction.  Given the nature of the case and the reasons for quashing the appellant’s conviction, it was plainly appropriate to order a re-trial, as Mr Tze fairly accepted.

Lord Walker of Gestingthorpe NPJ:

39.I agree with the Reasons for Judgment of Mr Justice Fok PJ.

Mr James Tze, instructed by Au-Yeung, Chan & Ho, assigned by the Director of Legal Aid, for the Appellant

Mr Eddie Sean SADPP and Mr Ivan Cheung SPP (Ag.), of the Department of Justice, for the Respondent