HKSAR v. Saeed Ur Rehman

CACC 257/2017

[2018] HKCA 503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 257 OF 2017

(ON APPEAL FROM DCCC NO 135 OF 2017)

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Before: Hon McWalters, Poon and Zervos JJA in Court

Date of Hearing: 19 July 2018

Date of Judgment: 19 July 2018

Date of Reasons for Judgment: 9 August 2018

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.This appeal concerned an issue about the interpretation of the evidence of a defence witness at the trial of the appellant.[1] At the conclusion of the hearing, we dismissed the appeal and these are our reasons for doing so.

2.The appellant and Ilyas Muhammad stood trial before District Court Judge Dufton (the judge) jointly charged with the offence of attempted burglary.[2] The particulars of the offence alleged that they “on 27^th day of December 2016, attempted to enter as trespassers part of the building known as 7^th Floor, No. 38F Kweilin Street, Sham Shui Po, Kowloon, with intent to steal therein.”[3]

3.Ilyas Muhammad was the 1^st defendant (who will be referred to as the 1^st defendant) and the appellant was the 2^nd defendant on the charge sheet.

4.The 1^st defendant pleaded guilty to the charge, while the appellant pleaded not guilty and proceeded to trial.  The appellant also faced another charge for an offence of burglary but this was not proceeded with by the prosecution.[4]

The 1^st defendant’s plea of guilty

5.In pleading guilty to the charge, the 1^st defendant admitted that he together with the appellant attempted to burgle the premises as described, and this was supported by a summary of facts to which he agreed.  In those summary of facts, the 1^st defendant was referred to as “D1” and the appellant as “D2”.  The relevant paragraphs read:

“2. At about 7:39 p.m. 2 police officers (PWs 2 & 3) arrived to investigate. When PW3 reached the staircase at 7/F he heard the noise of something striking metal and 2 men speaking in a foreign language. He then saw the defendants. D2 was looking round whilst D1 was using a crowbar to prise open the window of the flat.

3. PW3 then approached the defendants and revealed his identity. When D2 saw PW3 he shouted and he and D1 fled towards the staircase. D1 dropped the crowbar which was later seized by police. PW3 intercepted D2 while D1 was intercepted by PW2. They were arrested.”[5]

The appellant’s trial

6.The prosecution case against the appellant was that he was keeping a lookout for the 1^st defendant who at the time was trying to force open the window of the premises with a crowbar.  A report was made to the police who attended the scene.  The first police officer in attendance observed the two men attempting to break into the premises.  When he shouted “police”, they immediately ran off.  He then apprehended the appellant who was closest to him, while another police officer apprehended the 1^st defendant. 

7.The appellant’s case was that he did not know the 1^st defendant, and that he was in the building at the time to collect money from a friend.  The friend was not at home and as he was leaving he was arrested by the police.  The appellant gave evidence and called the 1^st defendant as a witness.  They are both Nepalese nationals and gave their evidence through a Urdu/English interpreter. 

8.At the conclusion of the trial, the judge convicted the appellant of the offence of attempted burglary and sentenced him to 3 years and 3 months’ imprisonment. 

9.The issue in this appeal concerns the translation of an answer of the 1^st defendant to a question asked of him during cross-examination.  Before examining this part of the 1^st defendant’s evidence, it is necessary to provide a summary of the evidence presented at trial.

The prosecution evidence

10.The prosecution case relied on the evidence of the owner of the premises where the attempted burglary took place, and the two arresting police officers.

11.The premises in question were a flat owned by Mr Ho Pak Tsai (who was PW1 at trial).[6] It was accessible by a corridor connecting the front staircase with the rear staircase of the building.  The flat’s door and kitchen window both faced the corridor, along which there were four units altogether.

12.At about 7:30 pm, on 27 December 2016, Mr Ho heard the sound of metal banging coming from the kitchen, as well as two men talking in a foreign language.  He went to the kitchen and saw the figure of a person outside the kitchen window, who was tampering with it.  At about 7:37 pm, he reported the matter to the police, and a few minutes later, four police officers arrived at the scene.

13.PC11620 (who was PW3 at trial) and PC6985 entered the building from the front staircase, while PC15607 (who was PW2 at trial) and PC6260 entered from the rear staircase.[7]  Upon reaching the 7^th floor (which was also referred to as the 8^th floor), PC11620 heard the sound of metal being struck and the voices of two men talking in a foreign language.  From a gap in the doorway at the top of the staircase leading to the 8^th floor, he observed the appellant looking around his surroundings while the 1^st defendant was using a crowbar to prise open the bottom window of the kitchen. 

14.PC11620 then went forward and shouted “police”. The appellant looked at the 1^st defendant and shouted something, whereupon they both ran off towards the rear staircase.  PC11620 immediately intercepted the appellant who was closest to him, while the 1^st defendant dropped the crowbar onto the ground and made his way to the rear staircase.  In the meantime, PC15607 had reached the 8^th floor from the rear staircase and saw the 1^st defendant running towards him.  PC11620 called out to PC15607 to stop the 1^st defendant which he did. PC15607 saw that PC11620 had intercepted the appellant in the middle of the corridor who was being assisted by another police officer, PC6260. 

15.PC11620 searched the appellant and found a wig in the pocket of his jacket.  PC15607 searched the 1^st defendant and found a receipt for a crowbar, a torch, two screwdrivers and a pair of scissors.  

16.An inspection of the flat revealed that the lock of the kitchen window had been broken and the exhaust fan was knocked out of its frame into the kitchen.

The defence evidence

17.The defence case rested on the evidence of the appellant and the 1^st defendant. 

The appellant’s testimony

18.The appellant testified that he went to the building to collect money he had lent to a friend by the name “Limbu”, who lived on the 8^th floor of the building.[8]  Limbu was not at home, and as he was walking down the stairs to leave, three to four uniformed police officers were coming up the stairs and told him in English not to move.  He stood there and asked the police if there was a problem.  He said the police then took him to the end of the corridor on the 8^th floor and told him to stand there.  He was asked by the police what he was doing, and he replied that he was meeting his friend to collect money.  Several minutes later while the police were talking to him, the 1^st defendant was brought up to the 8^th floor who was made to sit in front of him. 

19.The appellant said he did not know the 1^st defendant.  He said he did not go to the building with him; did not assist him to break into any flat; and did not see him use a crowbar.  He said the police asked the 1^st defendant if he knew him but the 1^st defendant did not respond at first because he was very frightened.  When the police asked the 1^st defendant a second time, he told the 1^st defendant to tell the police whether he knew him but the police told him to keep quiet.  The police asked the 1^st defendant again if he knew the appellant and he replied he did not know him.  He said the police had taken another Nepalese male to the corridor but he was not the one from whom he had borrowed money.  He said the 1^st defendant identified the other Nepalese male as his friend and that he had come to the building to meet him.  He said that the police brought up the Nepalese male because the 1^st defendant had told him that his friend lived there. 

20.In cross-examination, the appellant explained that the police first spoke to the 1^st defendant in Chinese and then in English but he did not reply.  He said that he therefore explained to the 1^st defendant that they were asking him what they were doing there.  He said that the 1^st defendant told him that he was there to meet his Nepalese friend which he conveyed to the police.  He was questioned about why he had a wig in his possession.  He said that it was given to him that evening by a friend as a sample to see if he could sell them. 

21.In a subsequent video recorded interview, the appellant confirmed that he did not know the 1^st defendant and did not see him in possession of a crowbar.

The 1^st defendant’s testimony

22.As the evidence of the 1^st defendant is the subject of this appeal, it will be necessary to examine his evidence in some detail although it was fairly brief.[9]

23.In examination-in-chief by counsel for the appellant, the 1^st defendant agreed that he pleaded guilty to the charge in the case and that he admitted the brief facts as true and correct. He confirmed that at the time he was at the premises with another person, who was not the appellant, but someone else whom he described as “Pria Nepali”.  He said that he did not see the appellant at the location and did not know him before the date of the offence.  He was asked if at any stage did the appellant assist him to do anything and he answered affirmatively.  Notwithstanding that he agreed to the appellant assisting him, the matter was not pursued or clarified by counsel for the appellant.  He was finally asked in examination-in-chief whether the appellant was arrested by the police and he said he did not know. 

24.In cross-examination by prosecuting counsel, the 1^st defendant explained that when he was arrested by the police, they brought him up to the premises and it was then that he saw the appellant. He added that the appellant was standing there talking to the police.  He was asked when the police arrived, was he in the process of breaking into the flat.  He said he did not remember and at the time “we were sitting with Pria on the stairs”.  There was an exchange between the judge and the interpreter about the quoted remarks because his answer gave the impression that there were more than two persons present.  The interpreter reiterated that the 1^st defendant said “we were sitting with Pria”.  It should be noted that the 1^st defendant’s interpreted answers during this exchange are not in dispute.  He was further questioned about this and he said that only he and Pria were there.  He was asked whether he ran away when the police arrived.  He said he did because Pria had told him that “the police has arrived, so it’s not right to sit here”. 

25.Prosecuting counsel then moved on to the 1^st defendant’s plea of guilty to the charge of attempted burglary.  He agreed that he pleaded guilty to the charge, that the summary of facts were read out to him, and that he agreed to them.  He also agreed that he acknowledged to the judge that the facts were correct and that he accepted them.

26.It was at this stage that prosecuting counsel read out two paragraphs of the summary of facts to the 1^st defendant.  The two paragraphs are those that we have already referred to in our judgment, where the 1^st defendant admits attempting the burglary together with the appellant.  Prosecuting counsel commented that the two paragraphs bore no relation to the evidence that he had given in court.  He was asked if he had given a totally different story in his evidence, to which he agreed he had.  He was then asked which story was right, the one he agreed to in court or the one he was telling them now. 

27.There appears to have been some discussion between the 1^st defendant and the interpreter before an answer was given.  It is what was said between them that is in contention in this appeal. The interpreted answer was as follows:

“The statement has been read to me. I am not convinced with this.”

28.The judge inquired about this answer because he picked up there had been some discussion between them.  The interpreter stated that because he could not understand what he was trying to say, he asked him to say it again.  So the question was repeated, and he was asked which story was correct.  He answered as follows:

“Whatever I’m saying right now, this is the correct version. And what I said earlier, I think both are the same.”

29.The judge confirmed with the interpreter that he said they were the same, following which there was no further cross-examination, and no re-examination. 

The reasons for verdict

30.In delivering his verdict, the judge accepted the prosecution evidence.  He relied on the fact that the evidence of Mr Ho and PC11620 was consistent in that they both heard the sound of metal being struck and the voices of two men talking in a foreign language outside the flat at the material times.[10]

31.He accepted the evidence of PC11620 that the appellant was watching the surroundings of the corridor while the 1^st defendant was using a crowbar to prise open a window to the flat, and that when he went forward and shouted “police”, the appellant looked at the 1^st defendant and shouted something to him, whereupon the 1^st defendant dropped the crowbar and both the 1^st defendant and the appellant fled to the rear staircase.[11] 

32.The judge rejected the evidence of the appellant which he found not to be credible.  He rejected that he went to the building to visit a friend to collect money, that he was stopped by the police when walking down the staircase, and that when he was taken by the police to the corridor on the 8^th floor there was no one else there.[12] 

33.The judge also rejected the evidence of the 1^st defendant.  He said:[13]

“50. I have no hesitation in rejecting the evidence of D1 that he was with a Nepalese male on the 8th floor; was sitting on the staircase when the police intercepted him and that he only saw D2 after he was brought up. This evidence was materially different to the facts D1 admitted when pleading guilty, in particular that D2 was looking round when D1 was using a crowbar to prise open the window of the flat; and that when the police approached D2 shouted whereupon D1 and D2 ran towards the staircase.”

34.After a review of the prosecution evidence, he found to the requisite standard that the appellant together with the 1^st defendant were party to a joint enterprise to break into the flat with intent to steal and that their actions amounted to an attempt to do so.[14]

The issue on appeal

35.We turn to address the issue which is engaged in this appeal. 

36.The appellant in his original ground of appeal complained about the overall standard of interpretation which he said resulted in him being unfairly convicted.  At the leave hearing, McWalters JA identified a passage of the 1^st defendant’s evidence that had not been translated that he considered on the material before him was exculpatory in nature.  He therefore granted leave to address the issue of the mistranslation.  As it transpired, this was the only part of the 1^st defendant’s evidence where there was any question or dispute about the interpretation.  So it was not the case, as complained by the appellant, that the overall standard of interpretation was very poor.

37.Mr Richard Donald, for the appellant, submitted that significant exculpatory evidence from the 1^st defendant was not properly interpreted from Urdu into English, and as a result such evidence was not properly considered by counsel, or by the judge when determining the credibility of the 1^st defendant in relation to the guilt or innocence of the appellant. 

38.The issue therefore comes down to whether the court interpreter at trial failed to translate or translate correctly what the 1^st defendant said in answer to a question asked in cross-examination, and if so, whether it resulted in unfairness to the appellant to the extent that he was deprived of a fair trial, or that his conviction was rendered unsafe or unsatisfactory. 

Relevant principles

39.In addressing this issue, guidance is provided by the following comments of Fok PJ (with whom the other judges agreed) in HKSAR v Chan Ka Chun[15]at paragraph 22:

“… 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.”

40.How “fairness” is judged in such circumstances was explained by Ribeiro PJ in HKSAR v Lee Ming Tee & Another,[16] when addressing the question of fairness in the context of a permanent stay of criminal proceedings, at 150D-F:

“…The “fairness” achievable is judged in practical and not absolute terms.  As Brennan J pointed out in Jago v District Court of New South Wales (1989) 168 CLR 23 at p.49:

If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it.  Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness.”

41.In HKSAR v Shahid,[17] McWalters J (as McWalters JA then was) discussed the issue of mistranslation of evidence by reference to overseas authority.  He noted that interpretation during a trial is a spontaneous process which allows an interpreter minimal opportunity for considered reflection to interpret what is being said in one language to another.  In these circumstances, perfection is an unattainable standard and a degree of leeway is allowed as a matter of necessity but not to an extent that would deprive the accused of a fair trial.

42.Accordingly, an issue of this type will usually turn on whether there has been any unfairness to the accused, depriving him of a fair trial or rendering his conviction unsafe or unsatisfactory. 

The interpreted evidence

43.The relevant passage of the 1^st defendant’s evidence from the transcript is set out as follows.

“Q.  “At about 7.39 pm, two police officers (PWs 2 and 3) arrived to investigate.  When PW3 reached the staircase at 7th floor, he heard the noise of something striking metal and two men speaking in a foreign language.  He then saw the defendants.  D2 was looking round while D1 was using a crowbar to prise open the window for the flat.”

COURT:  Right.

Q.  Yes, and then the next paragraph: “PW3 then approached the defendants and revealed his identity.  When D2” – that’s the person in the dock – “saw PW3, he shouted and he and D1” – that’s you – “fled towards the staircase.  D1” – that’s you – “dropped the crowbar which was later seized by the police.  PW3 intercepted D2 while D1 was intercepted by PW2.  They were arrested.”  Now, do you agree with me that those two paragraphs bear absolutely no relation to the evidence that you have given in court this morning?  You’ve given a totally different story.  Yes?

A.  Yes.

Q.  So which one is right?  The one you agreed to in court two days ago or the one you are telling now?

A.  The statement has been read to me.  I’m not convinced with this.  

Q.  Which…

COURT:  Wait a minute. 

MR McNAMARA:  Sorry. 

COURT:  I…

MR McNAMARA:  Yes, sorry, your Honour. 

COURT:  Mr Interpreter, have you finished your translation of what the defendant said?

URDU INTERPRETER:  Yes, because before I couldn’t understand he was trying to say, so I asked him, telling me again.

COURT:  To clarify it.  Al right.  That’s…

URDU INTERPRETER:  So then he said…

COURT:  I just wondered because it didn’t seem like a one-sentence answer. 

MR McNAMARA:  Yes, yes, now I accept that, yes.

COURT:  That’s fine.  I have no difficulty with you, with any interpreter clarifying if they don’t understand what’s said.

MR McNAMARA:  Yes, yes. 

Q.  So but would you please answer my question?  Which story is correct?  The one that you agreed to in court two days ago or the one that you’re telling the court today?  Which one?  The first one or the second one?

A.  Whatever I’m saying right now, this is the correct version.  And what I said earlier, I think both are the same. 

Q.  Yes.

COURT:  Wait a moment.  Wait a moment.  Wait a moment.  The last part of the answer, “What I said earlier, I think it’s the same”.

URDU INTERPRETER:  Yes, “the same”.

COURT:  Yes, all right.” (Emphasis added)[18]

44.The above underlined answer of the 1^st defendant is the subject of the complaint. 

The mistranslation

45.Mr Donald submitted that the impugned answer did not fully and accurately convey what the 1^st defendant said to the interpreter.  What was left out was significant exculpatory evidence that may have had a bearing on the judge’s assessment of the defence case. 

46.The following translation of what the 1^st defendant said was submitted by the appellant. 

“The one which has been read over to me just now. They are saying that the guy was with me. Previously the evidence I gave, I clearly told them that he was not… In reality, he was not there.

Say again (the interpreter)

I do not agree with this evidence, what has been read over to me, I do not agree with it, I do not accept it.”[19]

47.At the leave hearing, the court interpreter in attendance listened to the audio recording of the proceedings and provided the following translation of what the 1^st defendant said.

“This evidence which is read to me it said this boy is with me. I have given my evidence before and in that I have said clearly that this boy was not with me, because in fact he was not there. I am not convinced with it and I don’t agree with it.”[20]

48.As already noted, the court interpreter at trial gave the following translated answer. 

“The statement has been read to me. I’m not convinced with this.”

49.In the discussion to follow, we will refer to the translation provided by the appellant as “the appellant’s translation”, and the translation produced at the hearing of the leave application as “the leave application translation”.

Analysis of the mistranslation

50.The first matter to address is the difference between the translated answer and what was actually said by the 1^st defendant. 

51.From the two additional translations that have been provided, the impression given is that the 1^st defendant was discussing or explaining his evidence with the interpreter when answering the question. 

52.In the leave application translation, it is stated that the appellant said that he was “not convinced” with the summary of facts as read but he also said he “did not agree” with it.  In the appellant’s translation, it is stated that the appellant said that he “did not agree” with and “did not accept” the summary of facts as read. 

53.From these two translations, it would appear that the following was said by the 1^st defendant:  

(1)  That his evidence was that the appellant was not with him which was different from the summary of facts that were read. 

(2)  That he was not convinced with or did not agree with or did not accept the summary of facts that were read. 

54.It has to be borne in mind that what the 1^st defendant said was in response to the question as to which of the two accounts he had given was correct, namely what he agreed to in the summary of facts or what he said in evidence in court. 

55.The first statement that the appellant was not with him and that his evidence was different from the summary of facts that were read had already been stated in evidence and was nothing new.  The second statement was his response as to which story was correct.  Whilst it had been interpreted that he was not convinced by the summary of facts, it had not been interpreted that he did not agree with or did not accept them.  The difference between not being convinced by the summary of facts as read, or not agreeing or not accepting them, may be viewed in the circumstances of the case as not being materially significant.  After all, what he was essentially saying was that he was disassociating himself from the summary of facts that he had previously agreed. 

56.However, whatever the difference, the 1^st defendant was later asked the same question, and he said that the correct version was the one that he gave in evidence.  There is no dispute that this later answer was correctly interpreted.  It was clear to the judge that the 1^st defendant was testifying that his evidence in court was the correct version and therefore implicitly he did not agree with the summary of facts that were read.  That is how the judge understood his answer to be on the question which of the two versions was the correct one.  

Discussion

57.Mr Donald submitted that the 1^st defendant’s actual answer was significantly different from the interpretation provided to the judge, in that he was only told that the 1^st defendant was not convinced with the summary of facts as read.  He also submitted that what the 1^st defendant said went further in that his answer was a categorical denial of the summary of facts.  He supports this proposition by arguing that when the 1^st defendant said in the appellant’s translation that he told “them” that the appellant “was not there”, this appeared to suggest that there may have been an issue with the interpretation of the summary of facts when he pleaded guilty. 

58.This argument ignores that the 1^st defendant prefaced the relevant remarks by saying “Previously the evidence I gave” and then went on to say “I clearly told them that he was not…  In reality, he was not there.”  He could only have been talking about the evidence he gave in court and this was not a reference to when the summary of facts had been read out at the time he pleaded guilty.  This argument also ignores that when the 1^st defendant pleaded guilty, the charge was read out to him which alleged that he together with the appellant committed the offence of attempted burglary and no issue had been taken with the summary of facts which contained many references to the appellant being his co-offender.  In his testimony before the court, he confirmed that when he pleaded guilty, he admitted the brief facts as true and correct.  He also acknowledged that the summary of facts and his evidence were different.

59.As the court record shows, the matter did not end with the impugned answer.  The judge asked the interpreter whether he had finished his translation and the interpreter explained that he could not understand what the 1^st defendant was trying to say, so he asked him to say it again.  That appears to have been the case.  According to the appellant’s translation, when the 1^st defendant was asked which version was correct, he initially said: 

“The one which has been read over to me just now. They are saying that the guy was with me. Previously the evidence I gave, I clearly told them that he was not… In reality, he was not there.”

60.It was at this stage that the interpreter said to the 1^st defendant “Say again”, which may be due to the fact that by what the 1^st defendant said, seemed to suggest that the correct version was that which was read over, namely the two paragraphs from the summary of facts.  However, he also said that previously in his evidence the appellant was not there.  These two statements appeared to be in conflict with each other.  So it is understandable that the interpreter may have been confused by the answer which led him to ask the 1^st defendant to say it again.  There followed the answer that the statement had been read to him, he was not convinced by it.

61.In any event, the question was asked again:

“Q. So but would you please answer my question? Which story is correct? The one that you agreed to in court two days ago or the one that you’re telling the court today? Which one? The first one or the second one?

A. Whatever I’m saying right now, this is the correct version.  And what I said earlier, I think both are the same.”

62.There is no dispute with the translation of what was said by the 1^st defendant.  It accurately conveyed his answer to the question and was evidence before the judge. 

63.As to the answer by the 1^st defendant that “what I said earlier, I think both are the same”, this could be a reference to his previous answer.  The judge does not treat this answer as meaning that his evidence and the summary of facts were the same as suggested by Mr Donald in his written submission. 

64.There was no re-examination by counsel for the appellant on the different accounts given by the 1^st defendant.

65.Mr Eddie Sean, for the respondent, took issue with the appellant’s complaint and submitted that whilst the interpreted answer was a “shortened translation” of what the 1^st defendant said, it nevertheless conveyed his answer that he did not agree with the summary of facts that were read.  He noted that this was how the judge understood his answer, namely that the summary of facts were not correct and his evidence was that the appellant was not with him.

66.There was no answer to the fact that the 1^st defendant’s evidence was materially different to the facts that he admitted when he pleaded guilty.  Whilst certain things that he said when the question was first asked were not interpreted, it was interpreted that he was not convinced with the summary of facts that were read.  However, later the question was asked again, and it was made clear by him that the correct version was his evidence in court, where he had testified that the appellant was not there. 

67.In summary, the 1^st defendant testified that the appellant was not present with him when committing the offence, and that this account was the correct one.  That is how the judge understood his evidence, and this was reflected in his reasons for verdict.[21] 

68.In our judgment, when properly analysed, no unfairness resulted from what transpired. 

69.The judge in his careful analysis and evaluation of the evidence rejected the evidence of the appellant and the 1^st defendant, and in light of the strength of the prosecution evidence, was satisfied to the requisite standard that the appellant was guilty of the charge. 

Conclusion

70.In light of the foregoing, we were satisfied that the mistranslation did not result in any unfairness that deprived the appellant of a fair trial, or rendered his conviction unsafe or unsatisfactory.  We therefore dismissed the appeal.

Mr Eddie Sean, SADPP of Department of Justice, for HKSAR

Mr Richard Donald, instructed by Johnnie Yam, Jacky Lee & Co, for the appellant