HKSAR v. Moala Alipate

CACC 135/2017

[2019] HKCA 537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 135 OF 2017

(ON APPEAL FROM HCCC NO 86/2016)

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BETWEEN

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Before: Hon McWalters JA, Poon JA and Zervos JA in Court

Date of Hearing: 26 February 2019

Date of Judgment: 26 February 2019

Date of Reasons for Judgment: 16 May 2019

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.The applicant was tried on an Indictment containing a single count of unlawfully trafficking in 1,076.80 grammes of a crystalline solid containing 1,057.20 grammes of methamphetamine hydrochloride, commonly known as Ice, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The applicant pleaded not guilty to the offence. On 26 April 2017, after a trial before Deputy High Court Judge D Yau (“the judge”) and a jury, the applicant was convicted by the verdict of the jury. He was sentenced to 23 years and 9 months’ imprisonment on the following day.

2.On 10 May 2017, the applicant filed a Notice of Application for Leave to Appeal (Form XI) against his conviction. 

3.At the hearing of the application we allowed it and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal, quashed the conviction, set aside the sentence and ordered a retrial.  We said we would later hand down our reasons for doing so.  These are our reasons.

The trial

The prosecution case

4.The applicant was intercepted by police officers on 14 September 2015 at around 20:15 hours as he was walking towards counter C5 in the Departure Hall of the Hong Kong International Airport.  He was pulling a black travel bag and carrying a green travel bag in his right hand.  He was in possession of an air ticket for a flight due to depart at 21:05 hours on that day from Hong Kong to Auckland.  The applicant was requested by the police officers to accompany them to the Police Post for a search of his luggage. 

5.Police officers subsequently found two game console boxes in the black travel bag, both of which contained a game console and some video games accessories.  Inside the game consoles the police found packets of suspected dangerous drugs, later confirmed to be Ice in the quantity that is particularized in the Indictment.  The Ice had an estimated street value of HK$348,883.  The applicant was then arrested and cautioned.

6.DNA examination was performed on the wrappings of the dangerous drugs.  It was an Admitted Fact that the applicant’s DNA was detected on the wrapping material of one of the packets of dangerous drugs but his fingerprints were not found on either of the game consoles. 

7.Dr Ip gave expert opinion for the prosecution, and explained how a person’s DNA material could be deposited on a surface, including by indirect transference. 

8.The issue at trial was whether the applicant had knowledge of the dangerous drugs and had the intention to exercise custody or control over them.  The prosecution invited the jury to draw the inference that the applicant must have known there were dangerous drugs in the black travel bag which he carried.  It was suggested that from the way the Ice was concealed in the game consoles and the fact that the applicant’s DNA material was found on the wrapping material of one of the packets of Ice, the only inference to be drawn was that the applicant had knowledge of the dangerous drugs in his luggage and that he intended to transport them from Hong Kong to Auckland.

The defence case

9.The applicant elected to give evidence.  He claimed he had no knowledge of the dangerous drugs concealed in the game consoles that were in the black travel bag.  He said he had been tricked into carrying the dangerous drugs from Hong Kong to New Zealand. 

10.The applicant said he was approached by a person called Anthony in or about July 2015, who asked him whether he would be interested in carrying some “chemicals” to New Zealand which would be used for cleaning money.  He was told that the job was offered by a rich man called Michael Osei, and that when the job was done, he would be paid US$5 million. The applicant said he had asked a number of times at different stages whether it was illegal to carry these chemicals but the answer he got on every occasion was that it was not illegal.  As Anthony had always been talking about Christianity with the applicant, the applicant said he fully trusted him and did not have any suspicions about the “job” and the people involved.  At the trial, the defence adduced a number of emails from Michael Osei in support of the applicant’s claim that he was the victim of a deception.

11.When the applicant was in Hong Kong, he was greeted by a Nigerian man called Boyo, who subsequently gave him the black travel bag with the dangerous drugs concealed in the game consoles.  The applicant said he had opened the bag, looked inside but did not touch anything.  Boyo reassured him that everything in the travel bag was legal. 

12.When asked about the presence of his DNA material on the wrapping of one of the lumps of the dangerous drugs, the applicant said that he had never touched the dangerous drugs.  However, he said that once during the video recorded interview, he had held out his hands to touch one of the packets of dangerous drugs, but this was denied by the police officer in the prosecution case.

13.The defence called expert evidence to explain how the applicant’s DNA material could have been innocently transferred to the wrapping of one of the packets of dangerous drugs. 

14.The defence also called another defence witness, Mr Nicholas Rowton, to support the applicant’s testimony that a person using the same name of Michael Osei had contacted people via emails concerning the cleaning of money by the use of some kind of chemical.  Mr Rowton testified that he was approached by a person called Michael Osei who explained to him about the money cleaning process.  The emails Mr Rowton received, and which he produced, bore similarities to those produced by the applicant.  Furthermore, the Michael Osei who sent the emails to Mr Rowton used the same email address as the Michael Osei who contacted the applicant.

The Amended Perfected Grounds of Appeal

15.The applicant’s counsel, Mr Gerard McCoy SC, in his Amended Perfected Grounds of Appeal filed on 30 November 2018 put forward seven grounds of appeal, namely:

(1)  the judge erred in not providing copies to the trial counsel of the five notes that he had received from jurors[1] (Ground 1);

(2)  the judge failed to maintain an adequate speed in his summing-up, as a consequence of which the interpreter was unable to fully interpret the summing-up to the applicant (Ground 2);  

(3)  the lack of experience of the court appointed interpreter to assist the applicant, resulted in the interpreter, inter alia:

(i) being unable to keep up with translation;

(ii) mistranslating parts of the evidence;

(iii) failing to translate or correctly translate the evidence;

(iv) omitting evidence;

which led to an overall standard, accuracy and quality of interpretation that resulted in unfairness of an extent that the applicant was deprived of a fair trial (Ground 3);

(4)  the judge failed to adequately sum up the evidence of the defence witness Mr Rowton (Ground 4);

(5)  the judge failed to provide a lies direction to the jury (Ground 5);

(6)  the judge failed to properly direct the jury of the use of expert evidence (Ground 6); and

(7)  the judge erred in rejecting the defence’s request to adduce evidence from the Commissioner of the Customs and Excise Department and failed to provide reasons for so ruling (Ground 7).

16.As we agllowed the appeal in respect of Grounds 2 and 3 it is only necessary to refer to those grounds as they were argued by Mr McCoy in his written submission.

17.In respect of Ground 2, Mr McCoy submitted that the speaking rate of the judge at his summing-up was excessively fast.  In support of this assertion, Mr McCoy relied on the evidence of the trial interpreter, Mr Afu, who had complained to the applicant’s legal representatives at trial that the judge was speaking too fast for him to be able to properly interpret what was being said.  Defence counsel had informed the judge of the interpreter’s difficulties in coping with the speed and the judge said he would try to slow down.

18.Mr McCoy submitted that the applicant’s understanding of the whole of the summing-up was an integral part of a trial process and it is a basic right of an accused to know what is happening in court throughout his trial.  He referred to In re Applied Language Solutions Ltd [2], where the English Court of Appeal said:

“It is clear that the provision of an interpreter for a witness or a defendant in a criminal case is an obligation of the state which is regarded as an integral part of its obligations to provide a fair and just system of criminal justice. …”

19.In respect of Ground 3, Mr McCoy submitted that the interpreter, Mr Joshua Afu, did not possess the relevant skills and the necessary ability to perform the duties of an interpreter in a trial at the High Court before a jury and his limited ability had compromised the fairness of the applicant’s trial.  The failure of the interpreter to use the appropriate words or to interpret to an extent that fully reflected the answers given by the applicant, could have conveyed the impression to the jury that the applicant was unresponsive, incoherent, inconsistent or even being evasive and this could have resulted in the jury making adverse findings against the applicant and ultimately influenced the outcome of the trial.

The respondent’s submission

20.In his written submissions, Mr John Marray, for the respondent, submitted, in respect of    Ground 2, that the recording of the summing-up demonstrated that the judge spoke articulately and clearly and what he said was easy to comprehend.  Anyone listening to the recording would conclude that the judge did not speak too quickly. 

21.The summing-up was to assist the jury in their deliberations and in R v Gjejlal Recica and Another[3], where the summing-up was not interpreted at all to the defendants in a quite complex case, it was said that the absence of interpretation of the summing-up did not render the conviction unsafe.

22.In respect of Ground 3, Mr Marray submitted that imperfections in interpretation of court proceedings are recognized as long as they are not such as to deprive an accused person of his right to a fair trial.  Mr Marray referred to the case of Abdula v R[4], which concerned the question of whether the standard of interpretation was compliant with the relevant provision in the New Zealand Bill of Rights Act, which in substance is identical to Article 11(2)(d) and (f) in section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.  In Abdula, the Supreme Court of New Zealand discussed the difficulties associated with interpretation and emphasized that perfection in interpretation was an unattainable goal.  Mr Marray drew heavily from this judgment for guidance on how a court should determine a claim that the standard of interpretation was non-compliant with the Article 11(2)(f) right.

23.Mr Marray also referred to the Canadian Supreme Court judgment of R v Tran[5], where the court expressed itself similarly and cautioned against examining interpreted evidence microscopically for inconsistencies. 

24.Mr Marray submitted that in the present case, given the applicant’s English language ability, the court can be satisfied that the applicant did understand the questions put to him in his evidence as the answers he gave were to those questions.  The applicant did not comment on the quality of interpretation during trial when he himself was said to speak “perfect English” and was in a position to understand the proceedings and even gave evidence in English.

25.Mr Marray asserted that it had not been shown that the interpreter was not competent.  The applicant’s daughter, he noted, was present during the applicant’s evidence and did not query the quality of the interpretation.

26.Mr Marray argued that any errors, mistranslation and omissions were of a minor nature and did not prevent the applicant from giving his answers or prevent the jury from understanding the applicant’s answers. 

The application to adduce new evidence

27.In support of his grounds of appeal, Mr McCoy applied under section 83V of the Criminal Procedure Ordinance, Cap 221, to adduce fresh evidence on the appeal.  The evidence sought to be adduced was set out in a number of affidavits.  We agreed to hear the evidence de bene esse and said we would later decide whether we would receive it.    

28.One of the witnesses from whom Mr McCoy wished the court to hear was the interpreter at trial, Mr Afu, who is now resident in Brisbane, Australia.  An application was made by Mr McCoy, before the hearing of the appeal, and acceded to by the court, for Mr Afu to give evidence in the appeal by live video link under section 83V(14) of the Criminal Procedure Ordinance and in accordance with the provisions of the Live Television Link and Video Recorded Evidence Rules, Cap 221J. 

29.Having heard Mr Afu, we were persuaded we should accede to the section 83V application in respect of his evidence and, in the interests of justice, receive it in support of the applicant’s Grounds 2 and 3.  As it was such credible and compelling testimony, we did not feel the need to hear further evidence in support of these grounds and immediately asked Mr Marray to address us on its impact and on these two grounds of appeal.

The evidence of the interpreter

30.In his evidence, Mr Afu testified that he was working in Hong Kong, as a professional rugby player and a coach, when he was approached to perform the duties of a Judiciary interpreter in the applicant’s trial.  He had no previous experience as an interpreter.    

31.He said he learnt the Tongan language from his parents and the Tongan community whilst growing up in Brisbane.  At school the teaching medium was English.  He did not attend university and on leaving high school he embarked on a career as a professional rugby player.

32.In respect of his ability to interpret the summing-up, Mr Afu said:

“Q.	That’s right. Now, can you tell the judges in your own words whether you were able to competently keep up with the summing-up as it went on?
A.	No, I felt that I couldn’t translate everything that the judge had -- had said to the jury. Yes, I felt that it was a bit quick for me to get everything that I needed to -- to get across to Mr Alipate, but also just from my ability to be able to translate from the English to the Tongan language, I find it -- what’s the word -- a bit tough at times, obviously, trying to find the right word for that meaning because I -- I don’t want to get anything missed out, if you know what I mean.
Q.	Now, the judge is plainly reading something to the jurors. Did you have a copy of that?
A.	No.
Q.	So, when the judge is talking, how do you interpret? He’s talking, you’re...
A.	I tried to -- I tried word for word if possible, but then I also try and -- at times word for word doesn’t work in a Tongan sentence, if you know what I mean, because the sentence structure possibly is a bit different from the way that the sentence structures in Tongan to English. So, for me to do it word for word sometimes it wouldn’t make any sense.
Q.	Right. And the judge is continuously talking. You’re interpreting. But while you’re doing that interpretation, the judge is still talking, is that right?
A.	Yes, that’s correct.
Q.	He’s not stopping clause by clause or sentence by sentence as you’re interpreting.
A.	No.
Q.	So, how could you seriously remember what the judge was saying when he was doing that?
A.	I just tried to my best in translating. I tried to write a couple of things down, but obviously translating, interpreting and writing things down as well as trying to hear the judge made it a little bit difficult.
Q.	Could you follow and interpret the matters of law, the legal analysis that the judge gave to the jury?
A.	No, not all of them, no.
…
Q.	What is your estimation, your best estimation of how much of the exact summing-up that you were able to exactly interpret, bearing in mind the speed of it?
A.	Exactly interpret maybe 20 or 30 per cent of it maybe.  It was a fairly long summing-up from what I can recollect, but obviously it may not even be that long, but I just couldn’t -- probably 20 to 30 per cent of it is what I can pretty accurately say that I can translate.”

As to his knowledge of the Tongan language, he said:

“Q.	Right. And your vocabulary in Tongan, do you think it’s at the level of a native Tongan speaker in Tonga?
A.	No.
Q.	What sort of assessment of your level of vocab in Tongan do you think you really have?
A.	I can -- I can understand the Tongan language and I can speak the Tongan language and I can write the Tongan language, but there are parts of the older Tongan language that I don’t understand or I can’t speak. That’s sometimes probably directly linked to some of the words in law and stuff like that, but I’m not too sure.
Q.	Do you know how to say ‘DNA’ in Tongan?
A.	No.
Q.	Do you know what the word in Tongan for ‘suspicion’ is?
A.	No. I’d probably know something close to that, but the exact word for ‘suspicion’, no.
…
Q.	Now, as a Tongan speaker, a Tongan speaker, what do you assess your overall quality and level as? Can you do it in a percentage terms?
A.	I’d probably know around about 70 per cent maybe, possibly that, around about there.
Q.	Yes. And...
McWALTERS JA: Sorry, that was vocabulary, was it?
ZERVOS JA: As a speaker.
MR McCOY: As a Tongan speaker.
McWALTERS JA: As a Tongan speaker.
MR McCOY: As a Tongan speaker.
Q.	And your ability to interpret Tongan into English, what do you estimate that ability to be?
A.	Probably around about 50 to 60 per cent maybe. But, yes, like I said, some of the words in English I find tough to translate into Tongan and have the exact word for word.
Q.	And from English into Tongan, what is your ability?
A.	Around about the same, maybe a little bit less.
Q.	Is it -- sometimes in some languages it’s harder to go one way than the other?
A.	Yes, yes.
Q.	Is it harder for you to go English into Tongan or Tongan into English?
A.	English into Tongan is harder for me, I find.”

33.When cross-examined by Mr Marray, he was asked about the frequency of his use of the Tongan language, and his explanation was revealing.  He said:

“Q.	And when you were at home as a child, as a young adult, would you speak to your parents in the Tongan language?
A.	A little bit, but mostly English.
Q.	Do you have other relatives from Tonga in Brisbane?
A.	Yes.
Q.	Would you communicate with them -- to them in the Tongan language?
A.	Again, mostly in English, but every now and again I would speak Tongan to them, yes.
Q.	And from an early age, were your parents anxious that you speak Tongan?
A.	Yes, they wanted us to speak Tongan, yes.
Q.	And did your parents ensure that, in fact, you did learn Tongan?
A.	Yes, through church, taking us to Tongan church and trying to speak to us in Tongan.
Q.	And where did you learn to write Tongan?
A.	Just growing up and reading a little bit of the Tongan Bible and it...(indistinct) understanding of words that were in that. I never had any formal Tongan writing classes or anything like that.
Q.	But you can read and write in Tongan?
A.	Yes.
Q.	And in the church, would that play an important role in your free time when you were growing up?
A.	Yes.
Q.	And at the Tongan church would people converse in the Tongan language?
A.	Yes.
Q.	So, would it be fair to say that throughout your childhood and young adulthood, you were speaking in Tongan on a regular basis?
A.	More...(indistinct), yes, on a Sunday we’d be speaking Tongan with church members, but then other than that, it was all English throughout the rest of the week.”

34.It was also put to him that had he felt unable to properly interpret he would have said so.  Here, his response was also quite telling.  He said:

“Q.	And would it be right to say that if you felt that you were not up to the job of being an interpreter, you would have said so?
A.	Yes, and the fact that they said that there wasn’t anybody else within the country and it was critical for somebody to be able to help to get the court proceedings under way because there had been -- from what I was told, there had been a fair bit of time that he was already incarcerated.
Q.	But if you felt that, ‘Actually, I’m not good enough to do this,’ you would have said so?
A.	At the start before I started, yes, I thought I was up for the job, but then obviously at the end of it there is a lot more to it than I -- than I know.”

35.He was asked about the information he provided in respect of the evidence of the applicant and defence witnesses, the speeches of counsel and the summing-up.  He said that he felt he was able to understand the applicant and translate his answers, and that had he not understood a question he would have asked for it to be repeated.  He said no one ever told him his interpretation was lacking. 

36.He was then asked about his translation of the defence witness, Mr Rowton, and the speeches of counsel. He testified as follows:

“Q.	Did you have any -- is it right you were able -- you had -- you were able to do -- you were able to translate Mr Rowton’s evidence?
A.	Yes, I thought I was able to translate most of what he had said, yes.
Q.	There then followed speeches from counsel, like Mr Arthur made a speech. Were you able to translate his speech into Tongan?
A.	Most of it, I think.
Q.	And then what...
A.	You see what -- the thing is, like, when I translated, I could pick out in that sentence -- I can’t -- I struggled to translate it word for word, so I have to say the sentence or get the most important parts of the sentence and structure it into Tongan.
Q.	So, at the very least, you’d have got the gist across?
A.	Yes, yes, from -- that’s -- that was my intention, yes, to get the gist of it and give him the best interpretation that I could.
Q.	Yes. And was it the same when I made my speech?
A.	Yes, yes, I tried to get the gist of it and the best that I could do with it, yes.
Q.	Now, for the summing-up, is what you’re saying that for your -- perhaps, your inexperience, you found it difficult -- is it you found it difficult to keep up with the interpretation?
A.	Yes, yes, that’s correct.
Q.	But, nonetheless, were you able to get the gist of what the judge was saying?
A.	Most of it until those parts of law came in and then I think there were some of the parts of law that I didn’t understand from the English language to the exact or the Tongan words, so to speak.
Q.	Right. So, for legal terms, you may have had difficulty?
A.	For legal terms, I find it difficult, yes.”

37.The issue of Mr Afu’s ability to interpret legal terms and phraseology was pursued by Mr McCoy in re-examination.  Mr Afu explained his ability as follows:

“Q.	You mentioned about court expressions being difficult. Did you understand the expression ‘I put to you’? Does that mean -- did that mean anything to you as an interpreter?
A.	In the English language, I understand it. I understand what it means, but then to translate it into Tongan, I find it a bit difficult.
Q.	In what way?
A.	Just getting the sentence structure of it for -- for the person to understand and so -- to understand. ‘I put to you’ for me, obviously, I understand it, but for me to say it into Tongan to have Mr Alipate understand it is a bit -- I wouldn’t be able to. I don’t think I would be able to -- how do I say it -- structure it in a way that it would be understand -- understood for him, ‘I put to you,’ if you understand what I mean.
Q.	How do you say the word -- English word, ‘inference’? How do you say that in Tongan?
A.	Inference, I struggle to actually know that word in English first and then I had to actually Google it to understand it and then, I guess, ‘inference’ in Tongan, yes, I’d have to, kind of, what’s the word, explain it out, if you know what I mean.
Q.	Well, did you know what it meant at the time?
A.	No, I didn’t know at the time. At the time, no, at first, but then I Googled the actual word and actually understood what the word ‘inference’ meant.
Q.	And could you put it into Tongan?
A.	I haven’t used it. I haven’t used it since. No, no, I wouldn’t be able to.
Q.	Can you say it in Tongan now? Can you say it in Tongan now?
A.	No.”

Discussion

38.In the unusual circumstances of the present case the first question to be decided is whether the applicant was in fact in need of an interpreter.

39.Mr Marray made much of the fact that up until he had started to testify in his defence the applicant did not appear to have encountered any difficulty in understanding the proceedings.  He had communicated with his legal representatives in English, he had personally conducted a bail application in English and had expressly communicated to the court, through his lawyers, that he had no need for an interpreter.

40.Understandably, Mr Marray was sceptical of this sudden about turn of events so late in the trial.  However, the difficulties that were being experienced by the applicant in understanding the questions of his counsel were not just detected by his counsel but also by the judge.  In response to a request by Mr Michael Arthur, the applicant’s trial counsel, for the judge’s leave for his instructing solicitor to speak to the applicant even though he had commenced giving evidence in his defence, the judge commented as follows:

“COURT: Okay, thank you. Mr Arthur, I am in agreement about the observations concerning his English since I do try to take verbatim notes and at times it was difficult, not because of the speed but because of the use of language. I do not think that it is something made up by – by the defence team. First of all, I find that’s the case and, secondly, I think it is only fair that the defendant should be consulted and instruction taken by Mr Morley as to how he thinks or how he feels about the situation, whether he feels that he found it difficult giving evidence in court in English, because we saw the expert and he is from Oxford. He graduated from Oxford and he had difficulty giving evidence in English.

MR ARTHUR: Mm.

COURT: So it’s a real difficulty and it’s a real risk that if the defendant is not properly expressing himself then he may not be having a fair trial or he may not eventually be regarded as having a fair trial.”

41.The legal principles relevant to the court’s determination of whether a defendant should be provided with interpretation services were discussed in Abdula. At [45] of the judgment McGrath J said:

“45  It is not in dispute that the appellant needed, and was entitled to, interpretive assistance. The threshold for need is not an onerous one. As a general rule, an interpreter should be appointed where an accused requests the services of an interpreter and the judge considers the request justified, or where it becomes apparent to the judge that an accused is having difficulty with the English language. Once an accused has asked for assistance, it ought not to be refused unless the request is not made in good faith or the assistance is otherwise plainly unnecessary.”[6]

42.Here, the applicant, through his counsel, asserted a need for interpretation assistance and his counsel and the judge both recognised and accepted that the need was genuine.  Indeed, the judge made a specific finding to that effect, and there is no basis for us to say that he erred in so doing.  In those circumstances, we were satisfied that in respect of this applicant the threshold for need was met. 

43.The source of a defendant’s right to interpretation facilities as enshrined in a human rights instrument can be found in Article11(2)(a) and (f) of the Hong Kong Bill of Rights[7] which provide as follows:

“(2)  In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:-

(a)  to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

…

(f)  to have the free assistance of an interpreter if he cannot understand or speak the language in court; …”

44.It is through Article 11 that the entitlement to interpretation facilities becomes a component of the Article 10 right to a fair trial. 

45.However, the common law always recognised a defendant’s right to interpretation facilities and that it was an essential component of his right to a fair trial.  The basis of the right, as an incident of his right to be present at his trial, was explained by Lord Jauncey of Tullichettle in giving the judgment of the Judicial Committee of the Privy Council in Kunnath v The State[8]. He said:

“ It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the defendant: Lawrence v. The King [1933] A.C. 699, 708, per Lord Atkin. As their Lordships have already recorded, the basis of this principle is not simply that there should be corporeal presence but that the defendant, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and, if so, upon what matters relevant to the case against him: Rex v. Kwok Leung [1909] 4 H.K.L.R. 161 , 173–174, per Gompertz J., and Rex v. Lee Kun [1916] 1 K.B. 337, 341, per Lord Reading C.J. A defendant who has not understood the conduct of proceedings against him cannot, in the absence of express consent, be said to have had a fair trial.”

46.Now the common law right is given a higher constitutional status in Hong Kong’s law.  This is because the provisions of Article 11(2)(a) and (f) are comparable to Article 14(3)(a) and (f) of the International Covenant on Civil and Political Rights which applies to Hong Kong by Article 39 of the Basic Law.

47.In terms of human rights law there are two key decisions on provisions similar to Article 11(2)(f) of Hong Kong’s Bill of Rights.  They are the judgments of Lamer CJ, in giving the judgment of the Canadian Supreme Court in Tran and of McGrath J, in giving the judgment of the New Zealand Supreme Court in Abdula. It is clear that the judgment of McGrath J is heavily influenced by the judgment of Lamer CJ and adopts a similar approach to many of the issues arising from a consideration of the Article 11(2)(f) right.  In Tran, the Canadian Supreme Court was called upon to consider the right to interpretation as enshrined in section 14 of the Canadian Charter of Rights and Freedoms.[9] In Abdula, the New Zealand Supreme Court was considering the same right in section 24(g) of the New Zealand Bill of Rights Act 1990.[10]

48.In Tran, Lamer CJ discussed the purposes served by the right to interpretation and reached the following conclusions at pages 977 and 978:

“(iv) Conclusions on the Purposes Served by Section 14

The right of an accused who does not understand or speak the language of the proceedings to obtain the assistance of an interpreter serves several important purposes. First and foremost, the right ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it. Second, the right is one which is intimately related to our basic notions of justice, including the appearance of fairness.[11] As such, the right to interpreter assistance touches on the very integrity of the administration of criminal justice in this country. Third, the right is one which is intimately related to our society’s claim to be multicultural, expressed in part through s. 27 of the Charter. The magnitude of these interests which are protected by the right to interpreter assistance favours a purposive and liberal interpretation of the right under s. 14 of the Charter, and a principled application of the right.

Importantly, the underlying principle behind all of the interests protected by the right to interpreter assistance under s.14 is that of linguistic understanding. The centrality of this principle is evident not only from the general jurisprudence dealing with interpreters, but also more directly from the language of s.14 itself, which refers to ‘not understand[ing] or speak[ing] the language in which the proceedings are conducted.’ The level of understanding protected by s.14 will, therefore, necessarily be high. Indeed, it has been suggested that a party must have the same basic opportunity to understand and be understood as if he or she were conversant in the language of the court.”

49.It can be seen that there are a number of important benefits provided by this human right, ranging from societal benefits of preserving the fairness of the criminal justice process and promoting multiculturalism, to the more functional forensic benefits directly related to the actual criminal justice process.  It is with these functional forensic benefits that we are concerned in the present appeal.

50.The functional forensic benefits are focused on ensuring that a defendant is not disadvantaged by his inability to understand and speak the language of the court.  Thus, the interpretation must be of a standard which ensures the defendant can understand what is taking place in court.  But this is not merely so that he suffers no linguistic disadvantage whilst his trial takes place; rather, it is so that his right to defend himself is not in any way prejudiced by his linguistic disadvantage.  We see this adverted to by Lord Jauncey in Kunnath when he emphasised the importance of the defendant no just being present in court but also of being able to make decisions about the conduct of his trial.  Lamer CJ in Tran described it as ensuring that a defendant has a full opportunity to answer the charge.  Thus, the right serves a purpose beyond the mere linguistic measure of translation.  This higher purpose of placing the defendant in the position where he is able to meaningfully participate in his trial explains why the right is a component of a defendant’s right to a fair trial. 

51.For a defendant to meaningfully participate in his trial, he must have knowledge of what is occurring in court so that he can discuss it with his legal representatives, receive their advice in respect of it, make decisions on trial issues and give instructions to his legal representatives on such issues.  It is only through knowledge of what is happening in court that he will be able to discuss with his legal representatives possible lines of cross-examination and trial strategy and tactics, what witnesses can be called and whether to give evidence; in short, to be in the position where he will be able to discuss with those representing him how to defend himself at his trial without in any way being disadvantaged from doing so by reason of having suffered any prejudice in the course of the trial arising from his inability to understand or speak the language of the court.

52.The purpose of the right, in our view, informs its scope.  Part of Mr Marray’s submission suggests that a defendant can still have a fair trial even if the summing-up, or a substantial part of it, is not translated to the defendant. Thus, in determining whether there has been a breach of the right to a fair trial regard can be had to the fact that the judge’s summing-up is primarily an address for the benefit of the jury.  He relied on what was said by the English Court of Appeal in Gjejlal Recica which involved an assertion that the failure of interpretation constituted a violation of Article 6(3)(e) of the European Convention on Human Rights.[12] However, this case had a somewhat unusual factual background in that the trial judge had handed to counsel prior to his summing-up a substantial document which contained not only his proposed legal directions but also “quite a good deal of factual material anticipating in summary form some aspects of what the Recorder would say in greater detail when he came to deal with the evidence.  So this was a substantial section of the summing-up.”[13]  It is clear that the English Court of Appeal was not in any way devaluing the importance of the summing-up or suggesting that a defendant did not have a right to have the summing-up interpreted to him.

53.That, of course, is not to say that when determining whether a breach of the right to a fair trial has taken place regard should not be had to what it is that has not been translated.  But the fact that it is only a part of the summing-up, or is only a direction on the law or is only a speech by counsel does not mean that, by reason of that fact alone, there cannot be a breach of the Article 11(2)(f) right.  It will of course depend upon the particular circumstances of the case.  The Article 11(2)(f) right extends to and encompasses all elements of the trial which affect the defendant’s interests.  But, that is a quite separate issue from whether any failing in the interpretative process has resulted in an unfair trial.[14]

54.Having identified the purpose and scope of the right it is then necessary to determine whether a breach took place in respect of this applicant.  But, before doing so, we should remind ourselves of the difficulties and limitations inherent in the interpretation process, as was done by McGrath J in his judgment in Abdula where at [40] and [41], he said:

“[40]  Prior to considering whether the interpretation in this case met the Bill of Rights Act standard, it is helpful to consider the nature of interpretation during a trial. Interpretation is concerned with conveying the sense of spoken language and the information and ideas it incorporates into another language. At times this involves explaining the meaning of words used. A literal word for word rendering in the target language will be inappropriate where exact lexical correspondence is inapt to convey the meaning that was intended in the source language. Interpretation during a trial is a spontaneous process which allows the interpreter minimal opportunity for reflection. It can be contrasted in this respect with translation from one written text into another. Interpretation, in brief, is not a mechanical exercise. An interpreter at a court or tribunal hearing should, however, always convey, as accurately as the target language permits, the idea or concepts expressed in the words that are being interpreted.

[41]  It follows from the nature of the task that even the highest quality of trial interpretation cannot achieve perfection in conveying the information and ideas into the language of the court and vice versa. As the Supreme Court of Canada said in Tran:

‘... it is important to keep in mind that interpretation is an inherently human endeavour which often takes place in less than ideal circumstances. Therefore, it would not be realistic or sensible to require even a constitutionally guaranteed standard of interpretation to be one of perfection.’”

55.In Hong Kong, there has only been one occasion when the Court of Final Appeal has had to address the issue of interpretation.  In HKSAR v Chan Ka Chun[15], Fok PJ, in giving a judgment with which the other members of the court agreed, said:

“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.”

56.From this short passage it is clear that the court recognized the difficulties associated with the translation process. Whilst accepting that it is important that the translation is true and accurate, the court was alert to the fact that it may be difficult to perfectly convey what is meant by the words of one language into the words of another language

57.Also, when it comes to assessing the standard of the interpretation service provided and determining whether it led to an unfair trial we must not lose sight of the very important principle that a fair trial is not a perfect trial and a court will adopt a practical view of the circumstances when adjudging the merits of a claim that a breach of the fair trial right took place.  This point was made by Zervos JA in the context of the Article 11(2)(f) right component of the fair trial right, when giving the judgment of the court of Appeal in HKSAR v Saeed Ur Rehman[16]. At [40] of the judgment, he said:

“40.  How ‘fairness’ is judged in such circumstances was explained by Ribeiro PJ in HKSAR v Lee Ming Tee, when addressing the question of fairness in the context of a permanent stay of criminal proceedings, at p.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.’”

58.Notwithstanding that the constitutional standard for interpretation is not one of perfection, and notwithstanding that the courts will adopt a pragmatic approach when adjudicating on a claim of a breach of the fair trial right, the court cannot allow the standard of interpretation to fall below a level where the right is so deprived of substance that it becomes illusory. 

59.In Tran, Lamer CJ summarized his position on the standard necessary to be constitutionally compliant, saying at page 990:

“Given the underlying importance of the interests being protected by the right to interpreter assistance, the constitutionally guaranteed standard of interpretation must be high and allowable departures from that standard limited. In assessing whether there has been a sufficient departure from the standard to satisfy the second stage of inquiry under s.14, the principle which informs the right - namely, that of linguistic understanding - should be kept in mind. In other words, the question should always be whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in court.”

60.The approach to determining whether there has been such a deficiency in the level of interpretation so as to constitute a breach of the Article 11(2)(f) right was explained by McGrath J in Abdula at [42] and [43] of his judgment:

“42.  The authorities clearly establish that deficiencies in interpretation at a criminal trial may or may not give rise to a breach of the rights of a person charged at common law and under the Bill of Rights Act. In New Zealand, the focus must be on the right to the assistance of an interpreter under s 24(g), and the right to be present at the trial and present a defence under s 25(a) and (e) of the Bill of Rights Act. The common law illuminates the content and scope of those rights. The standard that must be attained for interpretation to be adequate in New Zealand is one which complies with those rights.

43.  That standard must reflect the accused person’s entitlement to full contemporaneous knowledge of what is happening at the trial. Interpretation will not be compliant if, as a result of its poor quality, an accused is unable sufficiently to understand the trial process or any part of the trial that affects the accused’s interests, to the extent that there was a real risk of an impediment to the conduct of the defence. This approach maintains and demonstrates the fairness of the criminal justice process which is necessary if it is to be respected and trusted in our increasingly multicultural community. Trial judges should at all times be alert to the quality of interpretation; certain omissions and irregularities may thereby be sufficiently avoided or mitigated. Where compliance is challenged, the cumulative effect of deficiencies in the interpretation must be evaluated, in the overall context of the trial, to determine whether its standard was, nevertheless, such that there was compliance with the accused’s rights. That is a matter for judicial assessment in every case.”  

61.With the assistance provided by the Abdula and Tran decisions we shall now turn to the circumstances of this applicant to determine whether what he received was a non-compliant standard of interpretation.

62.Mr Marray contended that it must be accepted, and this cannot be denied, that the applicant does possess considerable knowledge of English.  He argued that when this is supplemented by the assistance provided by the interpreter, the applicant would have had sufficient understanding of what was being said.

63.We do not accept this submission as it fails to have regard to the very important contextual element that what was taking place was a simultaneous translation.  It would have more force if there was a delay between what was being said and what was being translated, that is, if there had been consecutive translation.  But there was not.  In Hong Kong, for dockside interpretation, the person speaking, be that person, witness, counsel or judge, does not wait for what he says to be translated to the applicant before continuing.  In these circumstances, the applicant would have been listening to the interpreter and not to the person speaking and we are in no doubt would not have been in a position to absorb, simultaneously, what both were saying in different languages.

64.When an interpreter says that he was only able to interpret 20-30% of what had been spoken and was unfamiliar with key words and phrases which were frequently being used in the course of the proceedings, then we were compelled to conclude that the applicant had not been provided with a constitutionally compliant standard of interpretation, ie one that met the purposes of the Article 11(2)(f) right.

65.Mr Marray relied on Mr Afu’s evidence that he sought to translate at least the gist of what was said.  But that raises the question of what it was that was left out, and whether if any of what was left out was crucial to the applicant’s interests.  A feature of our courtroom recording system, known by the acronym DARTS, is that no recording is made of the dockside interpretation unless the interpreter’s voice is picked up by the microphone inside the dock.  The operation of the system was explained by a representative of the Judiciary Administrator in a letter to the applicant’s solicitors.  This person, who did not give oral evidence, said in the letter:

“10.  All accused persons in a criminal case are entitled to know everything that is said in court. The PTIs[17] are required to stand/sit beside the defendant at the dockside and translate to him whenever there is conversation between the presiding judge and counsel or between the presiding judge or counsel and a witness or any third party. The voice level of the PTIs should be one such that it is completely audible to the person he/she is speaking to, but at the same time, not causing unnecessary interruption to the court proceedings. The audio data in the CD or DVD produced from the DARTS system was recorded in a special four-channel format, covering namely (i) judge’s breach and court clerk’s bench, (ii) witness box, defendant dock and jury bench, (iii) counsel bench for defence and (iv) counsel bench for prosecution/plaintiff, which requires a software to play with. When the defendant in the defendant dock and the PTI stand close to the defendant dock’s microphone and speak loud into the microphone, their voices may be captured and be recorded by the DARTS system into the same channel of the recordings as shared with the witness box and the jury bench.”

66.Clearly, whether a record of the dockside interpretation is made will depend upon a number of variables, the primary ones being the proximity of the interpreter to the microphone and whether the interpreter is speaking at a sufficiently loud volume.  In the present case there is no record of the dockside interpretation and so we cannot determine the significance of what was omitted.  All that we have is the evidence of Mr Afu that he was only able to interpret 20-30% of what was said and settled on trying to convey, as best as he could, the gist of what was said.  He is, of course, not in a position to say what he had or had not translated was crucial to the applicant's interest.

67.This was not a case of nitpicking by focusing on the mistranslation of particular words on infrequent and isolated occasions.  Nor was it a case where linguistic difficulties that are an inherent part of the English and Tongan languages prevented an accurate interpretation. 

68.In the present case, the difficulties lay not with the language, but with the linguist.  All of this was obvious from the very frank and clearly genuine way in which Mr Afu portrayed his efforts in providing a service which, he was the very first to admit, was beyond him.  He openly acknowledged that he had never performed the risk of an interpreter prior to this occasion and only agreed to do it because no one else was available.

69.The consequence was a fundamental failure in the provision of the interpretation facility.  We were in no doubt that there had been a breach of the Article 11(2)(f) right on a grand scale and that the applicant had not received a constitutionally compliant standard of interpretation service and consequently had not received a fair trial.

70.None of what we have said is to be taken as a criticism of Mr Afu’s integrity and honesty.  In his evidence, he presented as a wholly genuine and truthful witness and we are grateful for the frankness with which he testified.

71.It is apparent from what Mr Afu said that he was conscious of his limitations but he believed that he was all that was available and that should he not agree to interpret then he would only prolong the period of the applicant’s incarceration pending his trial. One can well understand why, in these circumstances, Mr Afu should decide to “soldier on” and do his best to assist a fellow Tongan notwithstanding that as the trial continued he became increasingly concerned at his limited skills as an interpreter.  However, “doing one’s best” will not necessarily be sufficient for the purpose of delivering what the law promises and demands – a fair trial. 

72.Before concluding this judgment we should emphasize that even though we allow this appeal on Grounds 2 and 3, we do not accept the assertion that the judge spoke at too rapid a pace.  It was, of course, too rapid for Mr Afu but that was only because Mr Afu was not a professional interpreter and lacked the skills needed to provide a simultaneous interpretation.  Although the judge was aware that Mr Afu was experiencing difficulties, it was not brought home to him the extent of those difficulties or the reason for it; namely the very significant limitations on Mr Afu’s skills as a simultaneous interpreter.  

Disposition

73.For these reasons, we allowed the appeal, quashed the conviction and set aside the sentence.  We were satisfied that it was in the interests of justice to order a retrial and we ordered accordingly.  We further directed that a fresh indictment be filed within 14 days and that the retrial be expedited. 

Mr John Marray and Mr Andrew Cheng SPP, of the Department of Justice, for the respondent

Mr G McCoy SC, Ms Nisha Mohamed and Mr Adrian Lo, instructed by Morley Chow Seto, assigned by DLA, for the applicant