Case Document

100%Judiciary

CACC 232/2015

[2018] HKCA 380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 232 OF 2015

(ON APPEAL FROM HCCC 278 OF 2014 & HCCC 150/2015)

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BETWEEN
	HKSAR	Respondent
and
	MAHMOOD ARSHAD	3^rd Applicant (D5)

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Before:

Hon McWalters JA in Chambers (Not open to public)

Dates of Hearing:	20 April, 21 May and 22 June 2018
Date of Decision:	9 July 2018

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D E C I S I O N

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1.The applicant was charged with four others with the offence of forcible detention of a person with intent to procure a ransom for his liberation, contrary to section 42 of the Offences Against the Person Ordinance, Cap 212 (“kidnapping”). He and his co-accuseds were all convicted of this count. The applicant was sentenced to 15 years’ imprisonment.

2.The applicant subsequently filed a Notice of Application for Leave to Appeal against his conviction (Form XI). After having been refused legal aid for his appeal he applied to the High Court to be granted an appeal aid certificate, pursuant to Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221D, so that he can have legal representation at the hearing of his appeal.

3.At the hearing of his application on 22 June 2018 I reserved my decision which I said I would hand down at a later date.

The Trial

4.The indictment contained five accuseds but D1 and D2 did not appear for their trial and were tried and convicted in absentia. The only accused to give evidence was the applicant who was represented by Mr John Marray. In his evidence the applicantdenied involvement in the kidnapping but implicated D3 and D4. D3 was represented by Mr Kamlesh Arjan Sadhwani and D4 by Mrs Mahinder Panesar.

The grounds of appeal

5.As the applicant is not currently legally represented he has not filed any Perfected Grounds of Appeal. His complaints against his conviction are as set out in his Form XI and letters dated 24 April 2017, 12 June 2018, 14 June 2018, an undated 17 page submission that he wrote to the High Court and his oral submissions to me at the hearing of his application. His complaints can be summarised as follows:

(1)   There was misuse of his criminal record, both in cross-examination and final submissions by Mrs Panesar, as a result of his criminal record being factually wrong.

(2)   There was insufficient opportunity for him to instruct his counsel before trial.

(3)   The summing-up by the judge was unbalanced in that she influenced the jury to disbelieve the applicant’s evidence.

(4)   There was misuse of certain “Yes” answers that the applicantgave to questions as to his character when he was not indicating agreement with the propositions contained in the questions. The judge did not address this with the consequence that the jury would have been uncertain of the applicant’s evidence.

(5)   There was unfair cross-examination of the applicantby Mrs Panesar on the use of another person’s wallet which the applicant picked up in Wanchai which confused the judge and led her into erroneously indicating agreement with Mrs Panesar.

(6)   In her summing-up the judge erred in stating the dates on which, according to the applicant’s evidence, certain events happened and this affected the jury’s view of the applicant’s evidence.

(7)   There was an erroneous direction to the jury on the use they could make of the applicant’s criminal record.

(8)   There was an unfair direction to the jury in respect of the publicity surrounding the kidnapping resulting in an unbalanced direction.

(9)   The use by the judge of the prosecutor’s robbery example when explaining joint enterprise gave the jury the impression that the judge favoured the prosecution.

(10)   There was incorrect interpretation of parts of the applicant’s evidence at pages 3L-P, 8G, 32S-T, 33G-J, 34E-O, 36Q, 54Q-R, 57P-Q, 57U-V, 59N-Q and 69J-L.

Discussion

6.I have considered all of the complaints and do not find that any of them could form the basis of a reasonably arguable ground of appeal. I shall briefly explain why I have reached that conclusion in respect of each complaint:

(1)   The misuse of the applicant’s criminal record is predicated on the basis that the criminal record is, in fact, wrong. The criminal record contains, in Item 1, a reference to two offences of using another person’s identity card. These convictions took place at Kwun Tong Magistracy on 2 April 2009. The applicant maintains that there was a conviction for only one offence of using an identity card relating to another person. The original court documents are no longer available but Mr Daryanani, for the respondent, has been able to produce documents generated by the police computer system, including the Magistracy Charge Sheet, which support the accuracy of the criminal record. The Correctional Services Department record does likewise in that the department’s documentation indicates that it received the applicant into its custody to serve a total sentence of 12 months’ imprisonment which was composed of two sentences for separate offences of using an identity card relating to another person. In my view there is no reasonable prospect of the applicant being able to prove that his criminal record contains a factual error as to the number of offences for which he was convicted in 2009.

(2)   Nothing the applicant wrote about having had insufficient opportunity to instruct counsel before trial could impact adversely on the fairness of his trial. His counsel is a very experienced criminal practitioner and it is quite apparent from his examination of the applicant that he had a good grasp of the applicant’s case.

(3)   The complaint that the judge’s summing-up in respect of the applicant’s evidence was unbalanced has no merit. The judge’s comments have to be placed in the context of the case. An important contextual element was that the applicant was advancing a cut throat defence and the judge’s comments had to take account not just of the interests of the applicant but of other defendants affected by his testimony.

(4)   The complaint of misuse of the applicant’s answers to questions as to his character when he answered “Yes”, but was not indicating agreement with the propositions contained in the questions, has no merit. The explanations of the applicant as to what he meant by his “Yes” answers were obtained from him by Mr Marray in his re-examination of the applicant. The applicant’s explanations were before the jury whose task was to have regard to them when determining whether to believe the applicant. No specific direction was required by the judge.

(5)   The complaint that Mrs Panesar unfairly cross-examined the applicanton the use of another person’s wallet which the applicant picked up in Wanchai also has no merit. The applicant’s complaint arose from Mrs Panesar erroneously thinking that the applicant’s answer to her question concerned an incident in 2014 whereas the applicant was referring to the 2009 incident. The judge did not indicate agreement with Mrs Panesar and the applicant subsequently explained that he and Mrs Panesar were at cross-purposes.

(6)   In respect of the judge’s alleged errors in stating the dates on which, according to D5’s evidence, certain events happened, I find no merit in this complaint. I have checked what the judge said against the evidence of the applicant and there is no error by the judge. In any event, even if there had been a mistake in these dates, the events concerned all took place before the kidnapping and the dates for the events would not have been of any significance.

(7)   There is nothing erroneous in the direction the judge gave to the jury on the use they could make of the applicant’s criminal record.

(8)   There is nothing unfair in the direction the judge gave to the jury in respect of the publicity surrounding the kidnapping.

(9)   There was nothing improper or unfair in the use by the judge of the prosecutor’s robbery example when explaining joint enterprise to the jury. Her direction would not have given the impression that she favoured the prosecution.

(10)   In respect of the complaint that there was incorrect interpretation of parts of the applicant’s evidence, I have examined all the parts of the transcript of which the applicant complains and had regard to what the interpreter has said in respect of them. On many occasions there is, in fact, no error in the translation. Where there is an error the difference in translation is usually insignificant.

Recently the Court of Final Appeal had to address the consequences of mistranslated evidence. Fok PJ in giving a judgment in HKSAR v Chan Ka Chun[1] with which the other members of the court agreed, said at paragraph 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.”

Having considered the nature and context of these mistranslations and their importance to the issues in this case, I am of the view that there is no error in translation of such a magnitude as would impact adversely on the jury’s assessment of the applicant’s evidence or on the fairness of his trial generally.