HKSAR v. Ngai Hon Kwong

HCCC 78/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 78 OF 2016

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REASONS FOR REFUSAL OF CHINESE TRIAL

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1.There had been a series of hearings in relation to this case since 5 February 2016 when the Court of Appeal ordered that the defendant be retried for murder. Initially the defendant was to be retried before Andrew Chan J and a jury but after nine pre-trial review hearings, the case was relisted on 2 March 2017 and fixed before me and a jury for trial on 30 October 2017. The regrettable state of these proceedings is mainly due to the defendant acting in person, terminating the services of his legal representatives or prevaricating between accepting that the trial will be conducted in English with Chinese translation, and requesting that the trial be conducted in Chinese. There has also been a problem in securing the attendance of a key prosecution witness who is now residing in mainland China.

2.On 28 August 2017, Mr Robert Lee, SC and Mr Randy Shek, who were then acting for the defendant, applied for the retrial of the defendant on a single count of murder to be conducted in Chinese.  I refused the application.  Soon after my decision, the services of both counsel were terminated by the defendant.  Subsequently on 15 September 2017, the defendant renewed the application which he conducted in person.  On that occasion, I also refused the application.  Not deterred by these previous decisions, the defendant persisted in making the same application in a letter to the Court dated 20 September 2017.

3.Before setting out my reasons for refusing the application, I should set out a brief history of this case. 

4.The defendant was arrested and charged for the murder of the deceased which allegedly took place on 29 May 2013.  He was brought before the Magistrate’s Court, and on 17 January 2014, he was committed for trial for the offence of murder under section 80C(4) of the Magistrates Ordinance, Cap 227. 

5.An indictment was filed on 24 January 2014 with the Court of First Instance in accordance with section 24A of the Criminal Procedure Ordinance, Cap 221.  The indictment was amended on 26 August 2014.  He was arraigned on that indictment on the first day of trial on 15 October 2014 where he entered a plea of not guilty. 

6.After his trial before Deputy Judge Stuart-Moore and a jury on 28 October 2014, he was found guilty of murder by the jury.  The defendant appealed his conviction to the Court of Appeal. 

7.On 5 February 2016, the Court of Appeal allowed his appeal and quashed his conviction, and ordered that he be retried on a fresh indictment.[1] The Court also ordered that the case be listed before the listing judge for the fixing of trial dates within 28 days. 

8.On 16 February 2016, a fresh indictment was filed and on 2 March 2016, the retrial was fixed to commence on 28 October 2016 before Andrew Chan J and a jury.  There followed a series of pre-trial review hearings which resulted in the case eventually being relisted for trial on 2 March 2017 before this Court, fixed to commence on 30 October 2017 with a pre-trial review fixed for 7 April 2017. 

9.This Court was notified of a section 16 application at the pre-trial review on 7 April 2017 which I fixed for hearing together with directions as to the filing of written submissions by the parties.  A hearing of the application was conducted on 26 and 27 July 2017.  On 11 August 2017, I handed down my written judgment in which I refused the application.[2] 

10.On 21 August 2017, the case was set down for mention where a number of outstanding issues were discussed concerning the trial that was fixed to commence on 30 October 2017.  At this hearing, only Mr Shek appeared for the defendant.  He noted that the defendant complained that he wanted his trial to be conducted in Chinese because he was unable to follow the interpreter who had been provided.  However, he said that at that stage no application for the case to be conducted in Chinese was being made.  On this basis, arrangements were made for the previous prosecutor, Mr Michael Arthur, counsel on fiat, to prosecute the case and replace Mr Steven Kwan, counsel on fiat, who had been brought in when the case was to be conducted in Chinese.

11.As I have indicated, Mr Lee together with Mr Shek, on 28 August 2017, made an application for the October trial to be conducted in Chinese.  It effectively meant that the case would have to be relisted before a bilingual judge.  In short, Mr Lee argued that the defendant did not understand English and that the evidence at trial would be given in the Chinese language.  He further argued that the issues at trial were factual, with minor, if any, legal issues requiring resolution.  He acknowledged that the application if granted would cause delay because the trial would need to be re-fixed before a bilingual judge.

12.Mr Arthur for the prosecution opposed the application on the basis that it would cause a significant disruption to the proceedings. 

13.I refused the application because in my view, in light of the history of the case, any further disruption or delay in the proceedings was contrary to the interests of justice.  The previous trial had been conducted before a monolingual judge and no issue was taken at the time, and in fact during the course of the proceedings for the retrial there were occasions when the defendant had accepted that the case would be conducted in English with Chinese translation.

14.It should be noted that a judge or judicial officer has a discretion whether to use English or Chinese or both languages in proceedings, but always giving paramount consideration to the just and expeditious disposal of the proceedings.  Such decision of a judge or judicial officer is final.  See section 5 of the Official Languages Ordinance, Cap 5.  See also Use of Chinese in Court Proceedings Guidelines for Judges and Judicial Officers that have been issued to assist judges and judicial officers in making decisions in relation to the use of official languages in the courts.  In paragraph 1, it states that it must always be borne in mind that an accused, a litigant and a witness has the right to use whatever language or dialect he wishes in any court hearing with the assistance of interpretation service, if and when this is required.  Other factors and considerations are listed to guide a judge or judicial officer when exercising his discretion as to the use of official languages in the courts.  Having regard to the relevant statutory provisions and the guidelines as well as the facts and circumstances of the case, I refused the application.

15.Immediately following my decision, a notice of discharge of legal aid was filed with the Court dated 29 August 2017.  The defendant had terminated the services of Mr Lee and Mr Shek.

16.At a pre-trial hearing on 15 September 2017, the defendant confirmed that he had terminated the services of his legal representatives and that he would be conducting his trial in person.  He made an application that the trial be conducted in Chinese.  He gave three reasons. First, he did not understand English.  Secondly, the interpreter had made a lot of mistakes and he did not understand him, and this was important as he needed to respond to expert evidence that would be presented at trial.  Thirdly, he was representing himself and he could only do so in Chinese.  At this stage, the trial had been fixed for 15 days to commence on 30 October 2017.  I refused his application for the trial to be conducted in Chinese.

17.At the hearing, it was noted by Mr Arthur that as the defendant was now representing himself, the prosecution would need to present the evidence by way of strict proof and this involved a large number of witnesses that would most likely take 20 days or more.  The defendant was urged to reconsider his position and to obtain legal representation for his trial but he insisted that he would represent himself.  The trial dates were vacated.  A pre-trial review was re-fixed for 9:30 am on 29 March 2018 and trial dates were re-fixed to commence on 7 May 2018 with 20 days set aside.

18.The defendant has submitted letters dated 7 September and 20 September 2017 in which he confirmed that he would be representing himself and that he wished to apply for his trial to be conducted in Chinese.  For the reasons I have already given, and the decisions I have already made, the trial will proceed as listed before me and a jury to be conducted in English with Chinese translation. 

Mr Michael Arthur and Ms Jacqueline Lam, counsel on fiat, for HKSAR

Mr Robert Lee, SC, leading Mr Randy Shek, instructed by Tang, Wong & Chow, assigned by Director of Legal Aid, for the defendant