HKSAR v. Chan Hon Wing

CACC 200/2016

[2021] HKCA 195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 200 OF 2016

(ON APPEAL FROM HCCC NO 210 OF 2015)

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Before:  Hon Poon CJHC, Macrae VP and Zervos JA in Court

Dates of Written Submissions:  30 November 2020 (Applicant); 21 December 2020 (Respondent)

Date of Judgment:  24 February 2021

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.The applicant applies, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, for a Certificate certifying that two questions of law of great and general importance are involved in the Judgement of this Court handed down on 16 November 2020 (“the Judgment”). The parties have agreed that this application may be dealt with by way of paper disposal only.

2.The two questions of law put forward by Mr Cheung, on behalf of the applicant, are as follows:

(1)  Does the trial judge have any power to allow some jurors to choose to listen to the simultaneous Cantonese interpretation by the court interpreter of counsel’s closing speeches and the trial judge’s summing up instead of listening direct(ly) to the original English speeches? (“Question 1”)

(2)  If the trial judge does have such a power, is it a proper exercise of his/her discretion to do so given that the judiciary concluded in 1996 after a series of mock trials that simultaneous interpretation should not be introduced in court proceedings because material mistakes made through simultaneous interpretation might go unnoticed and could result in a miscarriage of justice?  (“Question 2”)

3.Question 1 derives from the sole ground of appeal advanced at the hearing of the appeal before this Court, although the focus is now on the power of the court to allow jurors to listen to simultaneous interpretation rather than the irregularity of not having a dockside record of the translation in order to check the interpretation; an issue which was exhaustively dealt with and resolved in HKSAR v Gutierrez [2020] 2 HKLRD 720.

4.The argument as to the power of the judge to use either or both official languages, which now “possess equal status and … enjoy equality of use”, “in any proceedings or a part of any proceedings … as he thinks fit” has been addressed at paras 42-43 of the Judgment.  We do not propose to rehearse the arguments.  Given the wide ambit of the legislation, we do not regard the proposition that there is no power to allow the jury to listen to a simultaneous translation of the judge’s summing-up to be reasonably arguable.

5.Question 2 seems to be asking whether, if the judge does have a discretion to permit a simultaneous translation of speeches and summing‑up, the Judiciary’s conclusion in a feasibility study/report in 1996 that simultaneous interpretation was not an acceptable form of court interpretation should be factored into its exercise.  Like the respondent, we have difficulty in seeing how this proposition as framed translates into a point of law of great and general importance.  Be that as it may, the question of what is proper in the exercise of discretion must surely be case-specific and depend on a range of different factors.

6.It must be recognised, some 25 years on, that the quality of interpretation in the High Court today is of a very high standard indeed.  The Court had this to say in Gutierrez, after examining the experience of court interpretation in other jurisdictions, at [62]-[63]:

“62.  In considering the approach of other jurisdictions to the issue of interpretation, we should also make these points, which derive from our own experience in this jurisdiction.  Unlike the United Kingdom, Australia, New Zealand and Canada, but like Singapore, Hong Kong has, for obvious cultural and historical reasons, a long tradition of court interpretation.  It is not that many years ago that all cases in the criminal courts of this jurisdiction, from murder and rape in the High Court to hawking and littering in the magistrates’ courts, were dealt with in English through a court interpreter.  Whilst the number of cases dealt with in English has decreased, and those in Chinese correspondingly increased, throughout all tiers of the criminal court system, Hong Kong still has a highly developed and experienced interpretation section within the Judiciary Administration. Interpreters form an obviously vital component of a court system, where the English and Chinese languages have been declared, by virtue of section 3(1) of the Official Languages Ordinance, Cap 5 “to be the official languages of Hong Kong … for court proceedings”; which enjoy, according to section 3(2), “equal status” and “equality of use”.

63.  The quality of interpretation in our courts from Chinese into English and vice versa is exceptional and rightly regarded, particularly in the High Court and Court of Appeal, as of the highest quality by those judges and practitioners fluent in both languages. In our judgment, we must proceed on the assumption that a professionally appointed interpreter has accurately and faithfully interpreted whatever he or she is required to interpret unless a defendant or appellant can demonstrate otherwise.  It should be remembered that the more experienced an interpreter, as they will necessarily be in the High Court, the more familiar will the interpreter also be with the procedures, practices and language of the court, including the standard directions that are routinely given by judges to juries. We acknowledge that occasionally mistakes are made, but we are not prepared to presume any deficiency in interpretation unless it is properly established, and unless it can be demonstrated that the fairness of the trial has been thereby compromised.”

7.Later in its judgment, the Court made the point, at [79]:

“As with jurors taking oaths, we must proceed on the basis that the interpreter has been faithful to his or her oath until it can be demonstrated otherwise.”

8.The Court in the present case took particular pains to ensure that it was satisfied with the quality of the interpretation provided by what soon became clear was a highly competent, experienced and conscientious professional interpreter[1]. Detailed enquiries were made, in which Mr Cheung himself was invited to, and did, participate^[2] by posing relevant questions, of the interpreter, the answers to which were set out in the Judgment at [26] to [31].  The Court was satisfied that there was no scope for error in a case where the interpreter was both able and conscientious; where the summing-up was simple, straightforward and short[3]; where the issue was uncomplicated[4]; and where the applicant was unable to point to any misdirection in law by the trial judge[5]. Moreover, the arrangement put in place by the judge, at the instigation of the jury who wanted “to ensure there is no misunderstanding”[6], was ultimately undertaken with the approval of the applicant’s own counsel[7].

9.Since Question 2, assuming it is even a valid question, is case-specific, we do not consider that it raises a point of law of great and general importance; nor do we consider it to be reasonably arguable.

10.The application for a Certificate is refused.

Mr Ned Lai SADPP and Mr Andy Lo SPP, of the Department of Justice, for the Respondent

Mr Eric TM Cheung, solicitor advocate, of ONC Lawyers, assigned by the Director of Legal Aid, for the Applicant

[1]  The Judgment, at [46].

[2]  At a case management hearing before Macrae VP on 4 June 2020.

[3]  The Judgment, at [44].

[4]  The Judgment, at [59].

[5]  The Judgment, at [44] and [46].

[6]  The Judgment, at [15].

[7]  The Judgment, at [24].