HKSAR v. Ng Pak Lun

CAC C 153/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 153 OF 2010

(ON APPEAL FROM HCCC NO. 225 OF 2009)

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BETWEEN

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Before: Hon Stock VP, Hartmann JA and Lunn J in Court

Date of Hearing: 22 November 2011

Date of Judgment: 22 November 2011

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.On 22 April 2010, the applicant was convicted of the offence of murder by a majority verdict of a jury after trial before that jury and Line J. He now seeks leave to appeal the conviction.

2.The indictment alleged that he and others on 5 October 2008 murdered Poon Ka-yan.

3.On 2 October 2008 Poon was the subject of an attack in McDonald’s restaurant in Tin Shui Wai.  The CCTV tapes in that restaurant showed a group of nine young men attacking him.  As a result of that attack Poon died.

4.The prosecution case was that this applicant was the youth shown by the CCTV tapes to swing a heavy umbrella stand onto Poon who was then lying on the ground.

5.The applicant’s case at trial was that he took part in the attack but that he was not the male wielding the umbrella stand.  In relation to that assertion, the prosecution case was that the applicant was nonetheless guilty of murder because he can be seen on the CCTV tapes to have participated in the attack when he must have realised that at least one weapon was being used by another person to attack Poon whilst he was on the floor and that the jury could properly infer that he joined in the attack realising that there was a real risk that one of his fellow attackers intended to cause really serious bodily harm, a realisation on the applicant’s part sufficient to render him guilty of murder.

6.The problem that arises in this case is that of an unfortunate mistranslation or loose translation of a key question put by the trial judge to the applicant.  There is no issue as between counsel upon this application as to the nature and effect of the mistranslation.

7.The trial judge said to the applicant:

“You must have realised that there was a risk that Siu Fung [on the applicant’s case the prime assailant], in doing what he did, intended the victim some really serious bodily harm”.

Counsel on both sides have listened to the words used by the interpreter when the interpreter translated the question into Cantonese with the benefit of the applicant. What the interpreter said to be applicant in Cantonese translated back into English as follows:

“And actually you, at that time, that is, at the time of the incident, you must have known of the risk in this regard, which is that at the time of Siu Fung so doing, in this respect, [he] would have had the intention of being able to cause the victim, even if not that amounting to grievous bodily harm, that would still possibly cause some degree of harm, is that so?”

To which the applicant answered: “Yes.”

8.Shortly after, the judge put a similar suggestion to the applicant as follows:

“You must have realised at the time that there was a real risk that Siu Fung was attacking the deceased with the intent to cause grievous bodily harm or some really serious bodily harm.”

9.The question in fact put, in Cantonese, to the applicant by the interpreter ran as follows:

“You, at that time, must have known that there was some risk in this regard, that at the time Siu Fung attacked that victim, (he) had the intention to cause some grievous bodily harm or to some degree of bodily harm, is that so?”

The applicant replied: “Yes, I knew it.”

10.It follows that what in fact the applicant was agreeing was that he appreciated that Siu Fung intended at least some degree of bodily harm, which is, of course, an insufficient appreciation to render him liable to murder on the alternative scenario that it was Siu Fung who was the prime assailant.  This is particularly important in the light of his defence that although he intended to kick Poon a few times, the extent of the attack by his friends was, as it was put, “out of his expectation”, and so he stopped what he was doing.

11.The interpreter’s errors were, most unfortunately, not drawn to the judge’s attention.  The judge cannot therefore, for a moment, be criticised for saying to the jury:

“If you concluded that the applicant was male E [that is the man kicking, not wielding an umbrella stand], then you would ask yourself if it was proved that he participated in the joint enterprise to an attack that included the fatal blow, realising that one of the group was attacking with intent to cause really serious bodily harm. You know that the [applicant] in his evidence agreed that he realised at the time there was a real risk that Siu Fung was attacking the deceased with the intention of causing him some really serious bodily harm and kicked the deceased about four times thereafter.”

12.Then towards the end of the summing-up, the judge said this:

“The 2nd defendant, when the prosecution’s case was put to him finally, denied having an intention to kill. He denied having himself an intention to cause grievous bodily harm. The 2nd defendant was then asked, and this is really very important, and I am quoting the exact words, ‘You must have realised at the time there was a real risk that Siu Fung was attacking the deceased with the intention of causing him some really serious harm.’ The question was repeated. It was made abundantly clear to him that the question, even though it came from my mouth through the interpreter, was the suggestion of the prosecutor, and there could have been no doubt about that.

On both occasions, the 2nd defendant agreed with that suggestion, and he said that he knew it. …” (Summing-up pages 43Q to 44C).

13.It follows, as Mr William Tam for the respondent properly concedes, that there was a material irregularity at trial, an irregularity – no fault of the judge’s – that went to the heart of the defence.  The conviction is therefore unsafe and unsatisfactory.  No question arises of applying the proviso.

14.Accordingly, we grant the applicant leave to appeal against conviction, treat the hearing of the application as the appeal, allow the appeal and set aside the conviction.  There is an application by the respondent for a fresh trial which is not opposed, and accordingly, we order a fresh trial upon the same indictment and the applicant is in remanded in custody pending that trial. 

15.We would add that it is unfortunate that the error was not drawn to the judge’s attention by any of those in court conversant with Cantonese.  The result is a wasted trial and an avoidable waste of public funds.

Mr William Tam, DDPP III (Ag.) of the Department of Justice, for the Respondent

Mr Christopher Grounds, Mr Trevor Beel & Ms Adgie N.K. Chan, instructed by Messrs Li, Wong, Lam & W.I. Cheung, for the Applicant