HKSAR v. Shahid

HCMA 168/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 168 OF 2013

(ON APPEAL FROM ESCC NO. 1828 OF 2012)

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BETWEEN

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JUDGMENT

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Introduction

1.On 24 September 2012 at Eastern Magistrates’ Courts the appellant was convicted on his own plea of two charges of communicating false information as to the existence of a bomb, contrary to sections 28(2) and 28(4) of the Public Order Ordinance, Cap 245, by Deputy Magistrate Mr A. Wyeth.

2.On 8 October 2012 the appellant was sentenced to 10 months’ imprisonment for each offence with the sentences ordered to be served concurrently with each other.

3.On 26 November 2012 the appellant wrote to the court wanting to appeal against his convictions.  On 6 December 2012 Tong J granted the appellant an extension of time in which to appeal.  On 19 December 2012 the appellant filed his notice of appeal.

4.At the hearing of the appeal I reserved my judgment and said I would hand it down at a later date.  This I now do.

The Offence

5.In order to understand the developments that occurred in the course of and subsequent to the hearing of the appeal it is necessary to have an understanding of the structure of the offence and of its elements.  Section 28(2) of the Public Order Ordinance, Cap 245 is part of a section headed “Bomb hoaxes” and provides as follows:

“Any person who communicates any information which he knows or believes to be false to another person with the intention of inducing him or any other person to believe that a bomb or other article, substance or thing liable to explode or ignite is present in any place or location whatever shall be guilty of an offence.”

6.This offence has an actus reus of communicating information that a bomb or other article, substance or thing liable to explode or ignite is present in any place or location.

7.The offence has a mens rea composed of two elements.  The first element is that when the defendant communicates the information he knows or believes it to be false.  The second element is that when he communicates the information to another person he has the intention of inducing that person, or any other person to believe that a bomb liable to explode is present in any place.

The Circumstances of the Offence

8.The offences took place over the space of 5 to 10 minutes commencing from around 1:35 p.m. on 16 May 2012.  At this time an inbound MTR train travelling on the Tsuen Wan line reached the Central Terminus and stopped at platform 2 to allow passengers to alight and, as it would be shortly travelling outbound from this platform, to allow new passengers to board.

9.The appellant was seen in the first compartment of the train and there were present a number of passengers in this compartment.  The appellant had a rectangular object taped to his left wrist with black electrical tape.  There also appeared to be a piece of grey coloured string attached to the object.  It was subsequently determined that the rectangular object was a mobile phone wrapped in black electrical tape.  The grey string that appeared to be attached to it was in fact the handle of a paper bag that the appellant was carrying. Inside this paper bag were, amongst other things, one paper cutter, two lighters, one pack of cigarettes and one cap.  The appellant was also carrying a plastic bag containing three bottles of distilled water.

10.Each of the charges relates to the appellant’s conduct on board the train and to his representations both by the words he spoke and his conduct generally as to what was strapped to his wrist.  The Amended Brief Facts set out the circumstances of the 1^st charge as follows.  The Mr Li referred to was the Captain of the train who had entered the compartment.

“… Soon afterwards, the Defendant shouted ‘Explosion!’ in an agitated state and a loud voice. He waived his hands and asked passengers in the Compartment to leave. Passengers complied and alighted the Train.

3. In the meantime, Mr. Li arrived at the Compartment and saw the Defendant standing inside it. The Defendant was repeatedly telling all passengers to leave the Train. After the last few passengers had alighted, Mr. Li and the Defendant were alone in the Compartment.

4. Mr. Li observed that the Defendant had a rectangular object taped to his left wrist with electrical tape in black. Also appeared to be attached to the object was a piece of string in grey colour. The Defendant pointed to the object, waved at Mr. Li and asked him to ‘keep away’. Suspecting that the object was dangerous, Mr. Li stepped outside the Train and reported the matter to the station control room.

5. The Defendant remained inside the Compartment and gained entry to the driver’s compartment.

6. In response to Mr. Li’s report, Mr. Chan Chu-kei Albert (PW3), Station Officer of Central Station, attended the Compartment for reinforcement. On his arrival, he saw the Defendant inside the driver’s compartment of the Train. At that time, he was making the call to the police 999 console, subject of 2^nd Charge. The Defendant ignored Mr. Chan’s requests for him to leave and said ‘Don’t push me!’.

7. Mr. Chan noticed the unknown object taped to the Defendant’s left wrist.  The Defendant, who was then smoking, placed a lighter near the object and gestured to ignite it.  Despite repeated demands, the Defendant refused to leave the Train.”

11.The second offence arose out of the 999 phone call that the appellant made to the police from the train driver’s cabin.  The relevant paragraph from the Amended Brief Facts describes the content of that phone call as follows:

“8. At around 1:40 p.m., the Defendant called the 999 console of the Police. He spoke in both English and Punti dialect. He told the console officer that he was in the MTR Central Station and that he was ‘with a bomb’. He said that he did not ‘like to hurt people’. He asked for ‘just only Police, no more CID’. When asked about his location, he said he was ‘inside the MTR in the driving seat’. The Defendant’s call lasted approximately 108 seconds.”

12.As soon as the police arrived, the appellant surrendered to them.  When all the items were examined it became quite clear that they did not contain explosives and none of the items were an explosive device.

The Hearing of the Appeal

13.At the hearing of his appeal the appellant discharged his counsel and indicated he wished to conduct his appeal himself.  He took this action because he felt he knew better than his counsel all the background to his case.  Here he was referring to his complaint that the police had previously failed to properly investigate an assault upon him.

14.After informing the appellant that his dissatisfaction with the police in their investigation of this other matter was not relevant to his appeal and after providing him with more time to discuss his case with his counsel he re-engaged Mr Wong who proceeded to make his submissions.

15.In the course of hearing the appeal I raised a concern I had about the 1^st charge.  There were two versions of the 1^st charge in the appeal bundle.  The first version has a line through it and written above it are the words “Amended 17/7/12”.  There is then another charge which has typed on it “Amended Charge” and which bears a stamped date of “17 Jul 2012”.  It is not clear why it was felt necessary to file an Amended Charge as there are only quite trivial differences between the two in terms of the particulars.  In the Amended Charge, the appellant is described as being of 37 years (in the original charge he was said to be 36 years) and in the original charge the statement of offence correctly contained a reference to the sentencing provision section 28(4) of the Public Order Ordinance, whilst in the Amended Charge this reference has been deleted.

16.However, there is one very important difference between the two charges in the pleading of the offence.  The original charge correctly pleaded the offence whilst the Amended Charge removed all reference to the second mens rea element of the offence i.e. “with the intention of inducing another to believe” etc.  Thus the Amended Charge read:

“… you did communicate information which you knew or believed to be false to other person to believe that a bomb or other article …”

17.I had hoped the DARTS recording system would provide a quick resolution of how the appellant had been arraigned but it transpired that the trial proceedings had been communicated to the appellant in the Punjabi language. The transcript of the court proceedings do not include the taking of the plea and merely record “Amended Charge 1 read: Defendant PG to Amended Charge 1”.  As the parties could not agree on what had taken place at trial I called for an English translation of the taking of the plea and adjourned the hearing of the appeal for that to be done.

18.The English translation of the arraignment is as follows:

“1 Interpreter: Shahid there is an allegation against you that on 16^th May 2012 on train the number of train was 38 Platform Number 2 M.T.R. in Central Station, in Central, in Hong Kong. In that your expressed/provided an information about, this thing that you knew that it was suspected that it is not true. Towards another person about that the thing was that, that there was a bomb or such a thing in it which can be exploded. Right/OK. And was present inside the train number 38, platform number 2 M.T.R. Central, Central Station.

2 Interpreter: Do you plea, “Guilty” (original in English) for this or “not guilty” (original in English)

* (cannot hear anything in reply)

3 Interpreter: Defendant Plea guilty to the charge. Amended Charge. The first charge sorry!

4 Interpreter: Second Charge allegation against you is that on 16^th May 2012 on train number 38 number 2 platform M.T.R. Central Station, Central, Hong Kong you expressed/provided an information by call. O.K. For that you knew or were suspicious that it was not true. OK. Which was (given to) the contact police officer whose name is Chung Pui Sung over the telephone and with intention to scare her. OK or to another person about the Bomb or anything like that which can be exploded. OK. And said that was present in train number 38, platform number 2 Central Station.

5 Interpreter: Do you plea “Guilty” (original in English)

* (cannot hear anything in rely clearly)

6  Interpreter: Guilty to the second charge as well.”

19.From this it is apparent that the appellant was only arraigned on and only pleaded guilty to the defective Amended Charge 1.  It is also apparent that the mens rea element in charge 2 of “with the intention of inducing her or any other person to believe that a bomb or other article, substance or thing liable to explode or ignite was present” was translated as “was given to the contact police officer … over the telephone and with intention to scare her or to another person about the bomb or anything like that which can be exploded”. Also, in respect of the 2^nd charge the words “or not guilty” was not put to the appellant and in respect of both charges the interpreter has employed the English words “guilty or not guilty” rather than translating them into the Punjabi language.

The Perfected Grounds of Appeal

20.There is only one ground of appeal and that is that the contents of the Amended Brief Facts on which the prosecution relied in support of the charges and which the appellant admitted in the course of his plea did not prove all the elements of the offence; specifically the element that the appellant communicated false information to a person “with the intention of inducing him or any other person to believe that a bomb or other article, substance or thing liable to explode or ignite is present in any place or location”.  It was argued in support of this ground of appeal that the facts which the appellant admitted failed to show that at the material time, the appellant had the subjective intention to induce others to believe that a bomb was present.

21.It was submitted that all that was revealed here was that the appellant was agitated and distressed and that his actions were akin to a cry for help. This was a reference to a number of personal matters advanced by counsel in mitigation at his trial.  One of these was that he had been seriously assaulted by a group of people and when the police investigated this incident his assailants made counter-allegations against him.  The end result was that no prosecution action was taken by the police.

22.However, as a result of what transpired at the hearing of the appeal and what subsequently became known about the arraignment the appellant filed a supplementary submission asserting that the pleas to both charges were nullities as the elements of the offence were either not put to the appellant (1^st charge) or not put correctly (2^nd charge).

The Respondent’s Submission

23.The respondent argues that as it was the clear intention of the appellant to plead guilty to the offence there would be no injustice to him were I to now amend the charge and convict the appellant of the Amended Charge.  In support of his submission he refers to a number of cases that deal with the power of an appellate court to amend an information, the circumstances in which it is proper to do so and the circumstances in which an appellate court would be justified, after making the necessary amendment, in substituting for the offence of which the appellant was convicted, a conviction for the amended offence.

24.In respect of the 2^nd charge the respondent says that allowance has to be made for the inexactitude of translation and that what was translated to the appellant sufficiently conveyed the elements of the offence to him.

Discussion

25.The right of appeal that was exercised by this appellant was the right granted by section 113(1) of the Magistrates Ordinance.  A person who has pleaded guilty is precluded by the terms of section 113(1) from availing himself of the power contained in the sub-section.  He can only invoke this power of appeal if he can show his plea should be regarded as a nullity.  The grounds on which a guilty plea will be treated as nullity were set out by the Court of Appeal in HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125.  The court expressed the legal principle that determines whether the plea should be treated as nullity at page 134J:

“… we do not think that any kind of mistake should be readily treated as a ground for nullifying a guilty plea. The mistake must be fundamental. In other words, the circumstances and the extent of the mistake must be sufficient to vitiate the intent of the defendant in pleading guilty, making the act of the plea not his true act.”

26.Amongst the grounds that the court went on to list as nullifying a plea were that the facts admitted by the defendant did not amount to the offence with which he was charged, the Admitted Facts were equivocal as to guilt and that the plea was tendered to a charge which was defective on its face or invalid or unclear.  The court did not consider the effect of mistranslation but I don’t believe that there can be any doubt that a sufficiently serious mistranslation could have the effect of making the act of the plea not a true act because what the defendant is admitting is not the offence with which he is charged.

The Original Ground of Appeal

27.The original complaint of the appellant was that the Amended Brief Facts were insufficient for the court to find that at the time he committed the offences, the appellant possessed the intent required by the offence provision.

28.True it is that the facts do not contain a statement that the appellant admits to having had the requisite intent.  But the role of the set of facts, however, it might be called, is not to prove the case against the appellant for his guilt is proven by his plea.  The role of the admitted facts is to provide the magistrate with sufficient information on the offence so as to enable him to appreciate its seriousness and so assist him to arrive at a proper sentence [1]. However, the content of the admitted facts or the defendant’s response to it may raise questions as to whether the offence is the correct one and whether the defendant’s plea is a truly unequivocal one.

29.In respect of these Amended Brief Facts is there anything in their content which would cause me to doubt that the appellant did not intend to admit the offence with which he was charged or that this offence was in some way inconsistent with the facts?  In answering this question it is perfectly legitimate to look at all of the facts even though the paragraphs of them have been separated to distinguish those that relate to the 1^st charge from those that relate to the 2^nd charge.  The appellant’s conduct covered a period of a little over 5 minutes and all that he did in that period of time is relevant to determining his mens rea.  What the court will look at is how he portrayed the circumstances to those around him by his words and conduct.  When the facts are looked at in this way it becomes quite clear that they are not inconsistent with any of the elements of the offence or that they raise any question mark in respect of the unequivocal nature of the appellant’s guilty plea.  There is no merit in this ground of appeal and if that were the only issue in respect of the charges, I would have dismissed the appeal.

Supplemental Submissions: Charge 1

30.The appellant’s submission is that this plea of guilty should be treated as a nullity because the charge as put to the appellant omitted a key ingredient of the offence.  Crucial to a consideration of this issue is a recognition that this appellant’s conviction is based upon his plea to the Particulars of Offence.  In the normal situation where an offence is properly pleaded, a plea of guilty is taken as an admission to every element of the offence.  No further proof is needed of the offender’s guilt for his admission, by his plea, constitutes that proof.  It is because the consequences of a guilty plea are so serious that a proper pleading of the charge is so important. On this matter the words of Brett JA in R v Aspinall & Ors (1876) 2 QB 48 at 56 bear repeating:

“Every pleading, civil or criminal, must contain allegations of the existence of all the facts necessary to support the charge or defence set up by such pleading. An indictment must, therefore, contain an allegation of every fact necessary to constitute the criminal charge preferred by it. As in order to make acts criminal they must always be done with a criminal mind, the existence of that criminality of mind must always be alleged. If, in order to support the charge, it is necessary to shew that certain acts have been committed, it is necessary to allege that those acts were in fact committed. If it is necessary to shew that those acts, when they are committed, were done with a particular intent, it is necessary to aver that intention.”

31.But of course on an arraignment a defendant does not plead to a written charge but to a charge that is orally communicated to him.  Consequently, it is not only important that the charge be properly pleaded but also that it is properly put to a defendant so that he has a clear understanding of what it is that he is admitting or denying.  This will not usually be a problem either because the language of the written charge and spoken charge are the same or, where they are different, the language of the spoken charge is one with which the court is familiar and so any anomaly in the interpretation is readily apparent.  The problems that arose in the present case arose precisely because the language of the written and spoken charges were different and there was no-one in court, other than the official interpreter, who was familiar with the language employed on the arraignment.

32.Here, in respect of the 1^st charge it is quite clear that the appellant never pleaded guilty to a properly pleaded offence; what he pleaded guilty to is what the law regards as a defective charge.  The failure to plead an essential element of the offence does not render the information a nullity but merely defective. [2] A defective information may be cured by amendment but because the defect in this information was not detected, no amendment was made.  As the charge did not plead an essential element of the offence the consequence is that the appellant did not admit, by his plea, that element of the offence.

33.In these circumstances there are only three alternatives.  They are:

(i)  treat the plea as a nullity and quash the conviction and sentence;

(ii)  amend the information on appeal and substitute a conviction of the Amended Charge for the defective charge; or

(iii)  amend the information on appeal and send the case back to the Magistrates Court for a new trial.

The starting point to a determination of what, if anything, I can and should do in response to this matter is to determine my powers on appeal.

34.Section 119(1)(d) of the Magistrates Ordinance vests me with all the powers of the magistrate, which includes, of course, the power to amend the information that is contained in section 27 of the Magistrates Ordinance.  It also empowers me to make such order in the appeal as I think just.  How an appeal court should use these powers was discussed by the Court of Appeal in Wong Man-shun v R [1980] HKLR 266 at 271.  It said, in response to an invitation by the Attorney General to amend an information by recourse to the section 27 power:

“We do not think that this is a course which we should adopt. Save in exceptional cases, we regard it as undesirable to amend a charge on an appeal, except in minor particulars, since this would deprive an accused person of the protection of section 27 of the Magistrates Ordinance, unless the matter were referred back to the magistrate for rehearing.”

35.Even greater reluctance to amend an information on appeal by recourse to the section 119(1)(d) general power “to make such other order in the matter as he thinks just”, was shown by the Court of Appeal in Fai Ma Trading Co. Ltd v L.S. Lai (Industry Officer) [1989] 1 HKLR 582.  In discussing whether a power to amend on appeal existed Kempster JA said he thought it did but that it should only be exercised by the appellate judge if he also directed that the amended information be heard de novo by a magistrate.  On this issue, Silke VP expressed himself strongly by saying at page 593:

“… the courts in England have firmly set their faces against an amendment by an appellate court. The reasoning is simple: if an appellate court were to amend, and by so doing uphold the conviction, then a defendant would stand convicted upon a charge or information on which he has not stood trial …”

Like Kempster JA, Penlington JA saw no reason why the appeal court could not use section 27 to amend as long as the Amended Charge was sent back for rehearing.  He said at page 595:

“Section 119(d) of the Magistrates Ordinance provides that the appeal judge “may exercise any power which the magistrate might have exercised’ and I do not see any reason why those plain words would not include the magistrates’ power to amend, as set out in s. 27 of the Magistrates Ordinance.  I am however also satisfied that if the judge decides to so amend a charge he may not then go ahead and dismiss the appeal, no matter how trifling the amendment.  Section 27 sets out very precisely what a magistrate must do after any amendment, such as giving the defendant the right to re-call any witness for further cross-examination if appropriate.  Clearly that is not a procedure which should be carried out in the appeal court, even if it was physically possible to do so, and if the appeal judge does decide to amend the charge he must then remit the amended charge back to the magistrate for hearing de novo.”

36.These judgments were quoted, without criticism, by Ribeiro PJ in giving judgment in HKSAR v Tse So So (2007) 10 HKCFAR 368. However, this issue had earlier been further considered by the Court of Appeal in HKSAR v Chan Pun Chung & Anor HCMA 364/1999; unreported, 3 February 2000, where the court allowed an amendment for the purpose of substituting one conviction for another.[3] Recognizing that this was an exceptional course and a departure from the Court of Appeal’s judgment in the Fai Ma Trading Co. Ltd case, the court explained in what circumstances such a course is justified.  It said:

“ We recognise without reservation the need for persons who are facing amended informations to enjoy fully the protection afforded to them by section 27(3) and to be properly tried on the amended informations. Thus, the course suggested by the court in Fai Ma should apply to all those cases in which the amendment of an information by the appellate court would have had an impact on the trial before the magistrate if the amendment had been made at the trial. That would occur, for example, where the amendment changes what the prosecution would have had to prove or what would have amounted to a defence, or where the amendment might have resulted in additional evidence being called or evidence which might have been called not being called, or where the amendment might have affected tactical decisions which were made in the trial. That is not an exhaustive list of the ways in which amendments might have had an impact on the trial, but it illustrates why in most cases justice would not be done if an amendment could be made on appeal without at the same time a new trial being ordered.

But having regard to the reasons relied upon in Fai Ma for requiring an amended information to be heard de novo, we do not think that the Court of Appeal was addressing what would be appropriate if the nature of the amendment sought was such that the course of the original trial would not have been affected at all. In our view, the course proposed in Fai Ma was not intended to apply to such a case. Such a case would come within the category of “exceptional circumstances” referred to in Chen Ta Hoi. What, we ask rhetorically, is the point of ordering a new trial on an amended information where, had the information been amended during the original trial, the course of that trial, having regard to the nature of the amendment, would have been identical?”

37.Mr Kuan, for the respondent, relies on these cases to assert that I have the power to amend and substitute a conviction for a section 28(2) offence in place of the defective charge purportedly pleading the same offence and he says the justification for my doing so is because the present case falls into the exceptional category of being one where the course of the hearing would have been identical.  He accepts that should I not follow this course then the conviction must be quashed as, the appellant having served his sentence, it is not appropriate to remit the case for retrial.

38.However, the difficulty I have with Mr Kuan’s argument is that the authorities on which he relies are cases where a trial took place after a plea of not guilty and the amendment and substitution in no way affected the trial, or impacted upon the magistrate’s analysis of the evidence or upon his finding of facts, by which route he reached his verdict.  Thus, inevitably in these cases, the magistrate would have convicted the appellant of the Amended Charge for the same findings would have proved the Amended Charge.

39.In the present case the conviction of the appellant is based not upon evidence called to prove the elements of the offence but upon his plea of guilty together with his admission to a set of facts.  The appellant’s admission to the Amended Brief Facts does not help the respondent as that Amended Brief Facts merely sets out the appellant’s actions and do not state in specific terms what his intention was.  There is, therefore, no admission by him of this aspect of the mens rea element of the offence.

40.In these circumstances I have no alternative but to allow the appeal in respect of the 1^st charge and to quash the conviction of this charge and set aside the sentence imposed in respect of it.

Supplemental Submissions: Charge 2

41.In a supplemental submission in respect of charge 2 the appellant argued that he was not properly arraigned and that his plea, for this reason, should be regarded as a nullity.  My starting point for an examination of this question is the procedure for the arraignment which is set out in section 19(1) of the Magistrates Ordinance.  It provides:

“Where the defendant is present at the hearing, the substance of the complaint or the information … shall be read over to him, and explained if necessary, and he shall be asked if he admits or denies the truth of the complaint or information …”

42.The reference to “the substance of the complaint or information shall be read over to him” is not intended to in any way dilute the solemnity of the occasion or the importance of the defendant having a clear understanding of what it is he is being asked to admit or deny.  A whole body of case law has developed which emphasises the significance of arraignment, the consequences of it, and the great importance of a plea of guilty being unequivocal.  At the risk of stating the obvious a defendant’s admission, by his plea of guilty, to all the elements of the offence with which he is charged can only be relied upon if it is clear that those elements have been read to him and, if necessary, explained to him so that there is no doubt that he understands what it is to which he is responding.

43.Here, in respect of charge 2, that appeared to have been done and it is only as a result of subsequent developments that doubts have been raised about that process.

44.As to the defects in that process, there are three in nature.  They are:

(i)  the use of the English words “guilty” and “not guilty” in place of their Punjabi counterparts;

(ii)  the failure in the 2^nd charge to include the words “not guilty”; and

(iii)  the translation of the words “to believe that a bomb … liable to explode or ignite was present” as “with intention to scare her … about the bomb or anything like that which can be exploded.

45.I am not troubled by the first two matters.  The appellant was represented at trial and he must have known that a plea would be taken from him in respect of the two offences and that as part of that process he would be asked whether he admits or denies the offence.  I am satisfied that he understood that he was required to respond to the charge and that the response required of him was either an admission or denial of the charge.

46.I find no merit in these criticisms of the arraignment.

47.The third criticism does, however, concern me.  There is clearly a difference in meaning between scaring a person in respect of a state of affairs and causing a person to believe in a state of affairs.  Although I have no evidence before me on any limitations that the Punjabi language might have in translating the word “believe”, I would, nevertheless, be very surprised if it did not have a word for “believe”.

48.Equally surprising is the fact that in Hong Kong, where translation has been such an important part of our judicial proceedings, there appear to be no decisions on mistranslation of pleas or evidence.

49.However, through his assiduous researches, counsel for the respondent has been able to locate a case on mistranslation of evidence.  It comes from New Zealand and is the decisions of its Supreme Court in R v Abdula [2011] NZSC 130.  At paragraphs 40 – 41 McGrath J 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 or 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.’”

50.In Abdula the court was concerned whether the standard of interpretation was compliant with the defendant’s rights under the New Zealand Bill of Rights Act.  On that issue the Supreme Court said:

“[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.

[44] The consequences of a breach of the right to the assistance of an interpreter under s 24(g) is a breach of the right to a fair trial under s 25(a).  We do not accept as correct the Crown’s submission that, once a breach of the right to assistance of an interpreter is shown, the court must exercise a judgment as to whether the accused nevertheless had a fair trial.  Rather, a properly established breach – the failure to meet the required standard – necessarily makes the trial unfair.”

51.Though the cases realistically recognise that it is impossible to expect perfection in any interpretation they can only provide general guidance on when an imperfect translation might fall below a constitutionally acceptable standard.  Inevitably this issue will always be case and fact specific but I do find the comments of the Canadian Supreme Court in R v Tran [1994] 2 RCS 951 at 990 helpful:

“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,[4] 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.”

52.In terms of our own human rights law there is no doubt that it is an essential component of a right to a fair trial that a defendant be provided with interpretation facilities so as to enable him to understand the proceedings.  There is specific provision for this right in Article 11(2)(a) and (f) of the Bill of Rights Ordinance which is 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.  Article 11(2)(a) provides:

“(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 …”

53.Clearly, the purpose of the right is to ensure that the defendant is able to understand the proceedings and in respect of the charge to understand what it is that he is alleged to have done and of what law it is said he is in breach.  These purposes will only be fulfilled if the translation is accurate. However, as Abdula and Tran point out, perfection is an unattainable standard and the constraints of the languages out of which and into which words are being interpreted may require some leeway to be allowed in their precise translation.  But, in my view, there is much less room for leeway when what is being translated are the particulars of the offence in the course of an arraignment.  As I have earlier mentioned the particulars of the offence contain all the elements of the offence and a plea of guilty will be taken as an admission to those elements and will be the basis of the defendant’s conviction.  A court will only be able to rely on a defendant’s guilty plea to found his conviction if it is confident that the defendant understands the elements of the offence and intends by his plea to admit them.  These are the principles that guide my determination of whether, in view of what transpired on the appellant’s arraignment, his plea can be relied upon to found his conviction for the offence with which he was charged or whether it should be treated as a nullity.

54.The appellant argues that there is a difference between an intention to induce someone to believe and an intention to scare whilst the respondent in effect argues that it is a distinction without a difference for, he says, it is not possible to scare someone unless you first induce them to believe in that in respect of which you wish them to fear.  Indeed, he preys in aid the Chinese title to the charge which he informs me, without dissent from counsel for the appellant, imports the concept of scaring.  He said the title can be loosely translated as “Deceitful bomb scare/scaring behaviour”.

55.As attractive as the respondent’s argument is, especially within the context of this particular offence, I am not persuaded by it.  I accept that to scare someone may necessarily include intending that the person being scared form a view about what he is being told but it seems to me that that view does not necessarily have to be of the level.  The person intended to be scared need only be persuaded that what he is being told may a possibly be true in order for the scare to be effective.  But, belief is something more.  In the words of the High Court of Australia in George v Rockett (1990 170 CLR 104 at 116:

“Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition …”

56.Consequently, I conclude that the element of the offence that the appellant communicated information “with the intention of inducing … any other person to believe …” was not put to and admitted by the appellant.  The appellant was arraigned on a defective charge and his plea of guilty to that charge is a nullity.  Additionally, I find that the standard of interpretation provided to this appellant on his arraignment fell below the constitutionally guaranteed standard and thereby deprived the appellant of a fair trial.  I allow his appeal, quash his conviction and set aside his sentence in respect of the 2^nd charge.

Conclusion

57.For the reasons given I allow the appeal and quash the appellant’s convictions in respect of both charges and set aside the sentences in respect of those convictions.

Mr Franco Kuan SPP, of the Department of Justice, for the respondent

Mr H.Y. Wong, instructed by Tsang, Chan & Woo, assigned by D.L.A., for the appellant