Jariabka Juraj v. HKSAR

HCAL 52/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 52 OF 2014

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J U D G M E N T

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1.This is an urgent application to stay a criminal proceedings.

2.The applicant is the defendant in a criminal trial which is now taking place in the District Court before HH Judge Dufton.  The applicant is charged with one count of inciting money laundering.  The prosecution relies on the evidence of PW1, and some recorded films of the conversations between the applicant, PW1 and others.

3.59 covert recordings were made by PW1.  The prosecution relies on 5 of those recordings and produced the transcripts of them to the  applicant on 28 April 2014.  The transcripts only contain the English spoken at the meetings.  In these transcripts, there were some references to certain non-English spoken in the conversations.  I am given to understand that the judge took the view that the non-English spoken referred to in the transcripts were immaterial conversations.

4.The applicant wants the non-English words in the transcripts to be properly translated.  According to Mr Ross, who also appears for the applicant in the criminal proceedings, the applicant’s ability in understanding and speaking English is limited.  Without properly understanding the Slovakian included in the transcripts, he is not able to conduct proper cross-examination of PW1.

5.The applicant has applied before the trial judge to adjourn the trial for at least 10 days.  I understand that there is only one qualified Slovakian Interpreter in Hong Kong who would be the interpreter in the criminal trial.  In such case, the applicant would have to engage the assistance of some interpreter in his home country to translate the documents.

6.PW1 is not a local resident.  He is actually an Italian.  I am given to understand that he is scheduled to leave Hong Kong shortly after giving evidence in the trial.

7.In refusing the application, I am given to understand that Judge Dufton takes the view that the Slovakian interpreter can translate the Slovakian in the tape recordings for the purpose of the trial.  Time can then be given to Mr Ross to take instructions from his client.  Hence, the trial can still proceed in such manner.

8.As referred to in paras 10.16 – 10.22 in Judicial Review in Hong Kong, there is a very high threshold for criminal judicial review applications.  Normally there is a right of the defendant to appeal in the criminal proceedings, and so the court, in exercising the jurisdiction of judicial review, is reluctant to interfere with the decision made by a judge in the criminal proceedings.

9.In my judgment, the applicant has failed to establish the high threshold that the court should intervene at this particular stage.  The judge has considered all the peculiar circumstances of the case in deciding whether to continue with the trial.  If the judge made an error and the applicant is convicted as a result, he can always lodge an appeal against the conviction.

10.Mr Ross submits that without proper certified translations, it would be very difficult for his client to establish the prejudice which is necessary for the purpose of obtaining a successful appeal against conviction.

11.I disagree.  If the judge has made an obviously wrong decision in allowing the trial to proceed under the present circumstances, which is the high threshold that the applicant has to establish in this judicial review application, the applicant should be able to convince the Court of Appeal that the conviction is unsafe.  As there exists an alternative route by which the injustice, if the applicant is convicted as a result, to the applicant adversely affected by the ruling can be remedied, i.e. the lodging of an appeal, I do not accept that I should interfere with the criminal proceedings at this stage.  I therefore refuse the applicant’s application to stay the criminal proceedings.

Mr Phillip Ross, instructed by Betty Chan & Co, for the applicant

Mr Derek Wong, Senior Public Prosecutor, for the putative respondent