HKSAR v. Chen Keen and Others

HCCC 83/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 83 OF 2014

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R U L I N G

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THE APPLICATION

1.On 29 June 2015, the 1^st Accused applied to the court in writing for an order that “the Chinese translations of all the documents [originally in English] be certified for the purpose of the Trial”[1].

2.In a letter to the parties dated 8 July 2015, this court pointed out that section 80B(3) of the Magistrates Ordinance, Cap. 227, does not require the prosecution to provide to the defence any certified Chinese translations of the English documents. The 1^st Accused was therefore directed to file with the court written submissions if an application for the certification was to be made. The prosecution were also directed to file submissions in reply. Thereafter, both parties’ written submissions were duly filed.

3.In the 1^st Accused’s written submissions, the basis of the application was formulated as “the importance of translations of documents may well be crucial. A central issue in the trial will be the extent to which the Applicant speaks and understands English and in this regard his understanding of what the real meaning of documents in English meant in Chinese. It is his case that he does not understand English.”[2]

4.Leading Counsel for the 1^st Accused, Mr. Clive Grossman, SC, further submitted that, “If the documents are not certified as being correctly translated into Chinese, there may be multiple arguments as to the correct meanings of various phrases, sentences or import throughout the trial. Bearing in mind that most of the counsel in this case are not native Chinese speakers, this has the potential to become extremely complicated and would unnecessarily lengthen the trial. It would also no doubt be very confusing for the jury. Whereas if the documents are certified, then there can be no argument about them. … It is the accuracy of these translations that may very well be in issue.”[3]

5.In reply, the prosecution confirmed that a few batches of the Chinese translations of the documents had already been provided to the defence and the exercise would be concluded in time for the trial. As to the question of certified translations, the prosecution’s stance is neutral.

FOR USE AT TRIAL OR FOR THE 1^ST ACCUSED’S OWN READING

6.From the written submissions filed on behalf of the 1^st Accused, the impression one gathered is that the certified Chinese translations would be produced before the jury for use at trial in order to save any argument as to the accuracy.

7.However, if that was the purpose, then it would appear that not all the translations would need to be so certified for it could not be the case that each and every English document would be at the heart of the disputes between the parties. In other words, it could not be the case that the Chinese translations of all the documents would be in issue at trial.

8.The above observation aside, there is a more fundamental point which would, in my view, simply render the production of any certified Chinese translation unnecessary. The following would help demonstrate this.

9.Firstly, for the accuracy of the Chinese translation of an English document to be in issue, it would appear that the 1^st Accused would need to be aware of its existence at the material time. Not only that, it must have been his contention that, at the time, he had understood the document in a particular way.

10.Since, according to the 1^st Accused, he does not speak or understand any English at all, inevitably, when he came across the document at the material time, the document would just be meaningless symbols to him if he was unaided.

11.For the 1^st Accused to have understood the English document in a particular way or to have understood the document to carry a particular meaning, the document must have been interpreted to him by someone at that time. Alternatively, he must have had a translated version in Chinese provided to him.

12.In all these scenarios, the 1^st Accused would not be saying that his then understanding of the English document is what the document actually meant in Chinese but only that he was given to understand the document to mean certain things in Chinese. As to how the 1^st Accused came to acquire that meaning of the document or such an understanding, it is a matter of evidence on his part concerning how the events took place; what he was told or shown at the time; by whom and under what circumstances; and if relevant, what actions, if any, he took as a result.

13.Apparently, all these do not hinge upon what the correct Chinese translation of the English document is, but rather, what he was told or shown at the time. These matters, if raised, are to be resolved by the jury based on the evidence adduced, not on the production of a certified Chinese translation of the document. In fact, even if the certified Chinese translation of the English document means the exact opposite of what the 1^st Accused refers to, it does not stop the jury from finding that the 1^st Accused’s version of events might still be true for it is up to the jury to accept that the 1^st Accused might simply have been deceived or misled as to what the English document actually meant. In other words, in situations like this, it matters not what the certified Chinese translation is.  

14.If, on the other hand, it is the 1^st Accused’s case that he had not even come across such documents at the material time, then similarly, it does not appear to matter what the certified Chinese translations of the documents are. The reason is that if the 1^st Accused did not even know of the existence of the documents, he could not have attributed any meaning to them at the material time and the accuracy of the Chinese translations does not appear to be engaged.

15.Now, whether the 1^st Accused was completely ignorant of any such English documents or whether he only got hold of them when being served by the prosecution is, again, a matter of evidence, not a question of seeking to produce before the jury any certified Chinese translations.

16.In addition, we should bear in mind the following :

(1) this is an English trial;

(2) the documents were originally in English; and

(3) the certified Chinese translations, even if produced, would not be of any use to those jurors who only speak English.

17.Since I fail to see how the certified Chinese translations would be of assistance at trial, I raised it with Mr. Grossman when the parties appeared before me at the PTR held on 23 July 2015 and I asked Mr. Grossman under what circumstances would he expect such certified translations to be of use.

18.In reply, Mr. Grossman appeared to focus on the need of the 1^st Accused to be sure that the Chinese translations of the documents are accurate thereby requiring the certification, rather than any anticipation that such translations would need to be provided to the jury.

19.This, with respect, is quite a different basis for seeking the certification of the Chinese translations than the one which was put forth by way of the 1^st Accused’s written submissions.

20.In any event, I note that this request only came very recently. Between January 2013 and February 2014 when the preliminary inquiry which lasted for some 62 days was conducted before the magistrate, the Chinese translations, if any, were certainly not certified. It did not, however, appear that the 1^st Accused had raised any concern at the time.

21.As mentioned above, the Chinese translations of the documents have been provided to the 1^st Accused (although some may still be outstanding). In the circumstances, we are not in a situation in which the 1^st Accused could only rely on the interpretation service of his legal representatives. Instead, apart from whatever assistance the 1^st Accused is able to obtain from his lawyers, he also has with him the Chinese translations of the documents provided by the prosecution.

22.I should also point out that rule 1(1) of the Official Languages (Translation) Rules, Cap. 5B, stipulates that, “If a court indicates that it intends to conduct a trial, or a part of a trial, in the Chinese language, any document that is written in the English language that is to be admitted in evidence must be accompanied by a certified translation in the Chinese language.”

23.Two points can be made of the above rule. Firstly, the certification of the Chinese translation is in a case in which the trial is to be conducted in Chinese. This is not such a case. This trial is to be in English. Secondly, the certification is for those English documents admitted in evidence at the Chinese trial, not simply any English documents provided to an accused by the prosecution.

THE AUTHORITIES RELIED ON BY THE 1^ST ACCUSED

24.Insofar as the authorities relied on by the 1^st Accused are concerned, I need only to deal with them briefly for in the two cases referred to, the certifications were considered necessary because of very different backgrounds and facts.

25.The case of Chatenay v The Brazilian Submarine Telegraph Company, Limited [1891] 1 QB 79 is a case in which the document was originally written in the Portuguese language but the trial was in English. In such circumstances, it was no surprise at all that the court considered it necessary to first obtain an accurate translation of the document in English.

26.In the case of R v Lam Kwing Kei [1987] 3 HKC 107, the Court of Appeal noted that the uncertified translations of certain Chinese cautioned statements were admitted as defence exhibits and commented at 112 that, “An uncertified translation or a document in a language other than English and unsupported by a certified translation, should not be admitted in evidence.” Again, the comment concerned documents originally written in Chinese, not any documents in English.

27.In short, none of the authorities relied on by the 1^st Accused supports his application for the certification.

CONCLUSION

28.For the reasons given above, the 1^st Accused has failed to persuade me that the certification is necessary. Accordingly, I refuse to grant the order sought.

Ms Charlotte Draycott, SC on fiat leading Miss Joycelyn Ng, Senior Public Prosecutor (Acting) of the Department of Justice, for HKSAR

Mr Edward Fitzgerald, QC leading Mr Clive Grossman, SC, instructed by M/s Boase, Cohen & Collins, for the 1^st Accused