HKSAR v. ERUVATTAM KUNDIL ANIL

HCMA 704/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 704 OF 2014

(ON APPEAL FROM TWCC NO 1346 OF 2014)

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REASONS FOR JUDGMENT

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Introduction

1.  On 7 October 2014, the appellant was convicted after trial by Mr Peter Hui Shiu Keung, Deputy Magistrate (the Magistrate), of two offences of dealing with goods to which the Dutiable Commodities Ordinance, Cap 109, applied, contrary to section 17(1) as read with section 46(3) of the Dutiable Commodity Ordinance, (Charges 1 and 2) and one offence of taking employment while being a person in respect of whom a removal order is in force, contrary to section 38AA(1)(b) and (2) of the Immigration Ordinance, Cap 115 (Charge 3).  The Magistrate sentenced him to concurrent terms of imprisonment of 3 months on Charge 1, 14 days on Charge 2 and 21 months on Charge 3. 

2.  On 14 October 2014, the appellant applied to the Magistrate for a review of the sentence on Charge 3 which was refused.

3.  The appellant appeals the conviction of the three offences and appeals out of time the sentence of 21 months’ imprisonment imposed on Charge 3.

4.  This appeal was previously fixed for hearing on 14 January 2015 and 8 May 2015 but on each occasion it was adjourned because the appellant requested a Malayalam interpreter.  He had previously been provided with the services of a Tamil interpreter in his dealings with the police and at his trial in the Magistrate’s Court.  He acknowledged that he spoke a little Tamil and English. 

5.  At the appeal hearing the services of a Malayalam interpreter were provided to him.  The appellant complained that at his trial he did not have the services of a Malayalam interpreter and as a consequence his evidence had been misinterpreted.  A further hearing was held to listen to the audio recording of his evidence at trial to deal with his complaint. 

6.  At the conclusion of the hearing I dismissed the appeals against conviction and sentence and said I would hand down my reasons which I now do.

Prosecution case

7.  The prosecution case mainly consisted of the evidence of the police officer who on 23 April 2014 intercepted the appellant who was behaving suspiciously.  The appellant was in the company of his girlfriend and carrying a red nylon bag.  The police officer asked him in English what was inside the bag and he replied that he was moving goods.  He asked him again and he said “cigarettes”.  Another police officer searched the bag and found 5,600 sticks (28 cartons) of dutiable cigarettes.  He asked him if the cigarettes belonged to him and he said yes.  He inspected the cigarettes and found that they were all duty not paid.  He then arrested the appellant.  The appellant indicated that he had more cigarettes at home and was willing to take the police officer there to have a look.  He then went with the appellant to his room where he found a further 660 sticks (3 cartons and 3 packets) of dutiable cigarettes inside a plastic bag.  Upon inquiry he acknowledged that the cigarettes belonged to him.  The police officer arrested the appellant for the second lot of cigarettes.  

8.  It was an admitted fact at trial that on 23 April 2014 the police officer found 5,600 sticks of different brands of cigarettes inside a nylon bag the appellant was carrying and that upon a search of his home 660 sticks of cigarettes were found inside a plastic bag.  It was also an admitted fact that all the cigarettes were duty not paid cigarettes and were dutiable and that the cigarettes belonged to him.

9.  The appellant made three written caution statements with the assistance of a Tamil interpreter.  The first was made between 8:25 and 9:50 pm on 23 April 2014.  The second was made between 9:52 and 11:07 pm on 23 April 2014.  The third was made between 10:34 am and 2:29 pm on 8 May 2014.  It was an admitted fact at trial that voluntariness was not in dispute in relation to the three cautioned statements and that each statement accurately recorded what the appellant said and answered during the interview. The first two cautioned statements were taken from the appellant by the police officer at Yuen Long Police Station with the assistance of an English interpreter and a Tamil interpreter.  The third caution statement was taken from the appellant by an immigration officer with the assistance of an English/Tamil interpreter.  In each statement the questions and answers were written in English and Tamil and it was confirmed at the outset that the appellant understood Tamil and agreed to conduct the interview through a Tamil interpreter.  He signed each statement which he acknowledged that he had read and understood.  In the third statement he said that he understood spoken Tamil but could not read or write it.  He agreed to have the statement taken through a Tamil interpreter and acknowledged that what had been recorded had been read out to him which was an accurate record of questions asked and answers provided by him.

10.  In the first cautioned statement he said:

“When I was sitting on a seat in front of a Nepalese Shop yesterday evening I met a Chinese man named Etrong. I don’t know his full name. I have seen him two or three times before this meeting. He asked me what is my job and I replied I am not doing any job. Then he gave me 3 packages of cigarettes and asked me to keep it in my house. He also said that he will give me more packets and asked me to come to the same place today. When I went there today between 9.30 to 10 o’clock as suggested by him he handed over to me 30 packages of cigarettes and told me that someone else will come and collect it from me. He gave me 200 dollars. He noted down my phone number but did not give his. When I got down from the taxi near my house and trying to go inside the police arrested me.”

11.  In the second caution statement he admitted that the cigarettes found at his home had been given to him by the Chinese male the night before.

12.  In the third cautioned statement he said that in relation to the cigarettes:

“I was carrying the cigarettes to my flats. A Chinese male call Etrong gave me the cigarettes in a Nepalese Shop, he told me to carry all the cigarettes back to my flats and somebody will take the cigarettes soon. He gave me HK$200 cash as a reward immediately.”

13.  When he was asked why he was helping Etrong to deliver the cigarettes he said:

“This is my first time I worked for Etrong. I worked for him the reason because I needed some money for my livelihood. After police arrested me he did not contact me, I didn’t have his contact no or I do not know his address.”

Defence case

14.  The appellant gave evidence at trial but gave a different account as to how he came to be in possession of the cigarettes.  He said that on the day of his arrest he met by chance a Chinese male who he knew and had seen two or three times before.  He did not know his name.  The Chinese male had a bag in his possession and was waiting for a friend.  They sat and talked with each other in English during the course of which he received a telephone call from his girlfriend asking him to go to his flat.  The Chinese male then asked him to keep the bag for him and that he would collect it later in the evening from his flat.  The Chinese male knew where he lived.  He said he just took the bag without giving the matter any thought. He said that when the bag was handed to him it was closed and he could not see what was inside it. He said he did not ask the Chinese male what was inside it, nor did he check to see what it contained.  He went home and met his girlfriend.  He handed the bag to his girlfriend while getting the keys to open the gate of the building where he lived.  As he was opening the gate he was intercepted by the police officer.  He asked him what was inside the bag and he said he did not know.  He said that he and the police officer spoke together in English.  He said he told the police officer that a Chinese male had given him the bag to keep it at his home and that he would come in the evening to pick it up.  He said he told the police officer that he would point out the person to him but he was handcuffed and taken upstairs to his flat.  He said his flat was provided as part of the welfare assistance he received as a torture claimant and that there were four other people living there.  He said he did not know where inside the flat the other cigarettes were found.  He said that he and the other four household members were heavy smokers and that he would smoke a packet of cigarettes a day.  He said he would buy cigarettes from a shop. 

15.  The appellant disputed the admissions contained in the first two cautioned statements, and he said that although what was said were in his own words, it was not the truth.  He claimed he made it up to protect his girlfriend because she was also arrested with him. 

Magistrate’s decision

16.  The Magistrate in his statement of findings gave a detailed assessment of the evidence.  The oral evidence consisted of the police officer on the one hand and the appellant on the other.  He found the police officer to be honest, credible and reliable even though he could not remember some of the details of the incident.  He found he could rely on his evidence.  He found the appellant to be an incredible witness who was not honest or truthful.  He rejected his evidence and his account that he incriminated himself in the first two caution statements in order to protect his girlfriend.  He noted that the third caution statement was consistent with the first two cautioned statements.  

17.  The Magistrate found that the appellant had given a consistent version in all three statements in which he admitted that the day before his arrest a Chinese male whom he met at a shop gave him three packs of cigarettes and told him to hold on to them.  The Chinese male told him to return to the shop the following day and that he would give him more packs of cigarettes.  He said he returned to the shop as instructed and met the Chinese male who gave him 30 packs of cigarettes and told him that someone would collect them from him and he would then be given a reward of $200. 

18.  The Magistrate identified that the issue in relation to the first two charges was his knowledge of being in possession of the dutiable cigarettes.  He concluded that the appellant knew he was in possession of cigarettes that were dutiable.

19.  The Magistrate noted that the appellant admitted working for the Chinese male for his livelihood and that he was to be paid a $200 reward for carrying the bag of cigarettes home and keeping them there until someone collected them.  He accordingly found that he was in the employment of the Chinese male when he was apprehended by the police.

20.  The Magistrate was satisfied beyond reasonable doubt that the appellant was guilty of the three charges he faced.

Appeal against conviction

21.  The appellant complained at the appeal hearing that in his statements to the police and in the trial proceedings the interpretation provided was done by a Tamil interpreter instead of a Malayalam interpreter. He claimed that either he did not understand what was said to him or what he said was not correctly conveyed to or understood by others.  He said his mother tongue was Malayalam although he spoke a little Tamil and English. 

22.  According to the Shorter Oxford English Dictionary, Malayalam is a Dravidian language, closely related to Tamil, which is spoken in the state of Kerala and adjacent parts of South West India.  The appellant is from Kerala.

23.  The appellant complained that as a consequence of being provided with the wrong interpreter his account of the matter was not correctly interpreted when he testified.  He claimed what he said was that he bought the cigarettes together with four other household members for their own consumption and not to sell.  He also claimed that when he was asked about the Chinese male from whom he got the cigarettes he gave the name “Adrian Yeung” and not “Etrong” as interpreted.  He claimed he gave the name of “Adrian Yeung” as the person from whom he got the money to pay for the cigarettes.  In the appeal hearing, he produced an Agreement on Provision of Assistance as a torture claimant which was signed by Adrian Yeung as the caseworker.  He said that it was the financial assistance that he received as a torture claimant that he used to buy the cigarettes.  I note that in the cautioned statements the name “Etrong” was written out and on each occasion the statement was read to the appellant without any correction by him.  In any event, he gave the name “Etrong” to the Chinese male who gave him the cigarettes and he was not asked how he paid for the cigarettes because according to his account of what happened he was holding the cigarettes for the Chinese male which were to be collected from him and for this he was to receive a $200 reward.

24.  This was a completely different account as to what happened on the day from other accounts that he had given, in particular the account he gave in evidence in the Magistrate’s Court, and as is apparent it removed the Chinese male and the payment of a $200 reward to deliver the cigarettes which was the evidence that satisfied the element of the offence in Charge 3 of taking up employment. 

25.  The hearing was adjourned to play the audio recording of the proceedings in the Magistrate’s Court to listen to the evidence he gave about his explanation for being in possession of the cigarettes.  He said his explanation had been misinterpreted.  When listening to the audio recording it was apparent that by his answers he understood the questions asked of him and at no time was there any mention by him that he purchased the cigarettes together with the other four household members.  This was contrary to what he had told this Court on the previous hearing.  He initially gave the excuse that he did not mention it because he did not want to create any problems for his girlfriend or friends but when it was pointed out that the issue was whether he said it at all to the Magistrate he then acknowledged that he did not say it. 

26.  As pointed out by Mr Prakash Daryanani, for the respondent, on each occasion when the appellant was either making a caution statement or giving evidence at his trial, he agreed to the provision of a Tamil interpreter and did not make a request for a Malayalam interpreter.  It was only on appeal that the appellant said he needed a Malayalam interpreter. It would seem that on these occasions that the appellant was content to communicate through the services of a Tamil interpreter.

27.  I was satisfied upon listening to the audio recording that there were no signs of any apparent difficulty being experienced by the appellant of questions asked of him in Tamil to which he responded promptly and fluently in Tamil.  There were the usual requests for questions to be asked again and comments of not understanding the question that had been put but it was abundantly clear to me that he understood the questions that had been asked of him as evidenced by the answers that he gave to those questions. I should add that the Magistrate dealt with the appellant when he gave his evidence in an exemplary manner, making sure that he understood the appellant’s testimony and that the appellant was given every opportunity to fully explain his case.

28.  I am satisfied that there had been no misinterpretation or miscommunication when he gave evidence in his trial.  I am also satisfied that there was no unfairness to the appellant in having his trial conducted with the assistance of a Tamil interpreter.

29.  I find that the appellant’s account to this Court to be false and constituted a serious abuse of the appeal processes by him.  I also find that he was clearly proficient in Tamil and that his complaint about the previous interpretation was an excuse to change his story so as to avoid the conviction on Charge 3.

30.  I am acutely aware of the importance of ensuring that a defendant is able to understand what it is that he is alleged to have done and what law it is said he has breached and that he is able to understand the proceedings in which the allegations have been made.  It is an essential component of a right to a fair trial that a defendant be provided with interpretation facilities to ensure that this objective is met.  The purpose of court interpretation is to provide transference of meaning between spoken languages to a standard that will not violate a defendant’s right to a fair trial.  This imposes a high standard on the criminal justice system.  It is not a requirement for perfect interpretation for that is an unrealistic and unattainable standard but for a quality of interpretation that will ensure that the defendant is understood and understands the proceedings and that he receives a fair trial.  See Abdula v R [2011] NZSC 130 at paras 40 to 44 per McGrath J and HKSAR v Shahid [2013] 4 HKLRD 226 at paras 41 to 53 per McWalters J (as he then was).

31.  Of course, under our criminal justice system every effort should be made to provide interpretation services in the person’s mother tongue but there may be circumstances where the person’s linguistic skills in another language are at a level of proficiency that will enable him to fully and effectively communicate through the interpretation of that language.  In the trial process this will be measured by whether a defendant has received a fair trial through the interpretation services provided.

32.  The appellant in his original appeal notice against conviction only made a general complaint without any specific grounds.  I have considered the evidence and the Magistrate’s findings and find no basis to question them in any way.  I should add that during the course of this appeal I, like the Magistrate, found the appellant’s account incredible.  He changed his account as to what happened on the day by saying that he purchased the cigarettes together with four other household members for their own use.  It was yet another different account of what happened on the day in question and in my view designed to denude the conviction of evidential support for the element of taking up employment under Charge 3.

33.  The case primarily turned on the credibility and reliability of the two witnesses who gave evidence.  The Magistrate accepted the evidence of the police officer and rejected the evidence of the appellant.  There is no basis for me to say that he was plainly wrong to have done so.

Charges 1 and 2

34.  In light of the evidence that had been admitted the only issue that the Magistrate had to determine in relation to the first two charges was whether the appellant knew he was in possession of dutiable cigarettes.  Although it should be noted that this offence does not require proof that the accused knew that duty on the goods was payable but had not been paid.  See R v Wang Shih-hung [1995] 1 HKCLR 193.  It seems the Magistrate addressed this issue because from the various accounts given by the appellant, one was that he did not know what was in the bag.  It is clear to me that on the appellant’s own admissions and the finding of the cigarettes both in his bag and at his home, the Magistrate was correct to conclude that he knew he was in possession of dutiable cigarettes.  

35.  There is no basis to interfere with the Magistrate’s conviction of the appellant in relation to the first two charges.

Charge 3

36.  The issue in relation to Charge 3 was whether he was taking employment while a removal order was in force against him.  Under this section, a person in respect of whom a removal order is in force, “must not take any employment, whether paid or unpaid, or establish or join in any business.”  

37.  Whether a person has taken up employment will depend on the particular facts and circumstances of the individual case.  See Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156; HKSAR v Ferosh [2014] 5 HKC 104. 

38.  There are many forms of employment which can be permanent or casual.  Employment in its most common form is where a person does work or performs services for another and usually for remuneration.  Under this offence, the prohibition to employment includes employment that is unpaid.  In the present case, indicia of employment were present.  The appellant had been given a quantity of cigarettes by a Chinese male that he was to hold for him and then to provide them to someone else for a reward of $200.  It was open to the Magistrate to find the appellant had taken up employment on the day in question.  There is no basis to interfere with the Magistrate’s conviction of Charge 3.

Appeal against sentence

39.  On the issue of the appellant’s sentence in relation to Charge 3, the Magistrate applied the sentencing guideline contained in HKSAR v Usman Butt & Ors [2010] 5 HKLRD 452, where the sentence for this offence upon a plea of guilty is 15 months’ imprisonment.  The appellant had a prior conviction for shoplifting for which he was sentenced on 24 March 2014 by way of a $500 fine.

40.  The Magistrate adopted a starting point of 22½ months’ imprisonment which he reduced by 1½ months for the administrative detention of the appellant of 32 days from 10 December 2012 to 10 January 2013, which resulted in a sentence of 21 months’ imprisonment.  I note that the deduction of the period of administrative detention was not within the terms of section 67A(1A) of the Criminal Procedure Ordinance, Cap 221, which provides that a court may reduce a sentence upon being satisfied that the period in custody was in connection with the offence on which the accused was sentenced and immediately prior to his first appearance in court for such offence.  I have not addressed whether it was open to the Magistrate to make such a reduction to the sentence under his sentencing discretion.  It is an issue that will need to be considered with the benefit of full argument.

41.  There is no basis to interfere with the sentence imposed as it followed the sentencing guidelines and comes within the range of penalty appropriate for this offence in the circumstances of the case.

Conclusion

42.  The appellant’s appeal against conviction in relation to the three charges and sentence in relation to Charge 3 is therefore dismissed for the reasons I have given.  I should add that the appellant’s false account to this Court as to the events of the day in question and the false claim that this account had been misinterpreted at trial, unnecessarily and improperly occupied the court’s resources.