HKSAR v. CHAN HON WING (陳漢榮)

Press Summary (English)

Press Summary (Chinese)

FACC No. 8 of 2021

[2021] HKCFA 45

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2021 (CRIMINAL)

(ON APPEAL FROM CACC NO. 200 OF 2016)

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JUDGMENT

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Chief Justice Cheung:

1.  I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Ribeiro PJ:

2.  I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

A.    Introduction

3.  This appeal raises questions, in the context of a criminal trial before a judge and jury, regarding the significance of concerns about the language proficiency of jurors and how such concerns might be addressed.  These questions are important in a jurisdiction like Hong Kong, where there is more than one official language in which court proceedings may be conducted.  To put the discussion of these questions into context, it is necessary first to summarise briefly the particular concern that arose in the trial below, and how it was dealt with by the judge.

A.1    The prosecution and trial

4.  The appellant stood trial before Deputy High Court Judge Beeson and a jury on two charges of trafficking in dangerous drugs (Counts 1 and 3) and one charge of manufacturing a dangerous drug (Count 2).  The counts arose out of events which occurred on 3 December 2014 at a flat rented by the appellant’s son, under a lease commencing the previous month.  The appellant’s son was jointly charged with the appellant on the three charges and pleaded guilty to Counts 1 and 3 but not guilty to Count 2, which was not proceeded with by the prosecution but instead ordered to be left on the court file.

5.  The prosecution case was simple.  The appellant, a taxi driver, was seen parking his taxi and entering the flat twice on the evening in question and staying in the flat for just under two hours and one and a half hours on each visit.  As he was leaving the flat after the second visit, the appellant was arrested by police and found in possession of a plastic bag and some keys.  Inside the plastic bag was a substantial quantity of cocaine, forming the basis of Count 1.  On arrest, he said he was carrying the drugs because he was in debt.  The keys were to the flat and, when the police entered, they found the son there apparently in the process of packaging dangerous drugs.  There was minimal furniture in the flat and a search of the flat led to the discovery of the drugs forming the basis of Count 3, as well as kitchen tools and sodium bicarbonate which could be used in the manufacture of crack cocaine.  Traces of cocaine were detected throughout the flat.  On arrest and caution for manufacturing dangerous drugs, the appellant replied that he did not know about manufacturing dangerous drugs and was only responsible for carrying drugs.  In a subsequent video recorded interview, the appellant admitted he collaborated with his son in manufacturing and trafficking in dangerous drugs to pay off his debts owed to various financial institutions.

6.  Based on this evidence, the prosecution alleged a joint enterprise between the appellant and his son, by which the son carried out the manufacture of the drugs in the flat which the appellant then delivered.  The prosecution case relied on the appellant’s admissions and on the direct and circumstantial evidence arising from the appellant’s arrest.

7.  The appellant testified in his defence.  He denied being in debt and asserted that he went to the flat on the first occasion to deliver soup to his son at his wife’s request.  His son was not there so he left the soup and swept the premises, staying only 45 minutes.  He returned later in the evening at his son’s request to drive him to Kowloon.  On arriving, his son handed him a plastic bag and asked him to wait in his taxi for him.  He did not enter the flat on that occasion but was arrested by the police as he was returning to his taxi.  He denied knowledge of the contents of the plastic bag or drug making equipment in the flat and also denied making the admissions relied on by the prosecution, claiming he was coerced to make these and to sign to acknowledge them, and coached in what to say in the video interview.

8.  At the trial, the opening remarks and evidence occupied nine days (6-8, 10 and 13-17 June 2016) and counsels’ closing speeches and the trial judge’s summing up took place over two days (20 and 21 June 2016), concluding on the morning of the second day. 

A.2    The jury’s question to the judge before the summing up

9.  The trial was conducted in English but, where evidence was given in Chinese, it was translated, by the Court interpreter, who was a very experienced Senior Court Interpreter, into English.  The translation was carried out in the usual manner by the interpreter sitting next to the witness box and providing sequential, or consecutive, interpretation of the evidence, meaning that a question was put by counsel in English, interpreted by the interpreter into Chinese, answered by the witness in Chinese, then interpreted by the interpreter into English.  The interpreter’s translation of the English questions (into Chinese) and Chinese responses (into English) was audible to everybody present in court and recorded by the court audio recording system.

10.  During the morning of the trial on Friday, 17 June 2016, while the appellant was giving evidence in support of his defence, the jury foreman sent a handwritten note to the judge.  The text of the note reads as follows:

“Dear Judge Beeson,

We fully understand our responsibility to be the jury providing verdict to the defendant.

Since this is a very serious decision on the case concerning the freedom of the defendant, we hereby request to have a Cantonese translator for the closing statements of the Prosecutor, the defendant lawyer and the Judge to ensure there is no misunderstanding.

Please review our concern and provide advise [sic] accordingly.

Thank you for your attention to this matter.

Foreman of Jury

[Signature]”

11.  After the appellant had concluded giving evidence, and in the absence of the jury, the judge raised the jury’s question to her with both counsel and said:

“Court: They’re obviously very concerned about whether or not they’re going to understand the addresses and the summing-up. I understand that we have devices that the jury can wear.

…

Court: Yes, and apparently it has been used before for some other matters.  What I am proposing to do is to have the devices available for the jury members.  That means that they get to listen to what’s being said in the English, but if they need to, they can use the translation that’s going on at the same time for the defendant.”

In response to her ladyship, both counsel agreed this was “the proper way to go ahead.”

12.  The judge then recalled the jury and addressed them in these terms:

“Members of the jury, I’ve had this request for your need to have an interpreter, effectively. The Cantonese translator was for the prosecution and the defendant and the judge to ensure there was no misunderstanding. I take it that up to now, you’ve understood what’s been going on in court, but that you’re a bit worried about not having an interpreter available for the addresses. I propose to deal with it like this. We have devices which are headphones, effectively, that you can wear during the deliberations, in which – allows you hear what the Cantonese interpreter is saying so you’ll be able to hear the English, and if you need to, you can resort to the headphone for the translation by the interpreter.

So I think that will cover the problem that you perceive yourselves as having, and we will have those available next Monday, when we will start the addresses.  So I’m going to release you now. I’d like you to start, if possible, on Monday at 9.30 so that we can get as much of the addresses done as possible.  I may have to hold some over to Tuesday, depending on how long the addresses take so that you’ve got plenty of time to go out and consider your verdict, because there are three charges here, and although the evidence has been comparatively simple, there’s quite a lot of it for you to take into account.  So that’s what I’m proposing to do.  Does that put any of you into any difficulties?

So that means you’ll be able to listen to the interpreter while she’s interpreting for the defendant.  And at the same time, if you need to, if you wish to, you can listen to the English.  Any questions or any problems that you perceive?  Perhaps you’d like to discuss it in the jury room.  Let me know when you’re ready.”

13.  The jury retired to consider the judge’s proposed course of action and, on being recalled again, the judge asked if there was any problem with what had been spoken about so far.  This led to the following exchange:

“Foreman: It’s okay, my Lady. We decided to continue. No need to get the headset.

Court: Well, you’ve made me nervous now, so I think we’ll get the headsets for Monday, and if you don’t want to use them, you don’t have to use them, but they’ll be available there if anybody does need to use them.  So I’ll adjourn now until 9.30 on Monday morning.  Feel free to leave the court until that time.”

The jury then retired for the day and the session concluded with the judge asking counsel if there were any matters either wished to raise, to which they both replied in the negative.

A.3    Closing submissions and the summing-up

14.  Before closing submissions commenced on Monday, 20 June 2016, the jury were provided with headsets to listen to the Chinese interpretation of the closing speeches and summing up that was to be undertaken for the appellant by the court interpreter who was sitting next to the dock.  The judge asked the jury to tell her if there were any problems.  Counsel then made their closing speeches from 9.37am until 11.28am, just under two hours.

15.  The interpretation that the court interpreter conducted at this stage of the trial was simultaneous translation.  The interpreter translated the speeches of counsel to the jury and the judge’s summing-up into Chinese simultaneously with the delivery of those addresses in English by the respective speakers.  Unlike the interpretation of the evidence, the translation of the speeches and summing-up was not sequential and, but for the direction to provide the jurors in this trial with headsets, it would only be heard by the appellant in the dock.  On this occasion, however, anyone provided with a headset tuned to the same channel the interpreter was using would be able to hear the interpretation in Chinese, given in parallel with the original English spoken by counsel and the judge.

16.  The judge then began her summing-up at 2.05pm that day continuing until 3.47pm, with a short ten-minute adjournment at 2.53pm.  Her ladyship resumed her summing-up on Tuesday, 21 June 2016, at 10.11am and concluded at 10.31am.  The jury then retired to deliberate and, at 2.39pm, just after lunch that day, returned their verdicts.  They found the appellant guilty on Counts 1 and 3 unanimously and, by a majority of 6 to 1, guilty on Count 2.

17.  There is no record of the identity of the jurors who used the headsets.  Evidence from both counsel and the appellant’s trial solicitor indicates that “a few”, or “some”, of the jurors used the headsets provided during the closing speeches and summing-up.  No transcript of the simultaneous translation is available as the court interpreter’s interpretation was not recorded.  There is no independent evidence from any bilingual speaker as to the accuracy or otherwise of the interpretation.  At one point during the first day of summing-up, the court interpreter asked the judge to switch off the amplifier she was using to project her voice as it was interfering with the interpreter’s reception on her headset.  The judge inquired of the jury after that if they could hear her and received an affirmative reply.  Early on the second day of the summing-up, the jury foreman asked to change the battery of his headset and proceedings continued after this was done.

18.  On 23 June 2016, the appellant was sentenced by the trial judge to a total of 26 years’ imprisonment.

A.4    The appeal to the Court of Appeal

19.  On 15 January 2020, the appellant was granted leave to appeal to the Court of Appeal on the ground that he was deprived of a fair trial because the arrangement for simultaneous translation of counsel’s closing speeches and the judge’s summing-up amounted to a material irregularity in the conduct of the trial.[1] The appellant was refused leave to appeal on a ground alleging that the judge misdirected the jury on the drawing of inferences.

20.  On 3 November 2020, the Court of Appeal dismissed the appeal.[2] The Court of Appeal held that the arrangement, although unusual, did not constitute an irregularity in the trial rendering it unfair and that the appellant had not discharged the burden of establishing that there was a real or substantial risk of material misinterpretation.

A.5    Leave to appeal to this Court

21.  Having been refused certification of points of law by the Court of Appeal,[3] the appellant renewed his application to the Appeal Committee and, on 12 July 2021, leave to appeal was granted to the appellant in respect of the following questions of law:

“(1) Is there a continuing duty on the trial judge imposed by the provisions of section 4(2) of the Jury Ordinance (Cap.3) or otherwise to be satisfied that the members of the jury are able to understand the proceedings in the language in which they are being conducted?

(2) In the event of possible doubt arising, what approach should a trial judge take in order to ensure sufficient comprehension on the part of the jury of the proceedings in the language in which they are being conducted consistent with a defendant’s right to a fair trial?”[4]

B.    Question 1

22.  Consistent with the status of both Chinese and English as official languages of Hong Kong for, among other purposes, “court proceedings”,[5] trials in this jurisdiction, including trials by jury, may be conducted in both languages, although normally proceedings are either in English or Chinese rather than both.  The law and practice relating to jurors is contained in the Jury Ordinance (Cap.3) (“JO”) and, as will be seen, there are provisions concerning the language qualifications of jurors and a discretion is given to the judge to discharge a juror in the interests of justice.  These provisions are consistent with the constitutional right to a fair trial[6] and the judge’s overriding duty to ensure a fair trial.[7]

B.1    The language qualification requirement under the Jury Ordinance

23.  The language qualification requirement for jury service is expressed in s.4(1)(c) of the JO as being that:

“the person has a sufficient knowledge of the language in which the proceedings are to be conducted to be able to understand the proceedings.” (Emphasis added)

The current wording of s.4(1)(c) of the JO was introduced by amendment in 1997 following the amendment of the Official Languages Ordinance (Cap.5) (“OLO”) in 1995 declaring both English and Chinese as official languages of court proceedings having equal status and enjoying equality of use.[8]

24.  In practice, the provisional list of jurors maintained by the Registrar of the High Court is based on information supplied to the Commissioner of Registration when an application is made for the issue of a Hong Kong identity card, and the annual provision of the lists of graduates from local universities and other tertiary education institutions.[9] The supply of such information is reflected in s.4A of the JO, which provides:

“(1) The Registrar or the Commissioner may, by notice in writing, require any person specified in the notice who possesses that information, to supply him, in such manner and within such time as may be so specified, with –

(a) the name and the number of the identity card of any person who has obtained a grade of pass in an English language examination or a Chinese language examination or part of such an examination as may be so specified;

(b) such information as the Registrar or the Commissioner considers necessary to enable the Registrar or the Commissioner to determine whether any person has a sufficient knowledge of the language in which the proceedings are to be conducted to be able to understand the relevant proceedings.

…

(4) For the purposes of subsection (1)(a) –

(a) an English language examination means an examination of English language or an examination conducted in the English language; and

(b) a Chinese language examination means an examination of Chinese language or an examination conducted in the Chinese language.”

B.2    Discharge of a juror for lack of language sufficiency

25.  Lack of language sufficiency as so stipulated in s.4(1)(c) of the JO is a good ground for discharging a person summoned as a juror.  S.4(2) of the JO provides:

“In a trial before a jury, the court or a coroner may, on the court or the coroner’s own motion or on the application of the Registrar or of any interested party, discharge any person summoned to serve as a juror who is unable to satisfy the court or the coroner that the person’s knowledge of the language in which the proceedings are to be conducted is sufficient to enable the person to understand the proceedings.”

26.  As will be apparent from the provisions quoted above (in particular, s.4(1)(c) and s.4A(4) of the JO), no formal standard of language proficiency in either English or Chinese is prescribed.  It has been held, though, in HKSAR v Lhouvum Nemboi, that “the standard is not one of fluency and perfection in the language of the court proceedings”[10] and this must be correct as a general statement of principle since the statutory wording refers only to “sufficient knowledge” of the relevant language.  By definition, sufficiency of knowledge of a language implies a standard of less than perfection and, in this context, is to be measured by reference to the juror’s duty to try the case according to the evidence and to render a true verdict.  Likewise, an ability to understand oral testimony, counsels’ submissions and directions from a judge prior to rendering a verdict does not depend on an ability to speak a language fluently.

27.  If a potential juror is summoned as a juror, unless any insufficiency of knowledge on their part of the language of the trial is raised as a ground of discharge before they are sworn, the verdict given by the jury shall not thereafter be susceptible to impeachment on that ground, since s.6 of the JO provides:

“If any person is summoned as a juror who is not qualified or liable to serve as a juror, or is exempt from service, such want of qualification or exemption shall be a good cause of challenge and the person so summoned shall be discharged on such challenge or on his own application, if the court is satisfied of the fact and so directs; but no such want of qualification or exemption, if not submitted to the court before such person is sworn, shall afterwards be accepted as a ground for impeaching any verdict given by the jury on which such person has served.” (Emphasis added)

28.  Notwithstanding the focus of s.4(1)(c) and s.6 of the JO on language proficiency at the time before a juror is sworn, s.25(1) of the JO provides:

“A court may at any time during the trial of any action, suit, information or indictment prior to the verdict discharge a juror –

(a) where, in the interests of justice, it appears to the court expedient to do so; or

(b) in the interests of the juror.” (Emphasis added)

The interests of justice being broad and flexible, this must necessarily embrace a power on the part of a judge to discharge a juror where it becomes apparent, after the juror is sworn and before verdict, that their knowledge of the trial language is insufficient for them to be able to understand the proceedings.  Although the language of s.25(1) of the JO is permissive, the power of discharge thereunder is a matter of discretion on the part of the court and that discretion must be exercised lawfully.  How that discretion might be exercised in the case of concern about a juror’s sufficiency of knowledge of the trial language will be discussed in addressing Question 2 in this appeal.

B.3    Discretion under JO consistent with the common law

29.  The discretion given to the court by both s.4(2) and s.25(1) of the JO, respectively to discharge a juror summoned to serve before they are sworn and thereafter at any stage prior to verdict, if they are shown to be unqualified or unable to discharge their duty to give a true verdict according to the evidence, reflects the common law.  The principle was stated by Lord Campbell CJ in Mansell v The Queen[11] as follows:

“… if a juryman were completely deaf, or blind, or afflicted with bodily disease which rendered it impossible to continue in the jury box without danger to his life, or were insane, or drunk, or with his mind so occupied by the impending death of a near relation that he could not duly attend to the evidence, in which, although from there being no counsel employed on either side, or for some reason, there is no objection made to the juryman being sworn, it would be the duty of the Judge to prevent the scandal and the perversion of justice which would arise from compelling or permitting such a juryman to be sworn, and to join in a verdict on the life or death of a fellow creature.” (Emphasis added)

In Ras Behari Lal and Others v The King Emperor,[12] Lord Atkin, delivering the advice of the Privy Council, applied the above principle in Mansell v The Queen and described it as “a continuous duty throughout the trial”.

30.  More recently, in R v Ford,[13] Lord Lane CJ reiterated that:

“At common law a judge has a residual discretion to discharge a particular juror who ought not to be serving on the jury. This is part of the judge’s duty to ensure that there is a fair trial. It is based on the duty of a judge expressed by Lord Campbell C.J. in Reg. v. Mansell (1857) 8 E. & B. 54 as a duty ‘to prevent scandal and the perversion of justice.’ A judge must achieve that for example by preventing a juryman from serving who is completely deaf or blind or otherwise incompetent to give a verdict.”

31.  The same principles apply in Victoria: see R v Burns,[14] R v Cullen[15] and R v Searle.[16]

32.  In this jurisdiction, the principle in Mansell v The Queen has been applied in relation to sleeping jurors, in The Queen v Tam Chung-shing and Others,[17] on the basis that it is accepted that a sleeping juror disqualifies himself from giving a true verdict according to the evidence.[18]  The position of a juror who is unable to understand the proceedings because of an insufficient knowledge of the language of the proceedings, albeit not identical, is analogous to that of a sleeping juror.

33.  It should be noted, however, that the Long Title of the JO states that it is an ordinance “[t]o amend and consolidate the law relating to jurors” and so the primary emphasis is to give effect to its terms rather than to delve too extensively into pre-existing common law authority.[19] For this reason, the duty on a trial judge in relation to the sufficiency of a juror’s knowledge of the language of the proceedings is a matter governed by the qualification requirement in s.4(1)(c) of the JO and in relation to discharge of a juror prior to being sworn or prior to rendering a verdict for that same reason is governed by s.4(2) and s.25(1) of the JO respectively.

B.4    Answering Question 1

34.  A trial judge is obliged to exercise the discretion conferred under s.4(2) to discharge a juror summoned to serve on a jury, before they are sworn, if not satisfied that the juror in question has a sufficient knowledge of the language of the proceedings to understand the proceedings.  An obligation to be satisfied of the language ability of a serving juror once sworn may also arise under s.25(1) of the JO, if a concern arises at any time before a verdict is returned as to the juror’s ability to understand the language of the proceedings.  In this sense, the obligation on the trial judge is a continuing one and, at that stage, the judge will have to exercise a discretion to address the particular concern that arises.

35.  In their printed cases, both parties to this appeal submitted that there was “a continuing duty” on the trial judge to this extent by reason of s.25(1) of the JO.[20] The difference between the parties to this appeal arises principally from the stances of each as to the propriety of the arrangement adopted by the judge in the present case.  Determining if the judge’s exercise of discretion in this particular case was proper or miscarried will involve a consideration of the Court of Appeal’s reasoning for dismissing the appeal and the parties’ submissions in respect of Question 2.

36.  However, before turning to address Question 2, it is important to emphasise that the obligations of the trial judge referred to above do not require the trial judge continuously to assess the language ability of each juror during the course of the trial and, in this sense, it is incorrect to regard the judge as being under a positive continuing duty to test the jury’s language proficiency.  The trial judge is entitled to proceed on the basis that those persons summoned for jury service will be taken from a list of persons compiled by the Registrar of Persons who have attained an education level of Form 7,[21] i.e. to matriculation level for entry to a university undergraduate course, and so to be of a relatively advanced level of education.  The trial judge will also normally include, as recommended by the Judicial Institute, a statement about the language to be used during the trial and a request for a potential juror with concerns about their language ability to notify the judge.  In the present case, for instance, the trial judge did include the following statement, broadly similar to that recommended by the Judicial Institute, in her initial remarks to the pool of jurors from which the jury in this trial were selected:

“While most of the evidence to be heard in this case will be heard in Cantonese, and translated into English, the speeches of counsel and I will be in English. If you are not comfortable with the English language, please tell me that if your name is called. You may be called to serve in the future for a case conducted upon [sic] in Cantonese.”

37.  The trial judge will thereafter also hear each of the jurors selected from the pool take the oath or affirmation of a juror to give a true verdict according to the evidence.[22] This will be taken in the language of the trial and the judge will have been able to observe if any juror has had any apparent difficulty in reading or speaking the words of the oath or affirmation.

38.  At either of these points in time, a concern or “red flag” might be raised and, if so, the discretion under s.4(2) of the JO would fall to be exercised.  HKSAR v Kelsey Lord Michael Mudd[23] is an example of this where the discretion was exercised not to discharge the juror concerned.  In that case, one of the jurors when selected for empanelment told the judge his English was “not that good”.  The judge inquired about his occupation and standard of English and concluded that he would be able to understand the proceedings.  Neither party challenged the juror and the judge declined to excuse him.  The Court of Appeal did not consider there was any merit in the ground of appeal based on the juror’s lack of proficiency in English.[24]

39.  If no red flag is raised then, the trial judge is entitled to proceed on the footing that the jurors are able to participate in the trial process in the language in which the proceedings are being conducted.  Thereafter, in the event a concern is raised, whether by reason of interaction between the judge and the jury (as in the present case) or otherwise, the discretion under s.25(1) of the JO might be engaged and the judge might have to consider what approach to take.  This will be discussed below in addressing Question 2.  In any event, it is important to qualify the answer to Question 1 by emphasising that the trial judge’s role in relation to the language proficiency of members of the jury is in the nature of a reactive role to monitor the position in the case of any concern coming to light during the trial.  The judge is not required proactively to assess the ability of the jury to understand the proceedings in the language in which they are being conducted as the trial proceeds.

40.  The broad proposition the appellant sought to derive in reliance on Hemapala v R,[25] namely that a trial judge has to make “proper inquiry … with each and every member of the jury” as to their understanding of the language of the trial,[26] is inapplicable in the context of the JO and the practice and procedure for empaneling a jury in Hong Kong.  In any event, that case is clearly distinguishable on the facts since it involved a trial that was listed to be heard in English before an English-speaking jury but which was in fact conducted largely in Sinhala on the assurance of the jury foreman that the jury members all understood that language.  In those circumstances, a requirement to ascertain the position of each juror is understandable but it does not follow as a general rule that an individual inquiry of each member of the jury must always be undertaken when an issue concerning a juror’s language ability arises.

C.    Question 2

41.  Question 2 asks, in general terms, about the approach a judge should take when a concern is raised about the sufficiency of a juror’s knowledge of the language of the proceedings.  However, it arises in this appeal from the particular arrangement adopted by the judge in this case.  In answering Question 2, it will be convenient to deal firstly with two discrete points of general relevance to the discussion and then to deal specifically with the arrangement in this particular case. The latter discussion will involve an analysis of the Court of Appeal’s reasoning in dismissing the appellant’s appeal and the parties’ respective submissions to this Court.

C.1    The number of jurors required to return a verdict

42.  A jury in a criminal or civil trial or inquiry in this jurisdiction consists of 7 persons, except where the court or the judge before whom any such trial or inquiry is or may be heard, orders that the jury shall consist of 9 persons.[27] In a criminal trial, the jury is always directed to seek to reach a unanimous verdict on a charge against a defendant.  In the event unanimity cannot be achieved, the JO provides for majority verdicts.  Thus, s.24(3) provides:

“(3) In a criminal trial –

(a) where a jury of 7 persons has been sworn –

(i) the verdict of a majority consisting of not less than 5 of them shall, subject to subparagraphs (ii) and (iii), be taken to be the verdict of the jury;

(ii) if the number of jurors has been reduced to 6 in accordance with section 25, the verdict of a majority consisting of not less than 5 of them shall be taken to be the verdict of the jury;

(iii) if the number of jurors has been reduced to 5 in accordance with section 25, the jury must be unanimous in their verdict; and

(b) where a jury of 9 persons has been sworn –

(i) the verdict of a majority consisting of not less than 7 of them shall, subject to subparagraphs (ii), (iii) and (iv), be taken to be the verdict of the jury;

(ii) if the number of jurors has been reduced to 8 in accordance with section 25, the verdict of a majority consisting of not less than 6 of them shall be taken to be the verdict of the jury;

(iii) if the number of jurors has been reduced to 6 or 7 in accordance with section 25, the verdict of a majority consisting of not less than 5 of them shall be taken to be the verdict of the jury; and

(iv) if the number of jurors has been reduced to 5 in accordance with section 25, the jury must be unanimous in their verdict.”

43.  The relevance of this provision is that it is possible that a member of the jury (or even two members) could be discharged during a trial in the interests of justice pursuant to s.25(1) of the JO and still leave intact a jury capable of rendering a lawful verdict.    This conclusion is supported by the Court of Appeal decision in The Queen v Tam Chung-shing and Others.[28] One of the grounds of appeal in that case was that sleeping jurors meant that the verdicts against the appellants were unsafe and unsatisfactory.  The Court of Appeal considered one of the jurors (identified as juror no. 7) had, by his somnolence, rendered himself incompetent to give a true verdict according to the evidence.  Kempster JA’s judgment contemplated that the discharge of juror no. 7 might have been a possible solution to the material irregularity of his participation in the collective deliberations of the jury.[29]

44.  Whether discharging one or two jurors and continuing with a lesser number of jurors, but sufficient to return a lawful verdict, will be a suitable solution to the problem of a juror unable to understand the language of the proceedings will, however, necessarily depend on the particular circumstances of the case.  If it is discovered that a member of the jury is liable to be discharged due to their lack of language proficiency, the ability to continue the trial after discharging a juror will be a relevant consideration for a judge in deciding how to approach the problem.  The English case of R v Chapman,[30] to which the appellant referred the Court, where one of the jurors was disabled through deafness, provides an example of an appeal dismissed on the basis that the deaf juror could have been discharged and a valid majority verdict nevertheless returned.

C.2    The Official Languages Ordinance (Cap.5)

45.  As noted above, s.3 of the OLO declares both English and Chinese as official languages of court proceedings having equal status and enjoying equality of use.  For this reason, it is relevant to consider in what language proceedings are being conducted. This is particularly relevant in a jurisdiction like Hong Kong where not all judges are proficient in both official languages.  Some Hong Kong judges are monolingual[31] English speaking judges and not able to conduct proceedings in Chinese.

46.  In respect of judicial proceedings, s.5 of the OLO provides:

“(1) A judge, magistrate or other judicial officer may use either or both of the official languages in any proceedings or a part of any proceedings before him as he thinks fit.

(2) The decision of a judge, magistrate or other judicial officer under subsection (1) is final.

(3) Notwithstanding subsection (1), a party to or a witness in any proceedings or a part of any proceedings may –

(a) use either or both of the official languages; and

(b) address the court or testify in any language.

(4) Notwithstanding subsection (1), a legal representative in any proceedings or a part of any proceedings may use either or both of the official languages.

(5) The Chief Justice may make rules and issue practice directions to regulate the use of the official languages in the courts.”

47.  That provision was considered by Hartmann J (as he then was) in Re Cheng Kai Nam,[32]a case concerning an application for leave to apply for judicial review of a listing judge’s decision to refuse to list a criminal trial in the District Court, due to be heard by a monolingual English speaking judge, before a Chinese speaking judge.  In dismissing the application, Hartmann J held that s.5 meant that, even though a judge before whom proceedings were to take place determined to use one official language, his decision did not prohibit the parties to the proceedings or their legal representatives employing the other language.[33] It was not a denial of a defendant’s right to a fair trial to be denied a judge who speaks the official language that the defendant chooses to employ.  His fair trial right is contained in Article 11 of the Hong Kong Bill of Rights and, in respect of language, that article only required that, in the determination of any criminal charge against him, a person shall be entitled to have the free assistance of an interpreter if he cannot understand or speak the language of the court.[34]

48.  The relevance of the OLO in the context of this appeal is that the respondent submitted, relying on the analysis of the Court of Appeal (see below), that the judge here was using Chinese by the arrangement of providing the jury with headsets so they could listen to the simultaneous interpretation of counsel’s speeches and her summing-up.[35]

49.  In support of that submission, the respondent relied on the decision in HKSAR v Kong Lai Wah.[36] The issue in that case, where a defendant was convicted after a trial in Chinese, was whether the defendant’s counsel was allowed to use English at the hearing of the appeal.  It was held that the defendant’s counsel could use either or both of the official languages at the hearing of the appeal.  In the course of his judgment for the Court of Appeal, Tang VP (as he then was) held:

“The language of s.5 [of the OLO] is plain and clear. The court may use either or both languages in any proceedings or a part of any proceedings before him as it thinks fit, and its decision is final. However, a legal representative in any proceedings or a part of a proceeding may use either or both of the official languages.”[37]

50.  The respondent went on to submit that, reading s.5 of the OLO and s.4(1)(c) of the JO together, so long as the relevant juror has sufficient knowledge of both official languages, there is no reason a judge could not use both official languages in another part of the proceedings, even though only one had been used previously.  Thus, it was submitted by the respondent, that since the judge was using both English and Chinese, via the means of simultaneous interpretation of her summing-up, there was no question of the jury not having a sufficient knowledge of one or other of the official languages in which the proceedings were being conducted.[38]

51.  This argument essentially adopted the reasoning in the judgment of the Court of Appeal to like effect.[39] In the CA Reasons for Judgment, Macrae VP (writing for the court) referred to s.5 of the OLO and, in reliance on HKSAR v Kong Lai Wah at [6] (see above), said (at [43]):

“It seems to us that the judge in the present case, by allowing the jury to listen to her summing-up in English or, through the official court interpreter, in Chinese, or both, was permitting the use of either or both languages in a part of the proceedings as she thought fit. Indeed, if the judge had used English for one part of her summing-up and Chinese for another part, for example, when reciting direct quotations of evidence, as sometimes happens in trials where the judge and jury are all bi-lingual, there could have been no complaint. In answer to the systemic challenge, we cannot see any impediment in law for the judge to have permitted the official court interpreter to provide a Chinese translation of her English summing-up to jurors; particularly when the jury had requested it in the conscientious performance of their function so as ‘to ensure there is no misunderstanding’, and when both judge and counsel considered it a ‘proper way’ to proceed in the circumstances.”

52.  With respect, there are a number of difficulties in this reasoning.

53.  The Court of Appeal’s construction of s.5(1) of the OLO proceeds on the footing that it provides for vicarious use of one of the official languages by a judge through an interpreter, hence the reference to the judge “permitting the use of either or both languages”.  That point of construction was not fully argued before us and it would be preferable therefore to leave it open.  However, even if use of a language could be through the medium of an interpreter, it is self-evident that a person can only speak one language at a given time and cannot simultaneously speak two separate languages.  The likening by the Court of Appeal of the simultaneous interpretation in this case to a situation where a judge “used English for one part of her summing-up and Chinese for another part, for example, when reciting direct quotations of evidence, as sometimes happens in trials where the judge and jury are all bi-lingual” is inapt.  That possibility is alluded to in HKSAR v Kong Lai Wah (above) but, here, the judge was not bilingual and she did not recite any quotations of evidence in Chinese.

54.  One might add, in this context, that it is most unlikely that a monolingual English speaking judge will ever properly be said to be using Chinese in the course of court proceedings. This would be true even if they were to use a widely understood Chinese word or phrase in the proceedings.  Such de minimis use of a Chinese word or phrase here or there would not be a use of Chinese as such.  Instead, it would be the use of another language because it has a meaning generally understood by English speakers.  In the same way, one would not regard the judge’s utterance of a few random words in, say, French (for example, déjà vu or fait accompli) as constituting the judge’s use of French as the language of the proceedings.

55.  More importantly, however, the essential flaw in the Court of Appeal’s approach in reliance on the OLO is that, even if the arrangement for simultaneous interpretation were compliant with the OLO, it does not follow that such compliance necessarily precludes a complaint of unfairness in the trial process or inconsistency with the principle of open justice.  That the Court of Appeal appear to have taken this approach is apparent from their view that “[i]n answer to the systemic challenge, we cannot see any impediment in law for the judge to have permitted the official court interpreter to provide a Chinese translation of her English summing-up to jurors”.  In summary, their reasoning was thus: the OLO permitted the judge to use Chinese via simultaneous interpretation; the English transcript of the summing-up discloses no misdirection to the jury; the interpreter was of such a high calibre that it can be assumed her interpretation of the summing-up was entirely accurate; therefore, there can be no complaint about the jurors being so directed in Chinese.

56.  That analysis is problematic for the reasons set out in Section C.3 below addressing the question of whether the arrangement was consistent with the appellant’s right to a fair trial and the principle of open justice.  The Court of Appeal thought that it was, in part in reliance on the OLO.  However, as I have endeavoured to explain above, the mere fact that the arrangement may have been compliant with the OLO does not obviate the need to consider the wider issues of fair trial and open justice.  Contrary to the Court of Appeal’s view, therefore, the OLO is not a complete answer to the systemic challenge to the arrangement raised by the appellant.

57.  Finally, I would also note that the Court of Appeal’s reasoning assumes that the jury were entirely bilingual.  As this Court observed in HKSAR v Chan Ka Chun, it may be speculative to assume that all jurors in a trial conducted in English are native Cantonese speakers.[40] Although the request for a Cantonese interpreter may support this assumption, there was never any inquiry to confirm that the assumption was in fact justified.  A red flag having been raised as to the jury’s comprehension of the language of the proceedings, it would have been at least prudent to inquire not only as to the perceived difficulties in English but also to confirm that interpretation into Cantonese as an alternative would obviate any such difficulties.  At that stage, the only other interaction between the members of the jury and the judge would appear to have been in English when they were being sworn.

C.3    Problems with the arrangement

58.  The question at the crux of the appeal is whether the arrangement was consistent with the appellant’s right to a fair trial.  It is the appellant’s case that the arrangement did not result in a fair trial, whilst the respondent’s case is that there was no irregularity in the arrangement so as to deprive the appellant of a fair trial.  The arrangement adopted by the judge was, as the Court of Appeal recognised, “unusual”[41] and, according to the evidence of the very experienced Senior Court Interpreter who was providing interpretation during the trial, “unprecedented”.[42]  Neither of those descriptions, accurate as they are, means that the arrangement was necessarily incapable of providing a fair trial but they do call for a close examination of the particular procedure adopted to determine whether it was nevertheless consistent with the appellant’s right.

59.  When so examined, however, there are various problems with the arrangement adopted by the trial judge for the interpretation of her summing-up. 

60.  First, the interpretation by the interpreter was simultaneous and not consecutive.  As already indicated, there is a significant difference between these two types of interpretation. Consecutive interpretation allows all listeners to hear the statement of a speaker in the original language used and also the translation as spoken by the interpreter.  Bilingual listeners will be able immediately to detect any errors in the translation and counsel might be able to alert the court to such errors.  Simultaneous translation, being rendered at the same time as the original spoken material, does not allow a listener to hear both versions. Instead, a listener can primarily only focus on one or other version of the speech and, in the case of someone using a headset to listen to the interpretation, only the interpretation.[43] Errors of translation cannot be detected immediately without recourse to some record of the speech in the original language and in translation.  Similar observations as to the preference for consecutive interpretation over simultaneous interpretation were made by the Supreme Court of New Zealand in Abdula v R,[44] a case which concerned the issue of the standard of interpretation required to comply with a defendant’s fair trial right under the New Zealand Bill of Rights Act 1990.

61.  Secondly, in the context of a trial by jury, the provision of a simultaneous translation of the judge’s summing-up to some members of the jury, with others listening to the original English summing-up, necessarily means that the members of the jury will not all have been provided with the same summing-up.  Regardless of the quality of the interpretation provided, the decision making process that involves the jury listening to the instructions provided in the judge’s summing-up will have involved some jurors processing and reacting to the English summing-up and some processing and reacting to the Chinese interpretation of that summing-up.  The conclusions they reached by means of one linguistic route rather than the other, for example in relation to the inferences to be drawn, might well have been influenced by the subtleties of difference in language.  As was observed in HKSAR v Chan Ka Chun, meaning, sometimes difficult in one language on its own, may become elusive in translation and, in mistranslation, unattainable.[45]

62.  Thirdly, there is no way to assess what the jury members who listened to the translation of the judge’s summing-up actually heard because there is no recording of the interpreter’s translation and, consequently, no transcript of that translation. This is to be contrasted with the transcript of the English summing-up as pronounced by the judge.  Consistent with the status of the Court of First Instance as a superior court of record[46] and as required by s.79(1) of the Criminal Procedure Ordinance (Cap.221),[47] there is an official record of the court proceedings which a defendant has a right to inspect and copy.[48]  This record is kept in one or both of the official languages.[49]  In the present case, there is only a transcript in English of the recording of the proceedings including the evidence, speeches and judge’s summing-up.  Any question as to possible misdirection of the jury can, indeed must, be addressed by reference to that official transcript.  Insofar as consecutive translation of evidence occurs during a trial, because of the nature of that style of interpretation, there will be a recording of the translation: cf. the video record of interview in HKSAR v Chan Ka Chun, which enabled a comparison between the English translation and the original Chinese to determine whether there were any material inaccuracies.[50]

63.  These problems, particularly the second and third, give rise to a concern whether the arrangement was consistent with the principle of open justice.  As this Court has previously stated, in a system governed by the rule of law, it is axiomatic that adjudicative processes must be fair and impartial and observably so: justice must not only be done, it must be seen to be done.[51] All the more so is this the case when the personal liberty of a defendant in a criminal trial is at stake.  The absence of a record of what might have been said to the jury that led to their verdict convicting a defendant is inconsistent with that principle, which is one of the “bedrocks of the administration of criminal justice”,[52] since consistency with that principle requires that “[t]he whole direction must be by the judge in the full light of publicity”.[53]

C.4    The Court of Appeal’s reasoning

64.  As already indicated above, the Court of Appeal’s reasoning for concluding that the arrangement did not deprive the appellant of a fair trial, adopted by the respondent in this appeal, was essentially that:

(1)  through the simultaneous interpretation of her summing-up, the judge was using Chinese within the meaning of s.5(1) of the OLO (CA Reasons for Judgment at [42]-[43]);

(2)  the appellant was unable to point to any misdirection in law by the judge in the English transcript of her summing-up, including her directions as to the drawing of inferences (CA Reasons for Judgment at [44]-[45]); and

(3)  there was no material risk that the interpreter may have misinterpreted something in the summing-up which thereby undermined a fair trial of the appellant (CA Reasons for Judgment at [46]-[49].

65.  As to (1), the essential flaw in that analysis has been identified above in Section C.2.  Even assuming the OLO permitted the judge to use Chinese via the medium of the interpreter, that cannot mean that the consequences of the arrangement, insofar as they might have impacted on the fairness of the trial or consistency with the principle of open justice, can be wholly ignored.

66.  In my view, the Court of Appeal’s reasoning, at (2) and (3), that the appellant could not point to any misdirection in law in the English summing-up and that the interpreter could be assumed to have translated the summing-up accurately, does not provide an answer to the problems identified in Section C.3.  Regardless of the interpreter’s skill and ability, it remains the fact that the jury members were not all receiving the same summing-up from the same source in the same language and, further, there is simply no independent means to verify the accuracy of the translation as there is no record of the Chinese version of the summing-up as interpreted by the interpreter.

67.  The Court of Appeal may well have been justified in giving weight to the interpreter’s lengthy experience in the Judiciary and also with this judge in particular, the fact the interpreter was conscious of the need to translate for the jurors as well as the appellant, that the judge had provided her with written notes for portions of the summing-up and that the judge’s summing-up occupied a relatively short time.  However, the “exceptional” quality of interpretation services in Hong Kong generally[54] and the competence, experience and conscientiousness of the particular interpreter engaged in this case do not answer the criticism that the arrangement resulted in some members of the jury receiving a different set of instructions by way of summing-up to that received by the jurors who listened to the judge address them in English.  Nor does it answer the criticism that the arrangement did not ensure that the interpreter’s translation of the summing-up was recorded and that there was a proper record of it which could be reviewed.  Open justice requires that justice be seen to be done, not assumed to have been done.  Finally, although the interpreter’s competence is in no way doubted, simultaneous translation must, of necessity, be more onerous for an interpreter than consecutive translation, since the interpreter has the ability to control the speed of the dialogue when engaged in the latter but not the former.[55]  It remains the fact that “even Homer nods”[56] and that possibility renders the problems of a lack of a record of what was spoken by the interpreter all the more acute.

68.  The Court of Appeal’s reference to the time occupied by the judge’s summing-up being short so that there was therefore no risk of misinterpretation by the interpreter[57] ignores the time she was also engaged on the penultimate day of the trial (Monday, 20 June 2016) in translating the closing speeches of the prosecution and defence counsel.  Whilst this may or may not have placed such an additional burden on the interpreter as to cause the accuracy of her translation of the summing-up to diminish, it impacts upon the Court of Appeal’s reasoning that the risk of misinterpretation was immaterial.

69.  The Court of Appeal rejected the argument that a lack of a record of the interpreter’s translation of the judge’s summing-up was an answer to the competence, experience and conscientiousness of the interpreter.[58] However, the authorities cited by the Court of Appeal are not, with respect, a compelling answer in the context of this case.

70.  HKSAR v Gutierrez[59] concerned a Spanish-speaking Venezuelan on trial for trafficking in a dangerous drug.  At the trial, the defendant was assisted by a court-appointed Spanish interpreter and another Spanish interpreter assigned by the Director of Legal Aid.  The defendant appealed alleging that the lack of a dockside audio recording of the interpretation of proceedings to her deprived her of a fair trial.  The Court of Appeal dismissed her application for leave to appeal against conviction holding that there was no right for a defendant to be provided with a recording of the dockside translation of exchanges between an interpreter and the defendant and that “[w]hat is required is that the interpretation be of sufficient quality for the defendant to be able to understand the proceedings and conduct his defence effectively.”[60] The discussion in HKSAR v Gutierrez as to the standard of dockside interpretation to be provided to a defendant is distinguishable from the present case where the issue is different and concerns the absence of the record of the summing-up to a few (or some) members of the jury as the decision-making body.

71.  Similarly, the decision of the British Columbia Court of Appeal in R v Titchener,[61] to which the Court of Appeal referred, is likewise distinguishable.  That case involved evidence given by two deaf witnesses and translated into English by an interpreter who understood sign language.  The argument that the absence of a video record of the evidence given by sign language entitled the appellant to a new trial was rejected.  There is a clear difference between that situation and the present case.  In Titchener, the evidence as received by the jury was in English, rendered by the interpreter, who translated the questions into sign language and the witnesses’ answers in sign language into English.  A second interpreter was present who monitored the interpretation and testified that it was accurate.  No issue of accuracy therefore arose and the court record consisted of the transcript of the words of the interpreter in English.  But, more relevantly to this appeal, the issue in Titchener (as in Gutierrez) did not relate to the absence of the relevant record on which the jury might have based its verdict (as is the case here).

72.  The Court of Appeal also cited the English cases of R v Le Caer[62] and R v Elliot[63] in support of the proposition that the absence of a transcript of a summing-up is not, of itself, a ground on which an appellant can succeed.  That proposition may be accepted but there is a substantial difference between the absence of a transcript of a summing-up in those circumstances, in which the summing-up was pronounced in open court before the appellant and his legal representatives, who could therefore identify any parts of the summing-up that they wished to challenge as a misdirection, and the absence of a transcript of a translation of the summing-up that no-one other than the monolingual appellant and some members of the jury heard.  Thus, the principle enunciated by Lord Widgery LCJ in Le Caer (at pp.730-731), in reliance on Elliot, was that the absence or insufficiency of a shorthand note of the trial is not a ground for saying the conviction is unsafe or unsatisfactory unless the appellant is able to show something to suggest that there was an irregularity at the trial or a misdirection in the summing-up.  The authority of Elliot is a narrow one in that the appellant’s underlying complaint was directed to his statement from the witness box, which was “almost inaudible to the shorthand writer”,[64] not being properly recorded in the shorthand note.  There is no indication the Deputy-Chairman, who read the appellant’s statement for him, was inaudible to the jury when he read the statement or gave his summing-up and the decision proceeded on the basis, applying the principle identified above, that there was nothing wrong in the conduct of the trial.

73.  The respondent seeks to uphold the Court of Appeal’s conclusion by pointing to the jury’s note to the judge as indicating their conscientiousness in seeking to ensure no misunderstanding of the speeches or summing-up.  It is argued that “any of the few jurors listening to the dockside Cantonese interpretation would have raised any suspected deficiency or misinterpretation therein had there been any.”[65] This, however, is a circular argument.  If any of the jurors were struggling with English so as to need the interpretation into Cantonese, it is unlikely they would have identified any potential mistranslations on the part of the interpreter and certainly speculative to suggest they would have raised concerns about the accuracy of the translation of the English summing-up into Chinese.  In any event, as already mentioned, a person listening to a simultaneous translation is unlikely to be able to hear both the English original and Chinese translation with the same degree of focus.  Realistically, the listener will pay attention to one or other of the languages being spoken, but not both at the same time.

74.  Ultimately, it is true the jury here were trying to act with diligence in alerting the judge to their language concerns and the judge’s approach was an attempt to address their concerns pragmatically.[66] There may be some merit in the suggestion that the defence ought to have raised an objection to the arrangement there and then but an absence of complaint at the time is not an absolute bar to raising this point on appeal.[67]  It is not, with respect, an answer to the problems with the arrangement (identified in Section C.3 above) to say, as the Court of Appeal appear to have said, that the verdict must be correct because the case against the appellant was strong.[68]  If instead the Court of Appeal were simply there suggesting that the strength of the prosecution case provided support for the contention that the interpreter must have interpreted the judge’s summing-up accurately, that suggestion does not provide a sufficient answer to the problems in question.

C.5    Answering Question 2

75.  The answer to Question 2 must inevitably be case specific.  Where a concern or, as it has been described above, a red flag is raised as to the language ability of any member of the jury, the trial judge should make suitable inquiry to ascertain the extent of the problem, including the number of jurors who may be struggling to understand the proceedings.  The aim of the inquiry must be to furnish the court with sufficient information to exercise its discretion, either under s.4(2) or s.25(1) of the JO, on the basis it has all material facts to hand. What particular factual matters will be relevant will necessarily vary from case to case depending on the particular circumstances.

76.  Here, the judge was right to regard the note she received from the jury foreman as a red flag as to whether the discretion under s.25(1) of the JO should be exercised to discharge any juror or jurors.  She rightly regarded the red flag as persisting (“… you’ve made me nervous now”) even after the jury foreman indicated they could proceed without the use of the headsets and in this she was proved right by the fact a few or some of the jurors did actually use the headsets.  This concern should have led to a more thorough inquiry as to the precise nature and extent of the difficulty perceived.  If the problem lay with only one juror, or even two, it might have been possible to continue with a jury of 6 or 5 members (cf. The Queen v Tam Chung-shing and Others and R v Chapman, referred to in Section C.1 above).  As will be apparent, this appeal has proceeded on the basis of a rather unclear factual footing that “a few” or “some” of the jurors used the headsets.  This does not enable the Court to come to any conclusion as to how many jurors had any difficulty understanding the proceedings in English, and to what extent.

77.  In the context of the inquiries that might have been made, when the jury’s note was being debated between the judge and counsel, the appellant’s trial counsel engaged in this exchange with the judge:

“Mr Boey: My Lady, just one matter. Obviously I take it from the question raised by the jury, that they were only concerned they may not fully understand or they may have misunderstood verily the part of the submissions. Just out of - - I just want to be prudent. Perhaps they can be asked whether they fully understand what has been going on so far?

Court: They fully understand what?

Mr Boey: They fully understand the evidence which has been presented so far. I just want to be prudent.

Court: I don’t know whether it’s proper to ask them that.

Mr Ryan: I would say no, my Lady. This doesn’t indicate that they haven’t understood the evidence so far.

Court: No. They have understood it so far; they’re just a bit worried about being left without an interpreter for the speeches.

Mr Ryan: That’s right.

Court: So I think I’ll proceed on that basis.

Mr Boey: Right. That was just my concern, that’s why I raised it with your Ladyship.

Court: Well, I think that’s starting to get into the workings of a jury, which I don’t think my problem is.

Mr Boey: Yes.”

78.  Although the judge may have been correct in regarding the jury foreman’s note as not relating to the jury’s comprehension of the evidence given as at that stage of the trial, with respect to the judge, inquiring as to the state of the jury’s understanding of the language in which the evidence had been tendered would not have trespassed on the workings of the jury.  That was an external question that it would have been proper to ask, if she had thought it relevant. Similarly, for the judge to ask how many of the jurors were concerned about their language ability in English would not have been inappropriate. Obviously, the inquiry would need to be conducted carefully, with suitable warnings, to avoid the jury inadvertently disclosing matters internal to their workings. 

79.  That inquiries of the jury would not violate the sanctity of the jury room is supported by the case of The Queen v Tam Chung-shing and Others.[69] The issue for the Court of Appeal in that decision was whether it would be proper to examine as witnesses, on the question of whether the jurors were asleep, the counsel and legal advisers who appeared for the appellants at trial.  The Court of Appeal held that it would.  More relevantly for the purposes of this appeal, Kempster JA stated:

“The evidence of the jurors or some or one of them would not reveal what transpired in the jury-room, might be helpful and would be admissible: Ras Behari Lal v King Emperor; Tickner v Tickner (No.2) [1937] NZLR 802 at p.805.” [70]

80.  With all relevant facts to hand, the judge would then exercise the discretion under s.4(2) or s.25(1) of the JO either to discharge a particular juror or not.  Clearly, when the problem is identified at the outset before the juror is sworn, the prudent course may be to lean towards discharging the juror rather than seeking to mitigate the language problem.  Where the language difficulty only comes to light in the course of the trial, other factors including the stage reached in the trial will be relevant.  At that time, as already noted, it may be possible for the judge to discharge one or two of the jurors without any risk to a lawful verdict.

81.  Where it is ascertained that more than two jurors have a language difficulty, the decision is less straight forward.  The judge’s decision here to extend the dockside interpretation of the speeches and summing-up to the jury was one which necessarily precluded a juror who was using the headset to listen to the translation from hearing the original English summing-up.  This should not have occurred.  Instead, if the judge thought the fairness of the trial could be maintained by means of interpreting the summing-up into Chinese, it would have been preferable if consecutive interpretation were used.  This would have allowed all jurors to hear the English summing-up and also the Cantonese translation of it.  Everyone present in court would have also heard both versions of the summing-up, and there would be a recording of the translation, so that any errors in translation could be identified (ideally immediately but, if not, then certainly on review of the transcript).  Whether consecutive interpretation would be suitable would depend on a number of factors, including the likely length of the summing-up, since this procedure would inevitably add considerably to the overall length of the trial.  This judgment should not be understood as encouraging the adoption of this procedure, which is at best a mitigating measure for an unforeseen and unanticipated problem.

82.  The discretion, whether under s.4(2) or s.25(1) of the JO, is to be exercised with the overriding purpose of securing a fair trial for the defendant.  Clearly, in an ideal world, there will never be jurors with language difficulties.  Where this unavoidably happens, it may still be possible to secure a fair trial by means of consecutive translation.  Insofar as this might entail different jurors processing a different version of the summing-up (some relying on the original English, others the Chinese translation), given the particular case, this may not amount to a miscarriage of justice: cf. HKSAR v Chow Ho Yin, where McLachlin NPJ noted that not every departure from a norm constituting part of the fair trial right will require a new trial.[71]

D.    Conclusion and disposition of appeal

83.  In the present case, given the problems with the arrangement adopted by the trial judge (set out in Section C.3 above), I would conclude that there is a material risk that the appellant did not receive, and was not seen to have received, a fair trial and that the judge’s exercise of discretion under s.25(1) of the JO did miscarry.

84.  I should add that nothing in this judgment should be taken as criticism of the Senior Court Interpreter, who interpreted for the trial judge in this case, or indeed the trial judge herself, since this was an unusual situation and one which the judge sought to deal with pragmatically.  At the end of the day, though, it would be to trivialise the problems with the arrangement to accede to the respondent’s invitation to uphold the Court of Appeal’s judgment dismissing the appellant’s appeal.

85.  I would therefore allow the appeal and quash the appellant’s convictions on the three counts with which he was charged.  Contrary to the submission of counsel for the respondent,[72] this is not a suitable case for the application of the proviso.[73]  I would, however, also order a re-trial of the appellant on the charges, in view of the apparently cogent prosecution case against him and the fact, as confirmed by counsel for the respondent, that the evidence adduced at trial is still available, and notwithstanding the submissions of Mr Eric Cheung[74] on behalf of the appellant relying on the appellant’s age (69 years) and the length of time since the alleged offences took place (7 years).

Mr Justice Lam PJ:

86.  I agree with the judgment of Mr Justice Fok PJ.

Lord Hodge NPJ:

87.  I agree with the judgment of Mr Justice Fok PJ.

Chief Justice Cheung:

88.  The appeal is accordingly unanimously allowed and we answer the questions of law as set out above.  In disposition of the appeal, we make the orders set out in paragraph [85] above.