HKSAR v. CHAN HON WING

CACC 200 /2016

[2020] HKCA 938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 200 OF 2016

(ON APPEAL FROM HCCC NO 210 OF 2015)

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.  The appellant was jointly charged together with his son Chan Wai Leung (“D2”) in respect of three counts on an indictment: Trafficking in 1,123 grammes of a solid, containing 1,077 grammes of cocaine (“Count 1”); Manufacturing a dangerous drug, namely cocaine (“Count 2”); and Trafficking in 788.55 grammes of a solid, containing 746.04 grammes of cocaine (“Count 3”). All three counts concerned events which took place on 3 December 2015 at a domestic flat in Fanling, New Territories rented by D2 (“the premises”).

2.  The appellant pleaded not guilty to all three counts.  D2 pleaded guilty to Counts 1 and 3, but not guilty to Count 2.  Accordingly, the prosecution did not proceed to trial against D2 on Count 2, which was ordered to be left on court file marked not to be proceeded with, without the leave of the court.

3.  On 21 June 2016, following a trial before Deputy Judge Beeson (the “judge”) and a jury, the appellant was found guilty of all three counts on the indictment.  On 23 June 2016, he was sentenced to 26 years’ imprisonment.

4.  On 7 July 2017, the appellant filed a Notice of Application for Leave to Appeal (by way of Form XI) seeking leave to appeal against both his conviction and sentence.  He subsequently abandoned his application for leave in respect of sentence on 8 May 2019.  On 15 January 2020, the appellant was granted leave by the Single Judge[1] in respect of Ground 1 of his perfected grounds of appeal only.

5.  On 3 November 2020, having heard argument from both parties, we dismissed the appeal and said that we would hand down our reasons for so doing in due course.  These are our reasons.

The prosecution case

6.  At about 5:28 pm on 3 December 2014, the appellant, who was a taxi driver, was observed driving his taxi into the carpark of a development and entering the premises in question.  He was later seen leaving the premises, returning to his taxi and driving out of the carpark at about 7:25 pm the same evening.  At about 9:53 pm, the appellant returned to the carpark and again entered the premises, where he remained for just under an hour and a half.  At about 11:20 pm, the appellant was intercepted by police officers, as he was leaving the premises and walking towards his taxi in the carpark.  At the time, inside a plastic bag he was carrying were found the dangerous drugs particularised in Count 1; namely, 1,123 grammes of a solid, containing 1,077 grammes of cocaine.  Also found on him were some keys.  He was duly arrested and cautioned for trafficking in dangerous drugs.  In response, the appellant said he was carrying the dangerous drugs because he was in debt.  These facts formed the basis of Count 1 on the indictment.

7.  After gaining entry to the premises using one of the keys found in the appellant’s possession, police officers found D2 in a squatting position on the living room floor, apparently in the process of packaging dangerous drugs.  Upon a search of the premises, a solid of what was later certified to be 788.55 grammes of a solid, containing 746.04 grammes of cocaine in the form of cocaine hydrochloride, was found.  Kitchen tools and sodium bicarbonate, which could be used in the making of crack cocaine, were also found and seized.  Traces of cocaine were detected on almost all of the items seized inside the premises.  However, minimal household furniture was seen inside the premises, which did not appear to be lived in, notwithstanding that D2 had taken out a tenancy on the premises on 1 November 2014, a month earlier[2]. The appellant was then arrested and cautioned for manufacturing a dangerous drug.  In response, the appellant said he did not know about manufacturing dangerous drugs; he was only responsible for carrying drugs.

8.  A Government Chemist, who subsequently carried out an examination of the premises, was of the opinion that the manufacturing of crack cocaine from cocaine hydrochloride had been taking place inside the premises.  These facts formed the basis of Counts 2 and 3 on the indictment.

9.  The street value of the cocaine in Count 1 was estimated by Inspector Lo Kwok-kin, whose statement was read into evidence under section 65B of the Criminal Procedure Ordinance, Cap 221, at HK$1,074,711; while the value of the cocaine in Counts 2 and 3 was put at HK$754,775.

10.  In a video recorded interview (“VRI”) subsequently conducted with the appellant, he admitted that he had collaborated with D2 in the manufacturing and trafficking of dangerous drugs for monetary reward[3] so as to reduce his debts of several hundred thousand dollars, which he owed to various financial institutions[4]. The appellant then detailed his participation in the offences on the day of his arrest.  On 3 December 2014 at about 6 pm[5], he admitted that he had placed six bags of “white-coloured powder”[6], which he had collected from a person called “Ah B” in Tai Kok Tsui earlier that day[7], in the premises in the absence of D2[8]. He then notified D2 by telephone[9]. He left the premises when D2 arrived[10]. At about 10 pm, the appellant returned to the premises and collected the dangerous drugs in order to deliver them to Yau Tong[11].  These were the dangerous drugs which were seized from him.  Had the delivery to Yau Tong been successful, he would have been rewarded by “Ah B”[12].

11.  The prosecution called three witnesses and adduced the written statements of three other witnesses, pursuant to section 65B of the Criminal Procedure Ordinance.  The prosecution case was that there was a joint enterprise between the appellant and D2, whereby D2 did the actual manufacturing inside the premises of the dangerous drugs, which the appellant would then deliver.

12.  The prosecution case relied mainly upon admissions made by the appellant; firstly, to the arresting officer, which admissions were subsequently post‑recorded and confirmed in his notebook; secondly, to the same officer during the taking of his subsequent VRI.  It was also the prosecution’s position that even without the admissions in the post-record and the VRI, there was sufficient circumstantial evidence for the jury to conclude that the appellant was trafficking in, and manufacturing, dangerous drugs.

The defence case

13.  The appellant elected to give evidence but did not call any witnesses.  He denied that he was in debt[13].  He had gone to the premises on the first occasion to deliver soup to D2 at the request of his wife[14].  When he discovered that D2 would only arrive at the premises later[15], he put down the soup and swept the floor of the premises, before leaving for work[16].  He had remained in the premises on this occasion for about 45 minutes[17].  At about 10 pm on the same day, D2 asked the appellant to come to the premises in order to drive him to Kowloon[18]. When the appellant arrived and knocked at the door, D2 handed over a plastic bag to him[19] and asked the appellant to drive his taxi round and wait for him[20].  He said he did not enter the premises on this occasion[21].  He was then intercepted by police officers on his way back to his taxi[22]. 

14.  The appellant denied any knowledge of the contents of the plastic bag[23], or any association with the drugs or drug-making equipment in the premises[24].  He further denied making the admissions recorded in the police notebook[25].  He claimed he had been threatened and assaulted by the police and forced to sign the relevant notebook entries[26]. Furthermore, the admissions in the VRI were not true.  The appellant said that he had made them involuntarily, and that the admissions were the result of extensive coaching by police officers[27].

The jury’s question on 17 June 2016

15.  During the morning session of 17 June 2016, while the appellant was in the middle of his evidence, the jury foreman sent a note to the judge in the following terms[28]:

“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’s lawyer and the Judge to ensure there is no misunderstanding.

Please review our concern and provide advice accordingly.

Thank you for your attention to this matter.

(Signed) Foreman of the Jury”

16.  After canvassing the issue with the parties, once the appellant had finished his evidence, the judge proposed to have headphone sets made available for the jury so 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”[29].  The judge then asked both counsel whether they agreed that this was a “proper way” to proceed[30].  Both defence counsel and prosecuting counsel agreed that it was[31].

17.  The jury were then called into court and the judge explained to them what she had in mind[32]. She then asked the jury to leave court and discuss among themselves whether they had “any questions or any problems” about what she proposed[33].  Accordingly, the jury again left court to consider the matter.  When they were called back into court a few minutes later and asked directly by the judge whether there was “any problem with anything that’s been spoken about so far”[34], the foreman responded[35]:

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

Nevertheless, in view of the concern which the jury had earlier raised, the judge ordered that headphone sets be made available on the following Monday, so that the jury could make use of them if necessary^[36]. The jury were then released until the following Monday and left court.  After they had withdrawn from court, the judge asked both counsel if they had anything to raise.  Each counsel said “No”^[37].

Conduct of the summing-up

18.  The judge began her summing-up at 2:05 pm on Monday, 20 June 2016, following the conclusion of both counsel’s speeches in the morning and a 2-hour luncheon adjournment.  Apart from a 10-minute adjournment at 2:53 pm, she delivered the first part of her summing-up until 3:47 pm, and then adjourned for the day.  The judge resumed her summing-up at 10:11 am on Tuesday, 21 June 2016, and the jury in due course left court to consider their verdicts at 10:31 am.

19.  It is worth observing that at the outset of her summing-up on 20 June 2016, following some introductory remarks, the judge had asked the jury directly whether they were able to hear her.  The foreman responded “Yes”^[38]. Sometime later, in the course of her summing-up, the interpreter interrupted proceedings to ask if the judge might switch off her amplifier, which was interfering with the interpreter’s reception.  This the judge did, at which the interpreter thanked the judge and reported that it was “much better”^[39].  The judge also took the opportunity at this time to ask the jury again whether they were able to hear her, and the foreman responded “Yes”[40].  At the end of the first day of the summing-up, or, indeed, at the end of the summing-up on the second day, no issue was raised by either the defence or prosecution as to the audibility of the judge’s delivery, or any other concern.

20.  At the beginning of the resumption of the summing-up on 21 June 2016, the foreman interrupted the judge to ask to change the battery of his headphone set, which was duly done.  The summing-up then continued to its completion without any further break or interruption^[41].

The ground of appeal

21.  The ground of appeal put forward by Mr Eric Cheung on behalf of the appellant, and upon which leave to appeal has been granted, alleges that the appellant was deprived of a fair trial because of amaterial irregularity in the conduct of the trial when the judge arranged for a simultaneous interpretation of counsel’s closing submissions and her summing-up by the court interpreter.  Accordingly, it is argued that some jurors were permitted not to listen to an important part of the proceedings in the official language of the trial, which was English, but were instead allowed to listen to the Chinese translation, in circumstances where there was a real risk of mistranslation by the interpreter, which could not be verifiedby any record of the translation.

Enquiries with trial lawyers in respect of the impugned arrangement

22.  Solicitors for the appellant have made appropriate enquiries of both counsel and the defence solicitors at trial, none of whom act for the appellant at this appeal, in accordance with the procedures laid down by this Court in HKSAR v Apelete (No 1)[42]. Prosecuting counsel pointed out that it was a few years since the case was heard and he was unable to say whether or not the jury could hear the judge or to what extent they relied on the translation entirely. According to the case report compiled by him at the conclusion of the trial, he had recorded that “some of the jury members” appeared to be making use of the headphones.

23.  The appellant’s solicitor at trial confirmed that, after the jury’s request for headphones had been explained to the appellant by counsel, the appellant had agreed to the arrangement.  The solicitor recalled “a few jurors” making use of the headphone sets but he could not remember who used them, or how they were used.  The solicitor was not provided with headphones and was unable to hear the interpretation clearly, since he was some 10 feet away from the dock.

24.  Defence counsel confirmed that he had explained the jury’s request for headphones to the appellant, who had no objection to the arrangement.  Counsel, who is bi-lingual, formed the opinion, from his own observations, that the court interpreter “had shown to be a highly competent interpreter”.  Accordingly, he considered that “there was no reason for me to doubt that the Court Interpreter could not translate the closing speeches of counsel and the learned judge’s summing-up accurately and correctly”.  He concluded:

“It might not be to the benefit of Mr Chan if some members of the jury misunderstood the closing speeches of counsel or the learned judge’s summing-up. The arrangement for the jury to be able to listen to the live interpretation, if they wished to, better safeguarded Mr Chan’s interest in the circumstances.”

25.  He recalled that a few jurors appeared to be using the headphone sets, but he also could not recall how they used them.  He was not himself provided with a headphone set and could not, from his position inside the courtroom, hear the interpretation clearly.

Statement of facts by Ms Janet Woo, Senior Court Interpreter

26.  Pursuant to the Single Judge’s directions of 4 June 2020, Ms Janet Woo, the court interpreter in question, who was responsible for interpreting proceedings throughout the trial between 6 and 23 June 2016, filed a Statement of facts dated 15 July 2020, together with 8 appendices.  According to her Statement, Ms Woo had obtained a Higher Diploma in Interpretation and Translation from City Polytechnic in Hong Kong in 1991.  She further obtained a Master’s degree in Translating and Interpreting (with credit) from the Hong Kong Polytechnic Universityin 2015.  She completed the first taught subject (with three credits and a Grade B) of a Doctorate Degree in Applied Language Sciences in 2016, but was unable to continue with her studies because of her heavy court duties at the time. 

27.  Since joining the Judiciary in 1991, Ms Woo has worked as a court interpreter in the Magistracy, the District Court and the High Court, in both civil and criminal proceedings.  During her career at various levels of the court system, she had never received any complaints in respect of her work.  On the contrary, she had received written commendations from six judges and magistrates^[43].  It is interesting to note the comments of one of those judges, who was the same judge in the present case.  Writing in August 2012 to the Faculty of Humanities at the Hong Kong Polytechnic University, some 4 years before the present trial took place, the judge wrote:

“I write to commend to you, Miss Janet Woo, who has worked for me as interpreter and translator, in the Court of First Instance, for a period of 5-6 years.

In her role as interpreter she has been very effective, as her standard of written and spoken English is very high and she has a comprehensive understanding of the different types of English, from very formal, to the more demotic forms of speech and encompassing technical and specialist jargon. She has a pleasant speaking voice and the accent of an educated native speaker of English.

Ms Woo has a very well developed vocabulary and excellent reading skills.”

28.  In her Statement, Ms Woo provided a list of other interpreting functions she has performed in non-legal settings over many years, including two international conferences, in Singapore in 2013 and Taiwan in 2017, when she had provided simultaneous interpretation.

29.  Up until 2016, Ms Woo had completed about 76 jury trials, of which some 16 were before the judge in question, having been designated the judge’s court interpreter since 2007.  So far as her practice of interpreting the judge’s summing-up in previous trials was concerned, she said she had always interpreted the judge’s words to various defendants verbatim and simultaneously.

30.  In respect of her interpretation at the trial in the present case, Ms Woo described the arrangement as “unprecedented” and, as a result, she would have worked “extra hard” to fulfil her function of interpretation “more gingerly”, conscious that she was interpreting for a wider audience that included jurors^[44]. Remarkably, given the passage of time since the trial, Ms Woo was able to locate and provide to the Court the actual typed notes of directions which had been provided to her by the judge before the summing-up in the present case^[45], as well as a copy of the jury foreman’s note[46].

31.  Ms Woo stated that, since she was familiar with the accent, pace and modus operandi of the judge’s speech in the delivery of her summing-up, she encountered no difficulty in following the speed of the judge’s summing-up[47]. Having listened to the audio-recording of the summing-up and the English transcript of the same, she considered the trial was a short one, taking only about 2½ hours in all to listen to.  She was confident she was able to interpret the summing-up verbatim, since she was used to the judge’s accent and tone[48].  The judge’s pace was normal and sometimes slow[49]. She corrected the court transcript of the exchange between the jury foreman and the “interpreter” at the commencement of the second day of the summing-up, pointing out that the exchange was in fact between the foreman and the clerk of the court and not her^[50]. Nothing turns on this last matter.

The application to adduce new evidence

32.  In support of his ground of appeal, Mr Cheung applied under section 83V of the Criminal Procedure Ordinance, Cap 221, to introduce fresh evidence at the appeal; namely, an expert report of Dr Andrew Cheung Kay Fan (“Dr Cheung”), dated 15 September 2020.  We indicated at the outset of the hearing of the appeal that we would receive the evidence on a de bene esse basis.

33.  For present purposes, we note that Dr Cheung is an Associate Professor at the Department of Chinese and Bilingual Studies of the Hong Kong Polytechnic University.  He completed his Master’s degree in Conference Interpreting at the Fu Jen Catholic University in 1998, and obtained his PhD at the University of East Anglia in 2008, his thesis being “Professionalization of Court Interpreters in Hong Kong”. He has been teaching courses in Interpretation at the Hong Kong Polytechnic University since 1998.  His research and teaching interests are in simultaneous interpretation and consecutive interpretation.

34.  In his report, Dr Cheung states that simultaneous interpretation by interpreters in a court trial setting is done by way of “chuchotage”, a form of interpretation in which the interpreter speaks sotto voce directly into the ear of the listener.  The quality of chuchotage in a courtroom setting is often compromised by certain factors; for example, a lack of visibility of the speaker, distraction from not being able to sit alone in a booth, the limitations of concentration, insufficient support and a lack of awareness of the deterioration in quality of the interpretation.  The situation was exacerbated by the synaptic difference between English and Chinese.  Consequently, chuchotage interpreters often employ strategies such as omission, summarising and simplification at the expense of accuracy and completeness in the translated language.  Dr Cheung noted that the standard time limit for simultaneous interpretation in the United Nations was not more than 30 minutes.

35.  Dr Cheung concluded that he was doubtful the interpreter in this case could maintain a high level of accuracy throughout the summing‑up, especially after the 30-minute mark, since the interpreter lacked access to a separate booth, had no one to provide assistance to her and had to work alone for an extended period of time.  Dr Cheung further stated the numerous relative clauses used by the judge in her English summing-up^[51] significantly increased the risk of error and omission in simultaneous interpretation from English to Chinese.

The appellant’s submissions

36.  Mr Cheung argued that it was a material irregularity to permit some jurors to listen to the parties’ closing submissions and the judge’s summing-up in a language which was not the language of the trial, that is English.  The risk of errors or omissions was inherently higher in simultaneous interpretation than in consecutive interpretation or translation of written documents.  Furthermore, misinterpretation could not be ascertained because of the lack of any record of the interpreter’s translation of the summing-up.  Nevertheless, there was a real or substantial risk of misinterpretation in this case, such that the verdict must be unsafe and unsatisfactory.

37.  Referring to a report prepared by the Judiciary, which had conducted a series of mock trials in 1995/1996 to assess the feasibility of simultaneous interpretation in courts, Mr Cheung submitted that it has already been concluded by the Judiciary that simultaneous interpretation is not an acceptable mode of interpretation in court because of the risk of a miscarriage of justice.

38.  Mr Cheung further highlighted the risk of misinterpretation generally inherent in simultaneous interpretation in court.  He identified four specific risks: namely, the poor sound reception in the first 23 minutes of the summing‑up; a prolonged summing‑up without a suitable break for a solo interpreter; frequent use of relative clauses in the English summing‑up; all set in the context of the judge’s particular illness.

The respondent’s submission

39.  Mr Ned Lai, with him Mr Andy Lo, on behalf of the respondent, submitted that there was nothing to show that there was any misinterpretation, let alone a material misinterpretation in any part of the summing-up.  The circumstances of the trial, including the court interpreter’s background, experience and history of working with the judge, indicated that none of the four specific risks alleged by the appellant were present.  The circumstances of the trial also left no room for suggesting that there might have been any misunderstanding on the part of any of the jurors.

40.  In respect of Dr Cheung’s report, Mr Lai submitted that it was irrelevant to the particular circumstances of this appeal and should not be admitted as evidence.  Following the conditions set out in HKSAR v Gutierrez[52], the appellant had to show specifically what the deficiency in the interpretation was and how it may have impacted on the fairness of the trial.  Mr Lai argued that Mr Cheung’s reliance on the report of Dr Cheung amounted to an invitation to this Court to speculate about the quality of the actual interpretation, without recognising the overall circumstances and context of the trial, which included the nature and complexities of the evidence and the essential issues which arose for consideration; and without identifying anything that was wrongly interpreted, which might have impacted on those issues at trial.

41.  Mr Lai pointed out that the trial was short and factually simple.  Other than vague assertions of risk, the appellant has not been able to establish any specific deficiency in any part of the summing-up.  The overall circumstances in the present case pointed compellingly to there being no real risk of the interpreter’s interpretation having failed, by error or omission, to enable both the appellant and the relevant jurors to have an accurate understanding of the summing-up.

Discussion

42.  Mr Cheung began his argument by contending that there was a systemic failure in the conduct of the trial whereby, instead of the proceedings being conducted in English as the language of the court, the jury were given the option of receiving a vital part of those proceedings in either English (from the judge) or Chinese (through the interpreter).  However, it is important to remember that, since the coming into force of section 3(1) of the Official Languages Ordinance, Cap 5, both the English and Chinese languages are “the official languages” of court proceedings in Hong Kong and, by virtue of section 3(2), “possess equal status and … enjoy equality of use” in such proceedings.  Furthermore, section 5 of the Ordinance provides, in respect of judicial proceedings:

“(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.

…”

By virtue of these provisions, there is now no restriction as to which of the two official languages may be used at any stage of any court proceedings, subject to the discretion of the presiding judge.  It has been held by Tang VP (as he then was), giving judgment on behalf of the Court in HKSAR v Kong Lai Wah[53], that in respect of section 5 of the Ordinance:

“The language of s.5 is plain and clear. The court may use either or both languages in any proceedings or a part of any proceedings before him as he thinks fit, and its decision is final.”

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.

44.  Faced with the plain reading and application of sections 3 and 5 of the Ordinance, Mr Cheung appeared to draw back from his systemic challenge, contending instead that the risk of misinterpretation was greater with simultaneous translation than with consecutive translation.  However, this argument depends on the skill and ability of the interpreter, in the context of the specific function he or she is performing in a particular case. It seems to us that this was a simple, straightforward and short summing-up, in which the issues were knowledge (in respect of Count 1) and complicity and possession (in respect of Counts 2 and 3).  But, more importantly, Mr Cheung was unable to point to any misdirection in law by the judge in her summing-up.  If it was being contended that the directions on inferences were incorrect, we do not agree.  We should point out that leave on this ground (originally Ground 2 of the Perfected Grounds of Appeal) had been refused by the Single Judge and the application for leave was not renewed before us.  Looking at the summing-up as a whole, it was made quite clear to the jury that they were entitled to draw inferences if they were the only reasonable ones they could draw from the facts that had been proved, so that they were sure about them[54].

45.  Elsewhere in the summing-up, the jury were directed, in the context of circumstantial evidence, that if the evidence revealed other circumstances which were of sufficient reliability to cast doubt on or destroy the prosecution case, then the appellant must be acquitted[55].  Furthermore, they were also instructed that if the appellant’s evidence was or may be true, he should, again, be acquitted[56]. When one views the summing-up as a whole, we do not accept that the direction on inferences was deficient.  In any event, as we have said, Mr Cheung did not renew this ground of appeal.

46.  Since one cannot point to any misdirection in law, nor any error in the recital of the evidence, the argument can only be that there was a risk that the interpreter may have misinterpreted something in the summing-up, which thereby undermined a fair trial of the appellant.  However, this is highly speculative and we are not prepared to presume such a possibility of misinterpretation, let alone a “real or substantial risk” of misinterpretation.  The interpreter in question was a highly competent, experienced and conscientious court interpreter, who had worked in the judiciary for almost 25 years by the time of this trial and, most significantly, undertaken some 16 jury trials with this particular judge, sitting as either a substantive judge of the Court of First Instance or a Deputy Judge.  She was conversant with the judge’s accent, tone, speed and style in delivering a summing-up and had no difficulty in keeping up with her speed when providing simultaneous translation.  In the present context, the interpreter was also particularly conscious of the fact that she was translating for potentially seven Chinese-speaking jurors, in addition to the appellant.

47.  With regard to Dr Cheung’s report, Ms Woo was not conducting what he has termed “chuchotage”, with all its alleged deficiencies in abbreviation and accuracy.  She was in fact providing simultaneous translation, not only to the appellant but also to jurors.  Accordingly, she is confident she would have proceeded “even more gingerly” and “worked extra hard” to discharge her duty, conscious that she was being listened to by a wider bi-lingual audience.  We do not think, with respect, that Dr Cheung’s report is relevant to our consideration of the issues in this particular case, or that it could afford any ground for allowing this appeal, and accordingly refuse to receive it.

48.  Quite apart from the extensive working relationship which Ms Woo had built up with this particular judge, it is also evident that the judge was careful enough to provide the interpreter with specific written notes in respect of certain directions in advance of her summing up; with many of which directions Ms Woo would no doubt already have been well familiar, having completed about 76 jury trials up to 2016.  As we have pointed out, one of those directions concerned inferences.  Ms Woo’s grasp of the importance and solemnity of her duty is exemplified by the fact, which we have already noted, that at one point she requested the judge to switch off her amplifier[57].  We also note that during examination‑in‑chief and cross‑examination of the appellant, the interpreter would from time to time ask both counsel to repeat a question she did not immediately follow[58].

49.  As for the complaint about the length of time Ms Woo was required to provide simultaneous translation of the summing-up, it is clear from the court clerk’s log, which we have inspected, that the summing-up commenced on 20 June 2016 at 2:05 pm and ran initially until 2:53 pm; a period of 48 minutes[59]. There was then a 10-minute break before the summing-up continued between 3:03 pm and 3:47 pm; a period of 44 minutes.  The case was then adjourned for the day.  The summing-up resumed on 21 June 2016 at 10:11 am and continued until the jury retired to consider its verdicts at 10:31 am; a period of 20 minutes.  With respect, we do not accept the submission that these three sessions of the summing‑up, either separately or together, were beyond the capability of this highly experienced interpreter, nor do we agree that the risk of misinterpretation was thereby exacerbated.  To Mr Cheung’s comment that a bi-lingual speaker would have difficulty providing simultaneous interpretation for more than half an hour, it must be remembered that we are dealing with a longstanding, professional court interpreter, whose daily function and experience over very many years has been to provide translation, often simultaneously to a defendant in the dock, for much longer periods.

50.  Mr Cheung’s response to the obvious competence, experience and conscientiousness of the interpreter concerned was to contend that since there is no record of what the interpreter said during the summing-up, there is no way of knowing whether or not she did in fact make a mistake by recourse to a record of her Chinese interpretation.  This argument was recently dealt with comprehensively by this Court in Gutierrez.  In particular, in addressing the complaint that there was no record in existence of the interpreter’s Spanish interpretation to the defendant in the dock of, among other things, the judge’s summing-up, the Court did not accept that such a record was required either as matter of right or practical necessity[60].  The Court referred to the Canadian case of R v Titchener[61], where it was held that the absence of a video record of how the complainant and another Crown witness in a sexual assault case had given their evidence in sign language did not render the record of proceedings, which comprised the interpreter’s translation of their evidence into the English language, deficient.  The Court in Titchener held, inter alia[62]:

“The appellant’s response is that without a video recording he cannot be expected to be able to establish on appeal that the interpretation is inaccurate. This is only a valid complaint if what he is looking for is a latent defect, that is, a problem unknown to him at the time of the trial and thus discoverable only after viewing a video recording after the trial has concluded.”

51.  Mr Lai has drawn our attention to the decision of a five-judge division of the Court of Appeal of England and Wales, which included Lord Widgery CJ and Edmund Davies LJ (as he then was), in R v Le Caer[63], where the Court did not even have a transcript of the summing-up, because there was no, or no sufficient, shorthand note of it, with the result that the transcript was “hopelessly corrupt”[64]. The Court cited with approval the earlier observations of the Court in R v Elliot[65], that:

“The absence or insufficiency of a shorthand note is not of itself a ground upon which a prisoner can succeed on appeal, nor the existence of a proper note a condition precedent to a good trial. Where, however, there is reason to suspect that there is something wrong in connection with the hearing of a case, the absence or insufficiency of a proper shorthand note may be material.”

52.  Fully adopting this statement, the Court in Le Caer held[66]:

“…the simple fact that there was no shorthand note is not of itself a ground for saying that the conviction is unsafe or unsatisfactory. In order that the appellant may claim that conclusion, he must be able to show something to suggest that there was an irregularity at the trial or a misdirection in the summing-up. Unless there is something to suggest that an error of that kind took place, the absence of a shorthand note simpliciter cannot cause the Court to say that the verdict of the jury was unsafe or unsatisfactory.”

The Court concluded[67]:

“It suffices to say that in the end there is nothing upon which a foundation can be built that the verdict was unsafe or unsatisfactory, there is nothing in this case except the plain absence of the shorthand transcript. That by itself is not enough, and accordingly this appeal against conviction must be dismissed.”

These statements from both Elliot and Le Caer have more recently been approved and applied by the Court in R v Richards[68].

53.  As we have said, there is nothing in the case before us, upon which a sensible foundation can be built that the summing-up was erroneous in law, or otherwise defective.  We also wish to reiterate a point made by the Court in Gutierrez, which would seem to have been rather prescient[69]:

“The decision in Titchener also reinforces the point that it is incumbent on the defence to raise these matters at trial, so that steps can be taken to remedy them, there and then. It is plainly unsatisfactory and unfair to the interpreter, as well as the legal representatives at trial, to raise the matter for the first time at an appeal, sometimes years after conviction, when memories of what happened and what was said at trial will have faded or disappeared. If there is a valid complaint, it should be raised as soon as possible so that it can be addressed.”

54.  We are, in this appeal, concerned with a trial which took place more than 4 years ago, in respect of events occurring almost 6 years ago.  Of course, it is a fresh legal team which is advancing this ground of appeal, Mr Cheung having come into the appeal rather late in the day.  Trial counsel could hardly have taken the point on appeal since he had agreed with the course of action that was proposed; confident, as he has explained from his own perception throughout the trial, that Ms Woo was “a highly competent interpreter”.  It should also be noted that neither trial counsel, who were both experienced criminal practitioners, raised any concern with the judge at any stage about the content of her summing-up.

55.  It must be remembered that the judge was here responding to a request made by a conscientious jury, who were concerned that there be no misunderstanding, given what was at stake.  She resolved the matter in a pragmatic way, believing that the appellant’s interests would be best served by the interpreter providing a simultaneous interpretation of her summing-up, a decision with which defence counsel at trial agreed.  As the Court of Final Appeal reminded us in HKSAR v Lee Ming Tee & Another (No 1)[70], whether a trial is fair is to be “judged in practical and not absolute terms”. 

56.  It is also important to bear in mind the context of the case in which this complaint is now made.  The evidence against the appellant was very strong indeed.  He was found in possession of a bag of dangerous drugs worth, on the street, more than HK$1 million.  He did not dispute physical custody of the bag: he did dispute knowledge of its contents, and thereby possession in its legal sense.  He was seen entering premises on the first occasion, and remaining inside the premises alone, for a period of just under 2 hours (according to the prosecution), or about 45 minutes (according to the appellant).  Accordingly, he did not dispute entering the premises on his own: what he disputed was the length of time he spent inside.  Yet, the appellant claimed that all he had done, for whatever period of time he was in those premises, was to call D2, put down the soup and sweep the floor before leaving. 

57.  Some hours later, he returned to the premises on a second occasion, where he remained for about an hour and a half (according to the prosecution), or about 8-10 minutes (according to the appellant’s VRI[71]), although in evidence he said he did not actually enter the premises at all[72], before leaving with the bag containing the dangerous drugs, the subject‑matter of Count 1.  What was not in dispute is that D2 went to the premises and collected a bag; or that the appellant had a key to those premises[73].

58.  When the police party entered the premises using the appellant’s key, they found D2 squatting on the floor of the living room in the process of packaging cocaine.  The premises were not apparently being lived in.  From the evidence of what was found at the scene, however, it is obvious what the premises were being used for and the appellant, who had been entrusted with a key by D2, his own son, to enter the premises on his own, must have known this.  He subsequently made full admissions to complicity in the manufacturing and trafficking operation that was taking place.  These admissions were disputed, but no complaint is made of the judge’s directions as to how the jury were to approach such evidence.

59.  Realistically, when the respective positions of the prosecution and defence are analysed, the only real issue for the jury in this case was whether the jury could be satisfied so that they were sure that the prosecution witnesses were telling the truth, or whether the appellant’s version of events as to his absence of knowledge (and, therefore, possession) of the drugs in Counts 1 and 3, his lack of complicity in manufacturing in Count 2 and the fabrication of his admissions to all three offences was or might be true.  That issue was repeatedly made clear by the judge in her directions[74]. Plainly, the jury accepted the prosecution evidence and did not believe the appellant.  Once they had decided that they were not prepared to accept that the appellant’s evidence might be true on any of these essential issues, it seems to us, in the circumstances of this particular case, that a conviction was inevitable.

Conclusion

60.  In our judgment, while the procedure adopted by the judge was unusual, and seems to have arisen from the jury’s admirably conscientious and cautious approach to their task, we are satisfied that there can ultimately be no complaint about the integrity of the jury’s verdicts.

61.  It was for the above reasons that the appeal against conviction was dismissed.

[1] Macrae VP.

[2]  Admitted facts, para 1: AB, p 6.

[3] AB, p 171: Counter 50; AB, p 181: Counters 154-158; AB, p 184: Counters 181-186; AB, pp 193‑194: Counters 273‑284.

[4] AB, pp 169-170: Counters 33-38.

[5] AB, p 197: Counter 316.

[6] AB, p 195: Counters 293-294.

[7] AB, p 189: Counters 231-236.

[8] AB, p 196: Counter 298.

[9] AB, p 198: Counters 322-326.

[10] AB, p 199: Counters 328-330.

[11] AB, p 200: Counter 344.

[12] AB, p 240: Counters: 717-722.

[13] AB, p 274Q-S.

[14] AB, p 275F-I.

[15] AB, p 276L-N.

[16] AB, p 276O.

[17] AB, p 276Q.

[18] AB, p 277E-H.

[19] AB, p 278A-C.

[20] AB, p 278J-K.

[21] AB, p 278G.

[22] AB, p 279O-R.

[23] AB, p 278D.

[24] AB, p 296A-D.

[25] AB, p 283C.

[26] AB, pp 291S-293L.

[27] AB, pp 285A-291N.

[28] AB, p 336.

[29] AB, p 385E-G.

[30] AB, p 385H.

[31] AB, p 385I-J.

[32] AB, p 387D-P.

[33] AB, p 387O-P.

[34] AB, p 387T-U.

[35] AB, p 388A.

[36] AB, p 388B-D.

[37] AB, p 388E-G.

[38] AB, p 7K-L.

[39] AB, p 16K-T.

[40] AB, p 16R-S.

[41] AB, pp 40-1N-40-2A.

[42] HKSAR v Apelete (No 1) [2019] 5 HKLRD 574.

[43] Statement of Janet Woo, Appendices 4i-v & ix.

[44] Statement of Janet Woo, p 8.

[45] Statement of Janet Woo, Appendices 5i-vii.  It is interesting to note that the written direction provided to Ms Woo by the judge concerning inferences was: “You are entitled to draw inferences from facts that you find proved but you may do so only if that is the only reasonable inference that can be drawn.”  This corresponds to the direction the judge in fact gave at AB, p 11A-B.

[46] Statement of Janet Woo, Appendix 7.

[47] Statement of Janet Woo, p 7.

[48] Statement of Janet Woo, p 9.

[49] Statement of Janet Woo, p 9.

[50] Statement of Janet Woo, Appendix 8 reproducing AB, pp 40-1M-40-2A.

[51] Extracted and reproduced in Annex 3 to Dr Cheung’s report.

[52] HKSAR v Gutierrez [2020] 2 HKLRD 720.

[53] HKSAR v Kong Lai Wah [2009] 1 HKLRD 284, at [6].

[54] AB, p 11A-C.

[55] AB, p 17M-P.

[56] AB, p 37E-F; p 39O-Q.

[57] AB, p 16K-T.

[58] AB, p 283R-S; p 286G-H; p 299M-N; p 308C-F.

[59] According to the court clerk’s log, the request by the interpreter to turn off the judge’s amplifier took place at 2:28 pm.

[60] Ibid., at [73]-[75].

[61] R v Titchener (2013) BCCA 64.

[62] Ibid., at [31].

[63] R v Le Caer (1972) 56 Cr App R 727.

[64] Ibid., at 729.

[65] R v Elliot (1909) 2 Cr App R 171, at 172.

[66] Le Caer, at 731.

[67] Ibid., at 732.

[68] R v Richards [1996] EWCA Crim J1008-14, 8 October 1996; [1997] Crim LR 48.

[69] Gutierrez, at [76].

[70] HKSAR v Lee Ming Tee & Another (No 1) (2001) 4 HKCFAR 133, at 150D.

[71] AB, p 209: Counter 424.

[72] AB, p 278G.

[73] AB, p 276G.

[74] AB, p 26M-O; p 37E-F; p 39O-Q.