HKSAR v. LUK FU LEUNG

HCMA 357/2022

[2023] HKCFI 2965

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 357 OF 2022

(ON APPEAL FROM KCS 6806 OF 2022)

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JUDGMENT

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1.  The Appellant was convicted after trial of one count of careless driving, and he was fined HK$2,000 and he was ordered to complete a driving improvement course within 3 months.

2.  Prosecution case is very simple. According to the evidence of PW1 and the CCTV evidence from the vehicles’ carcams showed that the Appellant was emerging from a side road onto the first lane of the Waterloo Road upon which PW1 was driving. He failed to keep a proper lookout for the traffic coming from his right on Waterloo Road, proceeded past the give-way lines, and PW1 had to brake abruptly to avoid collision.

3.  The trial was conducted in Chinese. It is also a fact that months prior to the trial, the Defence had written to the Court asking for the trial to be conducted in English. That was refused by the learned Magistrate. However, the learned Magistrate provided interpretation for counsel in the trial.

4.  A problem arose because counsel for the Defence had stated that he wanted to ask his questions in English, however, that was not allowed by the learned Magistrate. The learned Magistrate had insisted on the questions being asked by Defence counsel in cross-examination to be in Punti.

5.  That is the crux of this appeal. It is submitted by the Appellant that because of this refusal by the learned Magistrate to allow questions by Defence counsel in English and to be translated into Chinese, it constituted a material irregularity which impinges on the fairness of the trial for the Appellant.

6.  Ms Go on behalf of the Respondent, conceded that the learned Magistrate did err in ruling as he did in relation to interpretation of questions by counsel for the Appellant at trial.

7.  However, Ms Go’s view is that it was an irregularity but not a material one, because it is apparent from the transcript that the Defence counsel did proceed in asking questions in Cantonese. Therefore, the proceeding were not unfair to the Defence.

8.  The issue is, as Defence counsel had expressed to the learned Magistrate, he may feel hampered in the phrasing of his questions in Cantonese. Therefore, at the end of the day, although he did ask questions in Cantonese for PW1, it is of concern that the Defence counsel was not given the opportunity to ask the questions in the language he preferred, followed by the interpretation by the interpreter who was in Court to assist him.

9.  It is a material irregularity leading to unfairness for the Appellant at the trial. Because the evidence is based on the credibility of the Prosecution witness, and of course, coupled with the video cams from the cars. It is important that Defence counsel be able to ask the questions in the language he is proficient in.

10.  I do not understand why the learned Magistrate denied the service of the interpreter for the Defence counsel’s questions to PW1. And because of this, I was inclined to order a retrial.

11.  However, as Mr Kuan has pointed out, the Appellant has already completed his driving improvement course. To order a retrial maybe unfair to him because he has already completed part of the sentence.

12.  Ms Go, therefore, do not wish to pursue this question of the retrial. In light of that, I am therefore, persuaded that to ordering a retrial is not in the best interest of the parties. So, I will allow the appeal on this point.

13.  The Appellant’s appeal is allowed. I allow the appeal against conviction and also the sentence will no longer stand.