R. v. THAKOEN GWITSA THAPORN THONGJAI

IN THE COURT OF APPEAL

1994, No. 608
(Criminal)

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H E A D N O T E

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Murder.

Accused was a Thai - spoke Thai in interview with police under caution - statement interpreted into Cantonese - interviewing police officer's words interpreted from Cantonese to Thai.

Interpreter's accuracy not questioned.

Interviewing police officer's evidence of what the accused said as interpreted to him from Thai to Cantonese - not hearsay.

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Unavailability of a Crown witness whom the accused claims might help his defence.

IN THE COURT OF APPEAL

1994, No. 608
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. The applicant faced two counts, one of robbery and the other of murder.

2. He was acquitted of robbery but convicted of murder. He now applies for leave to appeal against his conviction.

3. The applicant was a Thai on a visit to Hong Kong with one Niran Singh.

4. The undisputed facts were that at about four o'clock in the afternoon of 22 January 1993 (it was the Lunar New Year's Day), Mohan D. Tolani (the victim) was found killed in his apartment, Flat A, on the seventh floor of Yin Yee Mansion, Robinson Road. Having forcibly entered the apartment the police found the victim lying face downwards in the dining area. It appeared that he had been brutally attacked and his blood spilled over a large area. The police found the applicant hiding in the wardrobe of the master's bedroom. He was dressed only in shorts. He had blood on his body and he was trembling.

5. The prosecution accused the applicant of having murdered the victim. The line of defence adopted by the applicant was that he and Singh entered the victim's apartment together, and it was Singh who had done the killing and left the applicant to take the responsibility. He was alleged to have told the police that he had followed the victim into the latter's apartment in order to rob him and then struck him down.

6. In this connection, the judge reminded the jury in his summing up that over $5,000 in the victim's possession at the time of his death was not taken away. Drawers and cupboards in the apartment were found opened but nothing was taken.

7. There was strong evidence that the victim's wife, Laxmi Tolani ("Laxmi") and Singh were cousins, and that they were close friends. But she and the victim were not on good terms. Counsel for the applicant, Mr Buchanan, suggested in his address to the jury that the applicant had no motive to kill the victim, there being no evidence that they even knew each other. Mr Buchanan argued that Singh had a motive to kill the victim in order to get his hands on Laxmi and on the victim's money. Laxmi too had a motive, Mr Buchanan suggested, because she wanted to be rid of him for he had treated her badly.

8. Shortly before the discovery of the victim's dead body, sometime after three o'clock that afternoon, a Mr Wong, the neighbour of Mr and Mrs Tolani, saw a man enter the victim's apartment, apparently opening the door by himself. At about four o'clock, Mr Wong and Ms Mo, a neighbour in another apartment, knocked on the door of the victim's apartment because it was very noisy inside, but there was no reply. Mr Wong heard the sound of groaning coming from inside the apartment. Ms Mo then went downstairs to alert the watchman but could not find him. Mr Wong then returned to his own apartment but came back to the victim's apartment about fifteen minutes later. He heard shouts of help and he rang the doorbell. Then he went downstairs to alert the watchman and he telephoned the police.

9. Ms Mo's evidence was that at about 4:10 pm she heard sounds of banging and breaking glass coming from the victim's apartment. She rang the doorbell the sound of which she could hear. She also heard two voices, one being the voice of the victim, the other was a younger or softer voice, she could not say whether it was a male or female voice. It sounded to her like two people arguing, then she heard groaning noises. Both Mr Wong and Ms Mo heard the victim say in English, "Fetch the police", and another voice say in English, "No".

10. When the police entered the apartment, they found broken glass, broken bottle-tops, bloodstained clothing in a basin, a hammer in the bathroom and the applicant's passport and travel documents inside the pocket of a coat which covered the applicant as he hid in the wardrobe.

11. There was also evidence, from the Immigration Department, that the applicant and Singh had arrived in Hong Kong on the same flight on 19 January. The arrival and departure cards of both men were filled in in Singh's handwriting. Singh left Hong Kong for Macau on 22 January.

12. It was Police Constable 16865 who formally arrested the applicant and cautioned him through one interpreter. The applicant made a statement in Thai, which was translated to the Constable. According to the translation, the applicant admitted to following the victim into the apartment with the intention of robbing him, but during a dispute, he struck the victim unconscious with a glass bottle and a hammer.

13. Forensic evidence relating to the victim was that some injuries on him were caused by broken glass and some injuries were consistent with having been inflicted by the swinging blows of a hammer. The potentially fatal wound was the penetrating wound on the neck.

14. The applicant gave evidence. He said that he and Singh visited the victim's apartment together and Singh opened the door with a key he had with him. They both drank some beer, after which he felt drowsy and went into a deep sleep on the sofa. He woke up lying on the floor, dressed only in his underpants and holding a hammer in his hand. He had blood on his body. Next to him lay the victim already dead. He trembled with fear, washed himself, changed into a pair of shorts, and having covered himself with Singh's jacket, he hid in the wardrobe.

15. There is no suggestion that the applicant's evidence was not fully put to the jury.

16. Both Singh and Laxmi have since left Hong Kong. The police had been unsuccessful in securing Laxmi's attendance as a prosecution witness at the trial.

17. Mr Buchanan argues four grounds of appeal, the gist of which is set out below.

18. Firstly, it is said that the learned trial judge wrongfully failed to accede to the defence application either to stay or adjourn the proceedings as the unavailability of Laxmi to give evidence meant that "crucially important evidence was not available both to support the defence case and the applicant's credibility". It is also the argument here that the applicant had been deprived of his rights guaranteed by Articles 10 and 11(2)(a) of the Hong Kong Bill of Rights Ordinance, Cap.383.

19. The second ground complains that the trial judge misdirected the jury by suggesting that Singh could never have been in the victim's apartment. It was suggested that Singh might have left the seventh-floor apartment through one of the windows.

20. Third, it is contended that the judge wrongfully (i) allowed the police witnesses to give evidence of statements allegedly made by the applicant, and (ii) made extensive references to such statements in his summing up.

21. The last ground is that the applicant was denied a fair trial, alternatively a material irregularity arose in the course of the trial in that the applicant was denied his right to properly present his evidence to the jury as the judge erroneously prevented the applicant from telling his own story by wrongful and inappropriate interventions including disallowing the applicant to give admissible evidence.

22. We are indebted to Mr Buchanan and Mr Bruce QC for their detailed written submissions, which we have considered with care.

23. We now deal with the grounds of appeal.

The First Ground

24. Laxmi made three statements to the police, on 13 and 21 January, and 1 February 1993 respectively. She said on 21 January that she and the victim had a good relationship, but on 1 February she complained they did not have a good relationship. She also spoke of her friendship with Singh which the judge described as "intimate". She further stated that she had seen Singh on 22 January 1993 in the afternoon. She had been in her flat earlier but then went to her uncle's place with her children in Kowloon. There is nothing in the three statements which indicates that Laxmi would support the defence case or the applicant's credibility.

25. The trial commenced on 12 September with a voir dire. On the application of defence counsel on 27 September the case was adjourned to 11 November in order to accommodate the professional commitments of trial counsel. The trial then commenced with a jury. Prior to this there was an aborted trial. It would appear that Laxmi was present and available to be called as a witness. That trial was aborted because the applicant chose to sack his then counsel. A witness summons was delivered to Laxmi through her domestic helper. She was away from Hong Kong on 11 November. The judge was satisfied that the police had taken all reasonable steps to ensure Laxmi's appearance but failed.

26. The judge in giving his ruling on 22 November 1994, said this:

"It remains highly unlikely that either Mrs TOLANI or Mr SINGH would assist the defendant by admitting their parts in any plot to kill the deceased and, therefore, the defendant cannot claim their absence causes him an injustice. If they were his co-accused, as they might well have been, he could not have looked to them for assistance.

He is really in the position of a man who has been arrested and charged and tried for an offence while others possibly involved have escaped. An application to stay would be most unlikely to succeed in these circumstances."

27. We respectfully agree.

28. Having considered Laxmi's statements and the defence case, we do not think the applicant can complain of any injustice or prejudice.

29. The next contention is that his rights under Articles 10 and (11)(2)(a) of the Bill of Rights Ordinance had been taken away from him. Article 10 concerns the right to a fair trial. Article 11(2)(a) provides that the accused has the right to examine "any witnesses against him". We do not have here a situation where the applicant was deprived of his right to examine a witness against him. Article 11 is silent about witnesses not called by the prosecution.

30. There is nothing in this ground of appeal.

The Second Ground

31. Mr Buchanan argues that it was perfectly feasible that Singh had left by one of the windows in the flat, yet that possibility was never left to the jury. Bearing in mind that the apartment was on the seventh floor, the suggestion, as Mr Bruce says, is fanciful. We agree.

32. There is nothing at all in this ground of appeal.

The Third Ground

33. The applicant made a number of cautioned statements to or in the presence of three police officers, through a Thai/Cantonese speaking interpreter. The evidence was that the interpreter faithfully interpreted statements made by the applicant in the Thai language to the officers. Similarly she interpreted what the officers said in Cantonese to the applicant.

34. At trial the officers gave evidence of the applicant's statements as interpreted to them.

35. It is contended on behalf of the applicant that the interpreted statements were hearsay and thus not admissible.

36. In the present case there was strong evidence to show that the interpreter was skilful in both languages. What was said was written down by a police officer. She then checked the writing and found it to be an accurate record of what had been said by the police officers and the applicant.

37. The point is decided in Gaio v. The Queen (1960) 104 CLR 419 where Dixon, C.J. said (at 421):

" In my opinion this appeal should be dismissed for the reasons given by Fullagar, J. which I have had the advantage of reading. I think that the translation word by word or sentence by sentence by the interpreter is not an ex post facto narrative statement of an event that has passed within the rule against the admissibility of hearsay but is an integral part of one transaction consisting of communication through the interpreter. It is therefore enough if it is proved that what he did was to interpret faithfully. The version as spoken and heard in one language or the other - in the present case English - can then be given in evidence."

38. In England, a similar point was taken in R. v. Attard (1959) 43 Cr App R 90. The Headnote reads:

" The prosecution proposed to call evidence by a police officer of an interview which he had conducted with the prisoner through an interpreter. The defence submitted that, since neither the police officer nor the prisoner could understand what the interpreter said to the other, the evidence of the police officer was inadmissible as being hearsay, and that only the interpreter could give evidence of the questions which he put to the prisoner on behalf of the police officer and of the answers given to him by the prisoner in the prisoner's own language.

Held, that the submission was correct and that the evidence of the police officer in relation to the interview was inadmissible."

39. Here the interpreter was not called to prove a faithful interpretation and the evidence of the police officer was rejected. It was otherwise in Gaio's case. Similarly in the present case the evidence of the police officers to what the interpreter had said in Cantonese as an interpretation of what the applicant had said in Thai, was not hearsay given that the interpreter had sworn that he truthfully interpreted. The interpreter was a mere conduit between the applicant and the police officers.

The Fourth Ground

40. In the course of the applicant's evidence-in-chief, the judge on seven or eight occasions felt obliged to interrupt counsel lest hearsay be introduced into evidence. It is clear from his interventions that he was well aware of the difference between an out of court statement, made by a person not called as a witness to be introduced in evidence with the object of establishing the truth of what was said, and a similar statement introduced only to show the fact that the statement was made.

41. Nothing in the transcript of evidence shows that the learned judge had done anything to prevent Mr Buchanan as defence counsel from presenting the defence case or to prevent the applicant from giving his evidence in his own way. The sole object of the judge's interventions was to stop defence counsel from eliciting hearsay evidence from the applicant. At no time during those interventions did Mr Buchanan explain to the judge the object of introducing out of court statements made by those not called as witnesses: not until the following exchanges:

"Q. All right, what happened next ?

A. After I had taken off my socks and shoes, Nid came in.

Q. Yes, carry on.

A. I asked him to go to toilet.

Court : I think you have to be careful, Mr Buchanan. You should not be ......

Mr Buchanan : My Lord, he can give evidence about what he asked.

Court : Mr Buchanan, you know perfectly well what these are concerned with.

Mr Buchanan : I am not asking for the truth of what was said, my Lord. It is simply that what was said."

42. As Mr Bruce argues, rather than seeking to engage the judge, defence counsel simply moved on. It was only at the exchanges quoted above that Mr Buchanan answered the judge's queries, but after that there were no more interventions by the judge which formed the subject of this ground of appeal.

43. Still under this ground, Mr Buchanan contends that the judge had wrongly interrupted the applicant's evidence and thus prevented him from properly giving his evidence, i.e. from telling his story in his own way. The transcript does not bear this out. The judge did no more than to ensure that hearsay should not be introduced into evidence before the jury. The judge's conduct in this regard was perfectly proper.

44. For the reasons given above, the application for leave to appeal is dismissed.