HKSAR v. XIAO CHUNQIANG

CACC 116/2022

[2025] HKCA 323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 116 OF 2022

(ON APPEAL FROM HCCC NO 337 OF 2020)

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JUDGMENT

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Hon M Poon JA (giving the Judgment of the Court)

Introduction

1.  The applicant was charged with the murder of his wife, Madam Wang Fenggui, on 14 November 2019, contrary to common law and punishable under section 2 of the Offences against the Person Ordinance (Cap 212).  He pleaded not guilty to murder but pleaded guilty to manslaughter by provocation, which was rejected by the prosecution.  After a trial before D’Almada Remedios J (“the judge”) and a jury, he was convicted by a majority verdict of 5:2 and sentenced to life imprisonment.

2.  The applicant now seeks leave to appeal against his conviction.

3.  After having heard submission from the parties, we found against the applicant on all grounds. At the end of the hearing, we said we would hand down our decision and reasons for decision in due course.

The prosecution case

4.  Much of the facts were not disputed.

5.  The applicant and Madam Wang Funggui (“the deceased”) got married in Hong Kong in 2017.  They had no children.  At the material time, the deceased lived in Room 2209, Sheung Fu House, Upper Ngau Tau Kok Estate, Sau Mau Ping, Kowloon, Hong Kong (“the Flat”).  The applicant did not dispute that he killed the deceased with a chopper in the Flat in the early morning of 14 November 2019.  He then left Hong Kong for the Mainland via Lok Ma Chau Immigration Control Point at 07:22 hours on the same day.

6.  That morning, the deceased’s sworn godmother, Madam Kwok (“PW1”), contacted the police after she failed to contact the deceased that morning and failed to gain access to the Flat.  The deceased was found lying on the ground when firemen broke into the Flat.  She was certified dead at the scene.

7.  A subsequent autopsy performed by the forensic pathologist concluded that the cause of death was cut wounds on the neck. Multiple cut wounds over the face, left side of the neck, left arm, left hand, right forearm, left lower back of the chest and back of the head were found on the deceased’s body.

8.  Various witnesses testified as to what was heard in the early morning of 14 November 2019, and what was witnessed when they went to the Flat to play mahjong earlier on.  One of them testified about a phone call from the applicant around 16:00 hours on 14 November 2019^[1], telling her that he had chopped the deceased (using the Hakka word for “bitch”) many times until she did not move, and his mind had probably been out of control.  The applicant was told to surrender himself.  The deceased’s daughter with her former husband, a Madam Li, testified of a phone call that she received from the applicant at about 16:02 hours on the same day^[2] , telling her that he had killed her mother.  He said he was very angry at that time.

9.  The applicant was arrested for murder upon his return to Hong Kong from the Mainland at 16:16 hours on 14 November 2019.  He was taken to Ta Kwu Ling Police Station, where Detective Sergeant 58521 (“PW6”) arrested the applicant again at 18:05 hours. Under caution, the applicant said in simple Chinese, “I killed my wife, Wang Fenggui, with (a) knife at about 6 o’clock this morning and then returned to Shenzhen.”  (the “verbal admission”).  This was recorded in PW6’s police notebook (“Exhibit P52A”)^[3], and was post-recorded subsequently in the evening of the same day, with the assistance of a Hakka dialect interpreter, Mr Yeung Hon-bun (“the Interpreter”).  The post-record was translated to the applicant and the applicant said, “I have nothing to correct”.

10.  An auxiliary police officer (“PW7”) gave evidence that, in September 2019, he attended the Flat to deal with a case of dispute where the applicant reported that the deceased owed him a piece of jewellery and some unspecified amount of money, which the latter denied.

11.  All three grounds of appeal advanced relate to interpretation: the first two concern the quality of interpretation during the video-recorded interview (“VRI”); the third concerns the inadvertent use of an Uncertified English translation of the transcript of the VRI at the trial.

(The VRI)

12.  The VRI which took place between 23:29 hours on 14 November 2019 and 02:06 hours on 15 November 2019, was conducted by PW6 with the assistance of the Interpreter.  By paragraph 9 of the admitted facts, it was admitted that the certified English translation of the transcript of the VRI produced at trial (exhibit P78A) was “an accurate record of the VRI and the translation is not in dispute” and that the “fairness and voluntariness of the VRI” were not in dispute^[4].

13.  From time to time during the VRI, the applicant complained about the competence of the Interpreter^[5].

14.  The gist of what the applicant admitted in the VRI was as follows.  The applicant met the deceased in 1995 in Xingning when she worked in his hair salon.  She married her former husband and after he passed away, she married the applicant in 2017^[6]. Since then, the applicant came to Hong Kong many times on the strength of his two-way permit and resided in the Flat with the deceased.  The deceased worked as a cleaner in Upper Ngau Tau Kok Estate and earned $13,000 monthly.  The applicant described the deceased as “more irascible” than he was and they always quarrelled at home.  On one occasion he had to make a report to the police.  He said that he was often scolded by the deceased for not having a job and for misplacing things when he cooked^[7]. He last came to Hong Kong in October 2019 but left for the Mainland on 31 October 2019 after a quarrel.  He was reluctant to return to Hong Kong but the deceased phoned and pleaded with him^[8].

15.  He returned to Hong Kong on 11 November 2019 and stayed in the Flat with the deceased.  He said that he was told by the deceased on the next day that she had slept with “an old person who would die soon”, which made him uncomfortable.  On 13 November 2019, he was told by the deceased to buy some fruit.  He did so and upon his return to the Flat, the deceased scolded him for buying too many fruit and too little pork.  The applicant rebuked but she kept scolding him^[9]. The quarrel stopped when four friends of the deceased came to the Flat to play mahjong^[10]. Those friends were charged $200 for playing mahjong in the flat with a meal provided.  He and the deceased did not play.  He played with his mobile phone and the deceased watched television.

16.  The applicant said that after the guests left the Flat at about 01:00 hours on 14 November 2019, he slept with the deceased in the lower bunk bed together.  He asked why she treated him this way.  He knelt before her and begged her not to be so “heartless”, that she had caused him to leave his former wife^[11]. The deceased told him to go to hell and called him “an asshole” in Cantonese.  He asked her what it meant and she replied that it meant “sonless bastard” ^[12].

17.  She kicked and punched him and refused to let him lay close to her, causing him to fall out of the bed.  He got irritated and dragged her off the bed with the quilt.  She kept shouting, “It’s irreversible, asshole!”  The applicant became furious, and as they were on the floor close to the kitchen, he got up, grabbed a knife and chopped her indiscriminately.  He did not know where on her body he chopped, his mind was in a mess.  He chopped her until she stopped moving.  He also hit the deceased with a stool on the head once^[13].  He said that the quarrel started at around 01:00 hours and went on intermittently and he struck her at around 06:00 hours.

18.  After the attack, the applicant changed into fresh clothes, washed the blood from his hands and left the Flat. He locked both the wooden door and the metal gate of the Flat^[14] and went to Shenzhen.  He denied having called anyone whilst he was in Shenzhen.

(The re-enactments)

19.  On 15 November 2019, the applicant voluntarily participated in five video-recorded re-enactments. The first re-enactment was conducted in the presence of the Interpreter.  The applicant complained that the Hakka dialect spoken by the Interpreter was not accurate and demanded a change of interpreter^[15]. As a result, the second to fifth re-enactments were conducted with the assistance of another interpreter^[16].

The defence case

20.  The applicant elected not to give evidence and did not call any witnesses.  He relied on his account in the verbal admission, his VRI and his re-enactment videos.  The defence case was that the applicant was provoked by the words and acts of the deceased immediately before the killing.

21.  Defence counsel, in his closing submission, questioned the competence of the Interpreter and invited the jury to be cautious^[17]:

“And the police did ask him in detail. And you look at his response, giving answer right away, save and except when the translation got a problem. Of course, the members of the jury would be looking at the video-recorded interview and in particular the transcript. When you read the transcript, I would urge you to look at it with care. On the sequence of question and answer, were like this: the policeman asked a question in Punti, because Cantonese does carry a lot of different dialect, but Punti and 白話, or they call it. Okay. And then the translator supposed to translate into the Hakka, or 興寧 Hakka, and then the defendant, upon listening to the Hakka question, didn’t (sic) answer in Hakka.

The translator, interpreter, supposed to translate correctly and completely the answer in Hakka, change it into Punti, so that the policeman can understand. But if you looked at the transcript, what is the transcript? Someone, another one with the High Court qualification, the certification, the clarification, to listen to all these people said; the policemen, the interpreter and also the defendant, and then put all these things in writing. Then you can compare whether the interpreter at the police station was doing his job properly, whether he was able to translate the question of the police into proper Hakka and then translate back the Hakka answer to the police.

I don’t want to trouble you, but sometimes I need to. Just put one, two or three examples so that you can know, understand what I mean. For the record of interview, the first example would be counter 2027. In Chinese, of course, in Chinese. The counters are the same, yes. Now, 2027, with the alphabet C for Charles, that means the remarks by the defendant, and you can read it yourself, you see that -- in Hakka said, “And so we retaliate and both of us were rolling”, and definitely they were retaliation. In Chinese, “咁樣還擊, 因為大家都滾緊, 反擊絕對有嘅, 係嗎?”

So the answer in Hakka was there were striking back. Yes.

…

…Translation was, “Well, strike back because we were rolling.” Certainly there were acts of striking back I think, and the translation was, “What, no striking back.” Just the opposite. It happens that we are here, so a few pages back, another example, a few page(?), 1977, 1-9-7-7. 1977, again, C for Charlie, that’s the defendant’s words in Hakka, “She did fend me off.” So it’s a definite answer. “佢有講嘅”. But when it comes to the translation, 1978, the certainty became a possibility, “Probably, yes.” I’m not sure why the -- or what was in the mind of the translator there, to give some sort of discount to the original wordings.

I can tell you there are a lot more but I don’t want to waste your time. You can look at it yourself. Maybe one more example, 313 up to 448. From 313 to 448. You can read them yourselves upon your retirement. The policeman asking the defendant where he knew the deceased. The defendant kept on saying it was at Yunan, 雲南, but the translation was Yuen Long, in Hong Kong. So the police got the conclusion that, oh, you knew the deceased in Yuen Long and that one. I can tell there, my counting was more than 50 errors, got this.

So the caution is when you read the -- unless some of you can understand the Hakka when listening to the tape, to the video, otherwise, if you are reading this transcript carefully, whether the question of the police has been properly translated.  And then it was the answer of the defendant that mattered, not the wrongful or inaccurate translation by D for Delta.  This Mr D or Mr Yeung, got some mistakes.  That is a caution.”

The summing-up

22.  As the Interpreter’s competence in the VRI assumed a prominent feature, the judge specifically directed the jury on the matter before the playing of the VRI^[18], as well as in her summing-up^[19]:

“Let me turn to the video-recorded interview. From 2329 hours on 14 November 2019 to 0226 hours on 15 November 2019, the defendant voluntarily participated in a video-recorded interview conducted by Detective Sergeant Chin and Detective Police Constable 10992, Tsoi Kim-hing, and in the presence of a Hakka interpreter, Mr Yeung Hon-bun. Whilst the defendant has not given evidence before you, the defendant had in his interview with the police answered questions and provided a detailed account of what he said had occurred in the days before and the day and night of the murder. The defendant’s account sets out the defendant’s defence to the effect that whilst he admits to unlawfully killing Wang, he did because of words said and acts done by Wang. Mr Leung in his closing speech said to you that you should read the transcript with care. As you are well aware, the interviewer, who was the Detective Sergeant Chin, PW6, questioned the defendant in Cantonese, which was interpreted by the interpreter, Mr Yeung, into Hakka. The defendant answered the question put to him in Hakka which was then translated into Cantonese. Some errors in translation by the Hakka interpreter have been pointed out to you by Mr Leung when the interpreter translated it from Cantonese to Hakka or from Hakka to Cantonese. I had informed you during the trial before the video-recorded interview was played to you in court, that it is important that you follow the bold writing in the certified transcript which indicates the words in Hakka. The defendant, remember, spoke in Hakka. The questions were put to the defendant in Hakka and he answered those questions in Hakka. The questions asked in Cantonese by the detective sergeant and the translated answers of the defendant into Cantonese by the interpreter may not be accurate. You may note that some statements made by the defendant in Hakka were not even translated into Cantonese by the interpreter. Although you should have regard to the whole of the video-recorded interview, the important parts of the words spoken in Hakka to the defendant and the answers and statements made by the defendant in Hakka. What is not evidence of what the defendant says is the translation by the interpreter of the defendant’s answer in Cantonese.

Let me now turn to the re-enactment videos. I am sorry, I will just go back. Let me just turn to the aide-memoire of the -- no, sorry, re-enactment videos. On 15 November 2019, the defendant under caution took part in a scene of crime re-enactment. That is the re-enactment conducted by Detective Sergeant Chin and DPC10992. There were five re-enactment videos conducted with the defendant between 1611 to 1936. After the first re-enactment conducted at the Sau Mau Ping police station, the defendant requested to change the interpreter Yeung Ho-bun as he was not satisfied with Interpreter Yeung. The police then arranged another Hakka IT, Madam Lee Chui-wah, to conduct the case re-enactment with the defendant. The defendant, you heard, spoke with her on the phone and told Detective Sergeant Chin that he was satisfied that Lee act as the interpreter.

Let me now turn to the aide-memoire of the video-recorded interview and re-enactment given to you by Mr Leung in his closing speech.  Mr Leung has given to you in his closing speech without objection by Mr Chan an aide-memoire to save you time in writing down the particular parts in the VRI and the re-enactment videos that the defence wishes to bring to your attention.  It is important that I tell you, as I told you when this was given to you, that the aide-memoire is not evidence.  It also does not bear more importance than when Mr Chan brought to your attention orally in his closing speech some counter numbers in the VRI and references in the re-enactment videos.  You should take into account what both counsel have addressed you on.  Let me remind you that the evidence is the whole of the VRI and the re-enactments and what was said in them.  You should take into account everything said by the defendant in the interview and the re-enactment.”

Grounds of appeal and submissions

23.  The applicant was represented by Mr Phil Chau SC and, with him, Mr Andrew Lau.

(Ground 1)

24.  Ground 1 complains that the Interpreter overstepped the boundaries of his duties in the VRI by insisting that the applicant had to answer questions from the investigating officers[20], albeit that it was clear from the VRI that the applicant had complained at an early stage that he could not catch what the Interpreter said[21]. He further submitted that dialogue between the sergeant, the Interpreter and the applicant regarding whether the applicant understood the Notice to Persons in Custody[22] showed that the applicant might not have understood his rights under the Notice to Persons in Custody^[23].

25.  It was submitted with the state of the interpretation as it was, the insufficiency in the judge’s directions compromised the applicant’s right to a fair trial.

(Ground 2)

26.  Ground 2 complains that in light of the various errors and omissions in the translation by the Interpreter in the VRI, the admitted fact relating to the accuracy of the VRI and the translation could be misleading to the jury.  The failure of the judge to point out the various inadequacies of the translation by the Interpreter deprived the applicant of an opportunity to put his defence properly before the jury.

(Ground 3)

27.  Ground 3 was added only after the leave hearing before the Single Judge on 11 April 2024 when it was discovered that whilst the Certified English translation of the VRI transcript was admitted into evidence as P78A, the Prosecution inadvertently arranged for the Uncertified Translation of the transcript to be bolded and placed before the jury.  Mr Chau complained of the use of the word “irreversible” in the Uncertified Translation as opposed to “irretrievable” in the Certified Translation.  Mr Chau contended that the inaccuracies led to the defence case not being properly put before the jury, causing the trial to miscarry.

The Respondent’s reply

28.  Mr David Chan SADPP and, with him, Mr Glen Kong SPP, appeared for the Respondent.

(Reply to Ground 1)

29.  Mr Chan submitted that by not disputing the fairness and voluntariness of the VRI[24] and relying on the contents of the entire VRI to advance the defence of provocation, there was simply no question of the applicant being allegedly pressurized by the Interpreter to give answers or that he did not understand his rights during the VRI.  The relevant parts of the VRI, taken into consideration in its context, do not support such allegation[25].  Instead, the fact that sometimes the applicant gave his answers even before the questions were translated by the Interpreter indicates that he understood Cantonese (Punti).  In any event, the misinterpretation or omissions by the Interpreter in the present case were immaterial and the present case can be distinguished from HKSAR v Moala Alipate [26] and HKSAR v Chan Ka-chun [27].

(Reply to Ground 2)

30.  Mr Chan contended that Defence counsel was well aware of the minor shortcomings in the interpretation in the VRI and such did not prevent the defence from putting forward their case of provocation.  In fact, Defence counsel managed to extract 76 items in the applicant’s answers in the VRI and set them out in an aide-memoire to put forward the applicant’s case of provocation.[28] Defence counsel in his closing speech told the jury in unambiguous terms that the only defence was one of provocation:

“Unlawful killing? No dispute. Causing death? No dispute … The only issue is provocation…”[29]

31.  The judge’s direction asking the jury to be vigilant and to focus on the applicant’s answers given in Hakka in the VRI (transcribed in bold) and not the translated answers by the Interpreter was sufficient in the circumstances of the present case.

(Reply to Ground 3)

32.  Mr Chan accepts full responsibility for the inadvertent introduction of the Uncertified Translation into evidence and that there were differences between the Certified and the Uncertified translations. An examination of the differences revealed mostly typos and/or grammatical errors which were minor in nature and would have no bearing on the trial.  The only so-called “real” discrepancy is the word “irreversible” used in the Uncertified Translation as distinguished from “irretrievable” in the Certified Translation. In any event, it was submitted that, taking into the context where it appeared, it was not a material discrepancy and was nowhere near to a material irregularity at the trial: HKSAR v Lam Hing-chit [30].

Discussion

33.  This appeal turns on a narrow compass relating to the quality of interpretation of the Interpreter who assisted in the taking of the VRI from the applicant and whether such substandard interpretation rendered it impossible for the applicant to advance his defence of provocation. Before we proceed to deal with the grounds, it is useful to set out some procedural history.

34.  We noted at the outset that although at an early Case Management Hearing on 11 January 2022, Defence counsel indicated to the court that the admissibility of the VRI would be challenged[31], he retracted from that position at a later Pre-Trial Review, referring to a “so-called strategic motive”.  Defence counsel indicated that he no longer wish to challenge the VRI and sought to have the entire VRI admitted “as the defence case”^[32].

35.  The VRI was conducted in Cantonese with the assistance of the Interpreter, as the applicant spoke Hakka.  The transcript of VRI, in Chinese (P78) was translated into English (P78A).  They were admitted into evidence by way of admitted facts[33]. Each question and answer at the VRI was supposed to go through the following process: the sergeant asked a question in Cantonese; the Interpreter translated that into Hakka; the applicant answered in Hakka, the Interpreter translated the answer into Cantonese.  To give an example:

“4. A: Can you state aloud your full name?

5. D: [Hakka] Now, please state aloud your name –your name –your name.

6. C: [Hakka] XIAO Chunqiang.

7. D: XIAO Chunqiang.” 

(A is the Sergeant, C is the Applicant and D is the Interpreter)

36.  At the Pre-Trial Review, defence counsel told the judge that there were words or parts of the VRI that might not have been accurately translated.  He said: “…so when the jury or when your Ladyship read the transcript word by word, sometimes you can see the translator was not at all doing his job, but there’s no issue there”, “because the defendant was able to express all he wished to say”.[34]

37.  Apart from directing the jury in the summing-up as we quoted in paragraph 22 above, the judge had also given a direction during the trial as to how the jury should read the transcript of the VRI:[35]

“Court: Members of the jury, you have the transcript before you in both Chinese and English. Now, I would advise you to --although you will be listening in Chinese, obviously the interview was conducted in Cantonese and Hakka, interpreted to Hakka, but the transcript is a certified translation of what’s said in Hakka.

So my direction to you would be to read the English because the English, you will see, has the certified translation and it is important at this stage that I tell you that the bold -- the black -- if you turn to tab 6, if you just pick up anywhere, first of all, perhaps I -- turn to the first page, you’ll see that the persons are indicated by A, B, C, D. So, A is this officer, Sergeant, B is the Police Constable 10992, C is the defendant, and D is the interpreter.

Now, if you just open up somewhere, you will see where there’s a D and a C, it is black, bold, dark typing. Now, members of the jury, that is important for you to concentrate on because, importantly, what the interpreter translates to the defendant is what he hears, not what necessarily the police in Cantonese is saying. That’s one matter.

Secondly, the answer the defendant gives is important,  not the -- necessarily the translated answer by the Hakka interpreter.  So please concentrate your mind on the black or the bold --certification in the transcript because that is what is said to the defendant and what the defendant answers. …”

38.  During the Prosecution’s closing speech, Mr Chan asked the jury to focus on the parts which were not bolded[36].  The judge interrupted and told him that it was the bolded parts that the jury had to concentrate on because “that is what the defendant hears and that is what the defendant speaks”[37]. Further discussions ensued on completion of the Prosecution’s closing speech. Defence counsel told the judge that he would wish to address the jury about the standard of the translation at the police station during the VRI as there were at least 50 translations which were not accurate or something wrong.[38]  The judge said:

“…what is important here is what the defendant says, what his answer is, not what is translated or made sense of by the interpreter. That is not the answer. The answer is what the defendant gives, that’s the evidence…

There are numerous examples in the VRI where the interpreter does not even interpret what the defendant says, and he said a lot of things and he’s not interpreted. And never mind he’s not interpreted, it is important that the jury read what the defendant’s answer is…”[39]

39.  With that background we now turn to deal with Grounds 1 and 2 together. Mr Chau pointed to the parts which he complained the Interpreter to have overstepped the boundaries of his duties in pressing the applicant for an answer:[40]  

“331. D: Er– she came to Hong Kong after I -- I had got acquainted with her. Her - - [Hakka] Say it, say it.”

“346. B: Would you please answer, okay?

347. D: [Hakka] (You) have to answer.”

“352. D: [Hakka] We are now video-recording, we have to record the sound now. [C: Okay, okay, okay.] Say it out if –if you want to answer.”

“371. D: [Hakka] you know where her hometown is?

372. C: [Hakka] I know.

373. D: [Hakka] Say it.

374. C: [Hakka] Hunan.”    

40.  As we pointed out at the hearing, it was not helpful to cherrypick the occasions that the Interpreter said to the applicant “say it say it” in isolation.  When placed in context, the reason why the Interpreter told the applicant “say it, say it” at counter 331 was because the applicant’s answer as to the whereabouts of the deceased’s ex-husband was interrupted by the Interpreter’s translation and the Interpreter was simply asking the applicant to continue with his unfinished answer.  In the few previous answers before counter 347, the applicant simply answered “Hm” (counters 343 and 345) and having been reminded by PC 10992 to answer, what the Interpreter did was simply to translate what PC 10992 said to the applicant, that he had to answer instead of giving the “Hm”s.  In fact the Sergeant also said at counter 352 that as they were video-recording, the sound had to be recorded and he had to say it out (meaning not just an “Hm”) if he wanted to answer.  Lastly, the “say it” in counter 373 was when the applicant was asked if he knew where the deceased’s hometown was, he said he knew and the Interpreter asked him to say it.  When viewed in the entirety of its context, at no time was the applicant pressurized into giving any answers when he could have exercised his right of silence.  That was not supported by the entirety of the VRI either, as the applicant was forthcoming and sometimes even ventured to answer before the Interpreter translated the questions.  As we have earlier mentioned, trial counsel told the court at the Pre-Trial Review that the contents of VRI was the case of the defence.

41.  As to the complaint that the applicant did not understand his rights in the Notice to Persons in custody, we noted that the applicant was cautioned at Ta Kwu Ling police station at 6:05 pm on 14 November 2019 in Punti and he was able to answer in simple Chinese[41].  Later that evening, at 8:28 pm at Sau Mau Ping police station, the Interpreter translated the post-record to the applicant and the applicant understood and indicated that he had nothing to correct.  There was no complaint against the competence of the Interpreter at that stage.  It is also evident from the VRI that he could understand some Punti.

42.  Mr Chau stressed that at an early stage of the VRI the applicant said that “it’s not very easy to catch his words”[42].  However, when viewed in its context, it simply showed the applicant making that remark when the Sergeant was explaining the various equipment in the video-recording room to him.  Later on, he said that he could catch some of what the Sergeant said to him in Punti[43].  He was agreeable to the carrying on with the video-recording and for the Sergeant to further explain any questions that he could not catch[44].

43.  After introducing the recording system and procedure to the applicant, the Sergeant referred the applicant to the Notice to Persons in custody given to him earlier[45]. He agreed that the contents therein had been explained to him and he had signed[46].  The Sergeant then asked the Applicant not to make any sound when he was doing the talking.  When he returned to the topic of the rights in the Notice to Persons in custody the applicant sounded confused at first and asked “what rights”[47].  Upon further explanation by the Sergeant through the Interpreter, the applicant said “Got it, that is it.”[48] and “No need to repeat”[49].  There is simply no question of the applicant not understanding his rights when he took part in the VRI.

44.  Ground 1 is not reasonably arguable.

45.  By Ground 2, Mr Chau complained that although translation problems have peppered the entire interview, the admitted facts stating that “the transcript is an accurate record of the VRI and the translation is not in dispute.  The fairness and the voluntariness of the VRI are also not in dispute”[50] might have confused the jury and it was incumbent upon the judge to point out the various mistranslations or non-translations in her summing-up.  Without sufficient directions, it was submitted that the applicant was unable to have his defence properly put before the jury.

46.  HKSAR v Sysoev Igorevich Iurii [51], concerned a complaint of the standard of interpretation by the court interpreter at the trial.  The Court of Appeal stated:

“65. Whether a mistranslation had led to any unfairness in a trial will necessarily depend on the nature and context of the mistranslation and its importance to the issues in the particular case: HKSAR v Chan Ka Chun. In assessing a complaint about the quality of the interpretation at trial, an appellate court would have regard to the content and context of the questioned interpretations and the overall circumstances of the trial. The appellant must show that due to the questioned interpretation, there was a real risk he did not receive a fair trial: HKSAR v Gutierrerz.”

47.  HKSAR v Moala Alipate [52] involved dockside interpretation.  There was evidence from the Tongan interpreter on appeal that “he was only able to interpret 20-30% of what was said and settled on trying to convey, as best as he could, the gist of what was said.”  The Court of Appeal said that “doing one’s best” will not necessarily be sufficient for the purpose of delivering what the law promises and demands – a fair trial.”[53] .  McWalters JA pointed out that:

“56. …it is clear that the court recognized the difficulties associated with the translation process. Whilst accepting that it is important that the translation is true and accurate, the court was alert to the fact that it may be difficult to perfectly convey what is meant by the words of one language into the words of another language.

57. Also, when it comes to assessing the standard of the interpretation service provided and determining whether it led to an unfair trial we must not lose sight of the very important principle that a fair trial is not a perfect trial and a court will adopt a practical view of the circumstances when adjudging the merits of a claim that a breach of the fair trial right took place…”

48.  A similar observation was made by Zervos JA in Sysoev Igorevich Iurii:

“64. …interpretation during a trial is a spontaneous process which allows the interpreter minimal opportunity for reflection to interpret what is being said from one language to another. As a matter of practical common sense, perfection is an unattainable standard and a degree of leeway is allowed as a matter of necessity but not to the extent that would deprive the accused of a fair trial: HKSAR v Saeed Ur Rehman.”

49.  In HKSAR v Gutierrez [54],  Macrae VP stated that:

“34. … it is for the appellant to show that the standard of interpretation fell below the standard required, and impacted on either his understanding of the case or his conduct of his defence.”

50.  It should be noted that all the above cases concerned simultaneous interpretation in court, whereas the present case concerned interpretation at a VRI which was later transcribed and translated officially for the purpose of the  trial.  Any defect of which had been cured by subsequent official certified translation.  Whilst HKSAR v Chan Ka Chun [55] is a case which concerned mistranslations in some parts of the VRI, the circumstances were quite different from the present case.  The trial judge, who was monolingual, relied heavily on those mistaken translation as a result of which comments were made during the summing-up on the inconsistencies and chronological difficulties in the defendant’s account.  It was found by the Court of Final Appeal that such had resulted in an unfair trial.  Fok PJ stated that:

“22. Self-evidently, where evidence in one language is translated for the benefit of the court or parties, as often happens in this jurisdiction, it is important that the translation is true and accurate. Meaning, sometimes difficult in one language on its own, may become elusive in translation, and in mistranslation, unattainable. Whether a mistranslation leads to unfairness in a trial, however, will necessarily depend on the nature and context of the mistranslation and its importance to the issues in the particular case.”

51.  As we have said above, the translation problems had not gone unnoticed.  They were pointed out by Defence counsel in his closing address[56]. Most of the various examples given by Mr Chau concern either misinterpretation or omission to translate relating to time or date (of marriage) or place where the deceased’s children reside[57].

52.  Mr Chau criticized some of the applicant’s answers of what led to the killing was not translated.  In particular, he highlighted that some of the answers by the applicant were not / not properly translated:

(i)    The run-up to the murder, his reasons for leaving and returning to Hong Kong[58];

(ii)   The applicant’s explanation as to what made him uncomfortable in the preceding evening of the murder, that is, the deceased telling him earlier that she had slept with an old man aged 60-70[59], was not interpreted at all;

(iii)  the description of the events leading up to the killing and how he knelt in front of the deceased saying “Do not do things like this, Wang Fenggui”[60], but the deceased kept asking him to go to hell and calling him an asshole[61]; and kicking him[62].

53.  We have carefully read the transcript and found that all those mistranslations and non-translations had been cured and corrected by the bolded transcript.  The judge rightly asked the jury to have regard to the whole of the video-recorded interview, although the important parts are the words spoken in Hakka to the applicant and the answers and statements made by the applicant in Hakka (the bolded parts).[63]

54.  In any event, we are satisfied that the VRI, taken as a whole, did give the jury a clear picture of his defence of provocation.  The mistakes in interpretation were insignificant and did not render the applicant unable to put forward his defence.  The fact that Defence counsel was able to identify some 76 counters in the VRI to help the jury consider the applicant’s defence of provocation spoke for itself. Moreover, the complaint about the confusion created by the admitted facts was misconceived. They only confirmed the accuracy of the transcript and the translation of the transcript into English of what was said by the parties individually in the VRI.  There was no admission of the accuracy of the interpretation by the Interpreter during the VRI.  We also noted that it was a tactical decision made by trial counsel not to challenge the VRI albeit that there were some deficiencies in the translations by the Interpreter.  Instead, given that at the Pre-Trial Review he told the judge in unambiguous terms that the case of the defence was contained in the VRI and “the defendant was able to express all he wished to say”, we found it difficult to entertain Mr Chau’s second ground.

55.  We also wish to say that it is the VRI that is the evidence, the transcript and translations are no more than aide memoire to assist the jury in watching the videos.  The judge correctly pointed out to the jury that after they retire for deliberation, they were entitled to read the transcript and look at the VRI should they so wish[64]. Coupled with the direction of the judge that the jury were to look at the VRI and re-enactments as a whole and should not just take bits out of them in isolation[65] and that the applicant’s accounts in the VRI set out his defence to the effect of admitting to unlawful killing but did so because of words said and acts done by the deceased[66], we did not find Ground 2 reasonably arguable.

56.  Ground 3 was a new ground added only after the leave hearing.  Mr Chau fairly admitted before us that a careful comparison between the Uncertified and Certified translations revealed only very minor errors such as typos and grammatical mistakes which “would have had little to no bearing on the trial”.  Nonetheless, he argued that the only significant difference was between the word “irreversible” as opposed to “irretrievable”[67] which supported his submission that a more detailed direction on misinterpretation should be given by the judge.

57.  We would not reiterate what was already stated in the preceding paragraphs.  That word, which in Chinese was “冇挽救嘅” appeared twice in the transcript when the applicant was talking about his quarrel with the deceased when they were in bed, during which the deceased kept asking him to go to hell and that he did not want to go to her place and so she said “it is irreversible this time”[68]. Thereafter, according to the applicant, he knelt down on the floor but the deceased paid no heed and he got back to lying next to her in bed, but she kept shouting at him and kicking him and he kept begging her but she kept beating him and said “it was irreversible”[69]. We agree with the respondent that in the context of how it was allegedly said, there was not much difference between what was conveyed by the two different translations.  All it could have meant was that their relationship was not rescuable.  The difference could not have impacted on the defence in any way, and definitely not to an extent of causing the trial to miscarry.  Ground 3 also failed.

Conclusion

58.  Leave was refused on all grounds and the appeal against conviction was dismissed accordingly.