HKSAR v. SAEED UR REHMAN

CACC 257/2017

[2018] HKCA 234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 257 OF 2017

(ON APPEAL FROM DCCC 135 OF 2017)

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J U D G M E N T

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1.  The applicant was charged with the offence of attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200. The charge alleged that the applicant together with another, on 27 December 2016 attempted to enter as trespassers part of a building in Sham Shui Po, Kowloon. The applicant appeared before District Judge Dufton (“the judge”) and pleaded not guilty to this charge.

2.  On 4 August 2017 the applicant was convicted of this charge and on the same day he was sentenced by the judge to 3 years and 3 months’ imprisonment.

3.  He subsequently applied for leave to appeal against his conviction.  At the hearing of the application I reserved my judgment.  This is my judgment.   

The prosecution case  

4.  The part of the building which the applicant was alleged to have attempted to enter was a flat on the 8^th floor which was owned by a Mr Ho.  At about 7:30 pm on 27 December 2016 Mr Ho heard sound coming from outside the kitchen window of his flat and heard two males talking in a foreign language.  Mr Ho called the police who arrived a few minutes later.

5.  When the police reached the 8^th floor where Mr Ho’s flat was located, the police officer first to arrive saw one male looking around while another male was using a crowbar to prise open the window of Mr Ho’s flat.  When the police officer approached these two males they fled towards a rear staircase with the second male dropping the crowbar on the ground.  Both men were intercepted and arrested.  It was the prosecution case that D1 was the person using the crowbar to break into the flat and the applicant was the person keeping lookout.

6.  On the police case the applicant was never out of sight of the police officer who arrested him.

7.  In the video record of interview the applicant exercised his right of silence but did answer some questions. When asked by the police if he knew D1, the applicant replied that he did not and this answer was consistent with the evidence he later gave in court.

8.  In response to questions about the crowbar the applicant replied that he did not see either the crowbar or a receipt for it which was found in D1’s possession.

The defence case

9.  The applicant testified in his defence and said that he went to the building to collect money from a Nepalese friend who lived on the floor where the police arrested him.  He claimed that as his friend was not home he started to walk down the stairs of the building and it was when he was in the staircase that he was intercepted by the police.  The police then took him to the corridor of the 8^th floor and asked him to wait there.  After several minutes D1 was brought to this location.  The applicant said he did not know D1 and did not go to the building with him.  He denied assisting D1 to break into any flat and he maintained he did not see D1 use the crowbar. At the scene the police asked D1 if he knew the applicant and D1 replied he did not. 

10.  The applicant testified that the police officer brought another Nepalese male to the corridor whom D1 said was his friend who had come to the building to meet him. 

11.  The only other evidence called by the applicant was D1.  By the time that D1 was called he had already pleaded guilty to the charge and admitted a Summary of Facts which contained reference to the applicant as being D2, the person who was assisting him to commit the burglary. 

12.  D1 testified that at the time he was on the 8^th floor he was with a Nepalese male whom he regarded as a brother.  He said he did not see the applicant there and did not know the applicant prior to the date of the attempted burglary.  However, when asked if the applicant had ever assisted him to do anything that evening D1 replied “Yes”, but this answer was not further pursued in evidence. 

The judge’s Reasons for Verdict

13.  The judge accepted the evidence of the police officers and rejected the evidence of the applicant and of D1.  In respect of evidence of D1 the judge had this to say:

“50.  I have no hesitation in rejecting the evidence of D1 that he was with a Nepalese male on the 8th floor; was sitting on the staircase when the police intercepted him and that he only saw D2 after he was brought up.  This evidence was materially different to the facts D1 admitted when pleading guilty, in particular that D2 was looking round when D1 was using a crowbar to prise open the window of the flat; and that when the police approached D2 shouted whereupon D1 and D2 ran towards the staircase.”

The applicant’s grounds of appeal

14.  The applicant is unrepresented and has not filed any Perfected Grounds of Appeal.  However, he attached a document to his Form XI which set out certain complaints.  In that document he has essentially repeated the defence he advanced at trial, namely that he had gone to the building to collect money from a friend and he was arrested by the police whilst in that building.  He maintained he did not know D1 and had never met him before. 

15.  In a letter to the court dated 16 February 2018 the applicant, for the first time, complained of interpretationerrors in the course of D1 giving evidence for him.

Discussion

16.  At the hearing of the application I arranged for the evidence of D1 to be played in court so that the current court interpreter, in respect of whom the applicant had no complaint, could check the transcript against the DARTS recording of the evidence of D1.  In the course of so doing he identified one answer to one question which was inaccurate, primarily, because it was incomplete.  The impugned question and answer that is recorded in the transcript occurred in the cross-examination of D1 when he was being asked which of two accounts was correct – the Summary of Facts he admitted on his plea of guilty to this offence or the testimony he was now giving on behalf of the applicant. The original question and answer is as follows:

“Q. So which one is right? The one you agreed to in court two days ago or the one you are telling now?

A. The statement has been read to me.  I’m not convinced with this.”

17.  The court interpreter said that the answer of D1 has not been fully interpreted and he interpreted what D1 said as being:

“This evidence which is read to me it said this boy is with me. I have given my evidence before and in that I have said clearly that this boy was not with me, because in fact he was not there. I am not convinced with it and I don’t agree with it.”

18.  D1’s evidence was quite short but it is apparent that there were difficulties being experienced by the Urdu interpreter in understanding D1.  Immediately after the contested answer quoted above was given, the following exchange took place between the judge and the interpreter:

“COURT: Mr Interpreter, have you finished your translation of what the defendant said?

URDU INTERPRETER: Yes, because before I couldn’t understand he was trying to say, so I asked him, telling me again.

COURT: To clarify it. All right. That’s...

URDU INTERPRETER: So then he said...

COURT: I just wondered because it didn’t seem like a one-sentence answer.

MR McNAMARA: Yes, yes, now I accept that, yes.

COURT: That’s fine. I have no difficulty with you, with any interpreter clarifying if they don’t understand what’s said.

MR McNAMARA: Yes, yes.

Q. So but would you please answer my question? Which story is correct? The one that you agreed to in court two days ago or the one that you’re telling the court today? Which one? The first one or the second one?

A. Whatever I’m saying right now, this is the correct version. And what I said earlier, I think both are the same.

Q.  Yes.”

19.  For the purposes of this judgment I accept the interpretation by the court interpreter at the hearing of the application.  From this it follows that there was significant exculpatory testimony of the witness that was not translated and of which the judge did not therefore have the benefit when determining the credibility of D1 in the course of his deliberations on the guilt or innocence of the applicant.

20.  The issue which has exercised my mind is that, significant as the evidence was in terms of exculpating the applicant, it may not have ultimately made any difference to the judge’s assessment of D1’s credibility.  I say this because D1 was giving evidence directly contrary to his plea of guilty to the charge, which averred that he committed the offence jointly with the applicant, and to the Summary of Facts which he admitted for the purpose of his plea and which contained many references to the applicant being his co-offender.

21.  Be that as it may, I have decided that it is not for me to anticipate how the Court of Appeal might resolve what I have otherwise concluded raises a plainly arguable ground of appeal.  Furthermore, it may be argued that if the quality of interpretation has resulted in the denial of a fair trial to the applicant then a proviso approach to resolving the appeal is not appropriate. 

22.  In this respect an earlier judgment of mine in which the issue of interpretation in the context of the right to a fair trial was considered may be relevant.  In HKSAR v Shahid[1] I referred to the comments of the New Zealand Supreme Court in Abdula v R[2]where it discussed the standard of interpretation that was required in order for there to be compliance with the defendant’s right to a fair trial under the New Zealand Bill of Rights Act:

“[43] That standard must reflect the accused person’s entitlement to full contemporaneous knowledge of what is happening at the trial. Interpretation will not be compliant if, as a result of its poor quality, an accused is unable sufficiently to understand the trial process or any part of the trial that affects the accused's interests, to the extent that there was a real risk of an impediment to the conduct of the defence. This approach maintains and demonstrates the fairness of the criminal justice process which is necessary if it is to be respected and trusted in our increasingly multicultural community. Trial judges should at all times be alert to the quality of interpretation; certain omissions and irregularities may thereby be sufficiently avoided or mitigated. Where compliance is challenged, the cumulative effect of deficiencies in the interpretation must be evaluated, in the overall context of the trial, to determine whether its standard was, nevertheless, such that there was compliance with the accused's rights. That is a matter for judicial assessment in every case.

[44]    The consequences of a breach of the right to the assistance of an interpreter under s.24(g) is a breach of the right to a fair trial under s.25(a). We do not accept as correct the Crown's submission that, once a breach of the right to assistance of an interpreter is shown, the court must exercise a judgment as to whether the accused nevertheless had a fair trial. Rather, a properly established breach - the failure to meet the required standard - necessarily makes the trial unfair.”

23.  Should this be accepted as the law in Hong Kong then it will be for the Court of Appeal to decide whether, in the overall context of the trial, the standard of interpretation was such that there was compliance with the applicant’s right to a fair trial.  

Conclusion

24.  For these reasons I grant the applicant leave to appeal.  I also grant him an appeal aid certificate pursuant to Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221D.  The applicant’s legal representatives should ensure that this ground of appeal is properly advanced before the court by filing a Notice of Motion and supporting affidavit to adduce fresh evidence on appeal, being evidence by this or some other similarly qualified interpreter of the Urdu language of the incomplete translation of D1’s answer.