HKSAR v. LHOUVUM NEMBOI

CACC 327/2018

[2024] HKCA 704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 327 OF 2018

(ON APPEAL FROM HCCC NO 102 OF 2016)

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JUDGMENT

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

1.  On 12 October 2018, after a trial before Deputy High Court Judge Lee (“the judge”), as Lee J then was, and a jury, the applicant was convicted of trafficking in a dangerous drug, namely 2,089.5 grammes of a powder containing 1,414.5 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  On 20 August 2019, the applicant, who was represented by counsel, advanced two grounds of appeal against her conviction before a Single Judge^[1].  After leave was refused, she filed a Form XIII Notice on 2 September 2019 for the purpose of renewing her application for leave to appeal.  Between 30 September 2019 and 19 August 2022, she filed various documents, seeking to advance grounds which were not raised before the Single Judge.

3.  When the applicant appeared before us on 23 April 2024, we tried to ascertain which were the grounds she would rely on to pursue this application.  In particular, she was asked if she understood the grounds formulated in the “Amended Grounds of Appeal Against Conviction” (“Amended Grounds”) dated 19 August 2022. Those grounds were formulated on her behalf by a prison inmate, Mr George Jutting.  The applicant replied that those grounds were written in professional language and she did not understand most of them.  The hearing was adjourned for the applicant to make up her mind which ground/grounds she would rely on in this renewal application.

4.  Just before the resumed hearing on 31 May 2024, the applicant filed a letter dated 8 May 2024 (received by the Appeals Registry on 13 May 2024), in which she stated that she would no longer rely on the Amended Grounds.  She confirmed at the hearing that the sole ground she would rely on was the deficiency in the trial interpretation.

Prosecution case

5.  The applicant was intercepted in the morning of 13 September 2015 upon her arrival at Hong Kong International Airport on a flight from Kolkata, India.  Her suitcase was searched and found to contain 14 packets of soap and 2 boxes of cosmetics.  A Customs officer (CO 9707) cautioned her, pointed at the soap and cosmetics and asked her what they were.  She remained silent^[2].  It was subsequently found that the packets and boxes collectively contained the subject matter of the charge.

6.  During a preliminary enquiry conducted by Customs officers, the applicant stated that “Mercy paid me the free trip and US$500 and asked me to bring the soap and cream to Hong Kong.”^[3]  The same was repeated in the two video-recorded interviews which took place on 14 September 2015^[4] and 15 September 2015.  She denied knowledge of the drugs but said that she thought that it was a tobacco product mixed with betel nut^[5].  The preliminary enquiry and video-recorded interviews were admitted into evidence after a voir dire with some parts of the video-recorded interviews redacted^[6].

Defence case

7.  The applicant elected not to testify at trial or call any defence witness.  By way of cross-examination, issues were taken as to why the applicant was arrested, and whether she was cautioned and advised of her right as a person in custody^[7].  It was the defence position that what the applicant said in her video-recorded interviews was true^[8].

Summing-up

8.  The judge gave the usual directions on the burden and standard of proof, the applicant’s silence at the scene and her election not to give evidence, and on the mixed statement given by the applicant in the preliminary enquiry and the video-recorded interviews.

9.  In summarizing the prosecution case to the jury, the judge highlighted six points which all went to the issue of the applicant’s knowledge^[9]:

“(1.) the Admitted Facts, that the defendant had carried the suitcase which contained the cocaine. That is P87, the Admitted Facts. Usually, if you carry your handbag, one would expect you to know what is in the handbag. But it is not necessary that you know, but there is a likelihood that you know. So this may be a factor that you would wish to take into consideration. I think this is common sense.

(2.) There is little dispute, in fact, it is the defence case that the defendant checked in the suitcase as her luggage in India.

(3.) The defendant said that she had come to know Mercy just a few months and she did not know her well. So Mercy is not one to whom the defendant was familiar and bearing this in mind, you consider the fourth point.

(4.) Nevertheless, according to the defendant, Mercy offered a free trip to her and also US$500 for bringing into Hong Kong some items which are apparently inexpensive, namely, soaps and creams. So a stranger offered you a free trip and a sum of money to bring what purported to be soaps and creams. Of course, when you consider that point, you have to be sure that what the defendant said in her video-recorded interview about this is true. If not, then you cannot rely on this point.

(5.) The defendant said she felt that there was something illegal. Of course, the prosecution said actually it is not only that. She actually knew, but at least we have the defendant’s own saying that she felt something illegal. If you are sure that that she had that feeling, it is a matter for you how much weight you should give to this factor when you consider everything.

(6.)  The Admitted Facts that the dangerous drug in question was worth over HK$2.2 million.  Mr Ryan submits that no one would have been entrusted with such a highly valuable dangerous drug if she was not in the know, if she was not part of the gang. Now, Mr Ryan submits that taking everything into consideration, the only reasonable conclusion or inference to be drawn is that the defendant knew that there were dangerous drugs in the suitcase.”       

10.  It should be mentioned that a minor hiatus occurred when the foreman announced the jury’s verdict.  However, after the judge’s clarification, the foreman confirmed that the verdict was guilty by a majority of 5:2.[10] This matter was dealt with by the Single Judge in his judgment.

Grounds of appeal

11.  The sole ground relied on by the applicant in her letter dated 8 May 2024 was as follows:

“I want to rely on the ground is my trial interpreter failure, my focus and worry was only my interpreter behaviour and did not interpret time to time. I did not know anything else what went wrong or what was going.”

The applicant further elaborated at the hearing that the interpreter could not translate what she wanted to convey.

Respondent’s submissions

12.  Mr Ira Lui, ADPP (with him Miss Cherry Ho, SPP) for the respondent pointed out that the ground now relied on by the applicant had not been argued at the leave hearing and was effectively a new ground disguised as a renewal. No satisfactory explanation had been given to justify her delay in advancing the new ground out of time^[11].

13.  Mr Lui submitted that whilst an accused is entitled to adequate translation of the trial proceedings to enable him or her to understand what transpired, the applicant failed to discharge the onus of establishing what the alleged deficiency was and how it impacted on her entitlement to a fair trial.  Mr Lui pointed out that the applicant demonstrated her proficiency in English at the time of arrest and investigation.  The answers given by the applicant in the video-recorded interviews were largely in English, and various entries showed the spontaneity of her reply without any need for translation.  Mr Lui stressed that after the court replaced the original interpreter with an interpreter of the applicant’s choice, there was no further complaint about the quality of interpretation at any time.  Mr Lui relied on HKSAR v Gutierrez^[12]and submitted that vague and general assertions did not suffice as a basis for her complaint.

Discussion

14.  The practice of putting in new grounds of appeal disguised as a renewal without requesting an extension of time happens not infrequently, with both represented and unrepresented applicants.  In the past, we invariably heard the new grounds on a provisional basis to ensure that no reasonably arguable grounds were shut out but we discourage such practice.[13]

15.  In the present case, after leave was refused, additional grounds were filed, abandoned and reinstated in the extensive correspondence.  This included the Amended Grounds formulated by Mr George Jutting, which ran to a total of 20 pages.  As we have said, those grounds were no longer relied on by the applicant at the resumed hearing.

16.  The only ground advanced concerned the quality of trial interpretation.  As we have already noted, this ground was disguised as a renewal but not supported by any application for an extension of time.  No explanation was advanced for the delay.  This application could have been disposed of immediately but nonetheless we heard the applicant on a provisional basis to ensure that we were not shutting out a reasonably arguable ground.

17.  The applicant, who is from India, claimed to speak only the Thadou Kuki dialect.  A Thadou Kuki/English interpreter was arranged at the trial.  On Day 3 of the voir dire, 12 September 2018, the applicant expressed dissatisfaction with the Thadou Kuki/English interpreter.  Arrangements were made for Reverend Sitlhou Khupthang (“the Reverend”), who had been assisting the defence team from as early as 2017, to take over as the official interpreter from Day 4 onwards.  After the original interpreter was replaced, defence counsel stated to the court that “the defendant now fully understands all evidence in the past three days and there is no need to recall any PWs”.

18.  A ruling on the voir dire was given on Day 8.  The hearing was then adjourned for two weeks.  A jury was empaneled on Day 9.  From then onwards, the Reverend acted as the court interpreter until the verdict was delivered on Day 17.  During this whole period no complaint was made by the applicant or her counsel to the judge about any problems arising from interpretation.

19.  The lack of any timely complaint is only one of the factors to be considered when an appellant raises the issue of substandard interpretation.  In HKSAR v Gutierrez, the Court of Appeal set out seven factors to be considered when an appellant makes allegation of inadequate interpretation as a ground of appeal.  It is useful to set them out as follows:

(1)  whether the interpretation was sufficient to safeguard the fairness of the trial by giving the defendant an adequate understanding of the case against him, so as to enable him effectively to put forward his defence (paragraph 32);

(2)  the essential focus is on whether what was interpreted gave the defendant an adequate understanding of the proceedings to enable him effectively to play his part in them (paragraph 33);

(3)  it is for the appellant to demonstrate 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 (paragraph 34);

(4)  it is for the appellant to show a real risk of an impediment to the conduct of the defence (paragraph 38);

(5)  the consequences of any deficiency must be looked at in the overall context of the particular trial and the issues it raises (paragraph 44);

(6)  whether there was any complaint by the defendant or his counsel in respect of the interpretation provided to him at trial (paragraph 49);

(7)  it is relevant to consider at what part or section of the proceedings the complaint of deficiency in interpretation is directed and its significance to the particular issues in the case (paragraph 52).

In making an overall assessment, we need to consider the overall context and circumstances of the trial, including the complexity of the issues, and what precisely was the alleged deficiency complained about.

20.  The applicant complained about the standard of interpretation of the Reverend.  She submitted that the Reverend was not able to translate what she wanted to say and failed to interpret the proceedings to her.  Despite our repeated enquiries, the applicant was unable to identify the part of the proceedings or evidence that the alleged deficiency occurred.  When we asked how she knew that the Reverend could not convey what she wanted to say, she only gave a general answer that the Reverend did not perform or translate very well.

21.  The appellant in the Scottish case of Lee v HM Advocate[14]was a Korean national who had been in the United Kingdom for 10 years.  There was an initial concern raised by counsel about the interpreter but in the course of the evidence, the closing speeches or the summing-up, no further complaint was made.  The appellant then mounted his complaint against the trial interpretation on the basis that he could hear in English and was able to tell that part of the witnesses’ testimony was not translated into Korean. He did not identify the parts which he alleged were omitted nor did he demonstrate how the omission impacted on the fairness of trial.

22.  In Gutierrez, the Court made the following observation about Lee v HM Advocate:

“46. …The case against the appellant came primarily in the form of the testimony of the complainer, a doctor speaking to injuries and some of the complainer’s friends referring to events in the nightclub, text and related matters. There was no technical evidence. It reflected, according to his own trial counsel, what had been anticipated in advance and discussed pre-trial. The appellant’s position had been communicated to his legal advisors and it was, in due course, put to the witnesses where required. At no point did the appellant identify anything specific that he either did not follow or had been unable to deal with. The appellant elected not to give evidence, apparently well in advance of trial, so there is no issue in relation to his ability to present his account adequately to the jury. In these circumstances, it is impossible to perceive any unfairness such as would be conducive to a miscarriage of justice.” (our emphasis)

23.  The Court had previously stated that:

“43. …to assume that a deficiency in translation per se renders the trial unfair, without considering how that deficiency has, or may have, impacted, on the defendant’s understanding of the proceedings in a material way so as to imperil his right to a fair trial, is a principled but absolutist position. Moreover, it is an abdication of a function which the appeal courts should normally be perfectly equipped to address and resolve by way of evidence.”

24.  It is incumbent on an appellant to identify the part of the proceedings which he says was not sufficiently interpreted in order for the appeal court to assess whether the deficiency compromised the appellant’s right to a fair trial.  In Gutierrez, the Court stated:

“42. …it ought to be perfectly possible and feasible in most cases for an applicant to tell an appellate court, having looked at the appeal papers with the benefit of legal advice and a translator, what it was that was not translated or mistranslated, or what it was that he did not understand, that so affected the way he in fact conducted his defence. …”

25.  Deficiency in the interpretation of some parts of the proceedings might not be as vital as others in affecting a defendant’s interests.  In the present case, the applicant did not identify which part of the proceedings or evidence was not sufficiently interpreted.  She attributed that her poor standard of English.

26.  However, we noted that during the preliminary enquiry, she told the Customs officer that she could understand and speak English and the enquiry was carried out accordingly.  She was able to relate to the Customs officer in English that Mercy had paid for her trip to Hong Kong and that she was not aware of anything illegal in her baggage[15]. She could understand the nature of a controlled delivery and took part in one during which PW6 made notes of her telephone calls and text messages, all of which were in English.  The notes were produced in the Admitted Facts[16] as Annexure A. The answers in the applicant’s video-recorded interviews were mostly provided in English.  As pointed out by Mr Lui, there was a degree of spontaneity in her answers in that sometimes she made replies without even waiting for the questions to be translated.

27.  The applicant first raised the complaint about the trial interpretation in her letter dated 30 September 2019. One page was written in Thadou Kuki dialect, another page was in English.  She wrote:

“I write another one page in Thadou dialect and this I translate in the best of my English with no one help…”

In her latest letter dated 8 May 2024, she confirmed that the 30 September 2019 letter was written by her in English.

28.  Contrary to that which the applicant has claimed, we found that the proficiency of her English would have enabled her to identify the areas of the evidence, the translation of which was deficient. The allegation against the Reverend was vague and general, with a vague complaint that she was inhibited from giving evidence due to the inadequate standard of the Reverend’s interpretation. Suffice it to say that after the original interpreter was replaced by the Reverend, on Day 7 the applicant testified in the voir dire in Thadou Kuki dialect. At no time was any complaint raised about the deficiency of the Reverend’s interpretation by her or her counsel.  After the voir dire, there was a two-week gap before the trial proper commenced and the Reverend continued to act as the trial interpreter.

29.  The Court in Gutierrez has said that HKSAR v Moala Alipate[17] was a singular case in terms of the evidence and the concession by the Tongan interpreter “that he did not fully translate the proceedings into a language, of which he accepted he was not himself a fluent, native speaker”.[18]  There was no such concession by the Reverend who was an interpreter of the applicant’s own choice.

30.  This was a straightforward case.  Most of the facts were not in dispute.  Three sets of Admitted Facts were signed on the applicant’s behalf by trial counsel and read out in court.  The issue was a narrow one: whether the applicant had knowledge that she was bringing dangerous drugs into Hong Kong or whether she was duped by Mercy.  That central issue would not have been difficult for either the applicant or the Reverend to understand.  In fact, the evidence demonstrated that the applicant was well aware of the issue even at the investigation stage.  She had mentioned Mercy as early as the preliminary enquiry and went on to elaborate how she was tricked by Mercy in detail in her video-recorded interviews.

31.  In Lee v HM Advocate there was an initial concern raised with the trial judge about the interpreter, but on appeal the Court noted that there was no further complaint made by the defendant in the course of the evidence, the speeches of counsel or the summing-up.  It was remarked that had there been any continuing difficulty with the interpreter, that should have been drawn to the court’s attention through his representatives.  Similarly, in the present case, absent any further complaint, the judge was entitled to assume that the applicant was satisfied with the Reverend who was an interpreter of her own choice and any issue of interpretation had been resolved.  Mr James Tze, the applicant’s trial counsel, who also represented the applicant at the leave hearing, did not make deficiency of the interpretation a ground of appeal.

32.  Since the allegations were bare assertions which were vague and amorphous in nature, we were not persuaded that the applicant had established on the balance of probabilities that there was an inadequate interpretation provided to her at her trial, and how any such alleged deficiency had prejudiced or impacted on her.  It is for these reasons that the renewed application for leave to appeal against conviction refused and the appeal dismissed.

Postscript

33.  The original perfected grounds of appeal were settled and argued by counsel.  Leave was refused by the Single Judge on 20 August 2019.  New grounds were advanced on 30 September 2019 after the applicant filed her Form XIII to renew her application.  In a letter dated 9 December 2019, the applicant sought to abandon all the grounds filed by counsel on her behalf.  In a further letter dated 19 December 2019, the applicant stated that she would rely on all the grounds in the Perfected Grounds of Appeal and the new grounds and tried to amend and expand one of the grounds.  By the time of the Amended Grounds dated 19 August 2022 written by Mr Jutting, 3 years had passed from the date of judgment of the leave application.

34.  The Amended Grounds ran to a total of 20 pages consisting of small handwritten capital words full of convoluted legal jargon.  We were told by the applicant that she only enlisted the services of Mr Jutting because “I simply trust because he is well educated and many inmates success from his help which I heard from friends”.  We were perplexed by how,  since our remarks in HKSAR v Lee Ernest [19], Mr Jutting was still able to continue with his seeming “legal practice out of prison, when he is neither qualified nor entitled to do so”[20].

35.  The applicant advanced no explanation for the delay (lack of legal representation is not a valid explanation).  Considerable time was spent in trying to understand those grounds prior at the hearing on 23 April 2024.  To our mind, as we said in Lee Ernest, Mr Jutting was simply exploiting this court’s accommodating and flexible approach when dealing with an applicant in person.  This practice defeats the filtering purpose of leave applications and should not be encouraged.  In future, if there is no application for extension of time to file new grounds after the leave application and no credible explanation for the delay, this Court would be slow and loathe to entertain such applications.