ATTORNEY GENERAL v. TANG YUEN LIN

IN THE SUPREME COURT OF HONG KONG

CRIMINAL JURISDICTION

MAGISTRACY APPEAL NO. 1300 of 1994

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J U D G M E N T

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Penlington, J.A.:

1. This is an appeal by way of case stated by the Attorney General (the appellant) against a decision of Mr. Peter White, (the Magistrate), sitting in the Magistrate's court in Tuen Mun on 2nd May 1994, dismissing a summons issued against Mr. Tang Yuen-lin (the respondent) charging him with failure to comply with a notice served on him by the Director of Planning (the Director) pursuant to s.23(1) of the Town Planning Ordinance.

2. The appeal first came before Leong, J. on 4th November 1994 and he made an order that it be referred to this court, pursuant to s.118(1)(d) of the Magistrates Ordinance. Accordingly we heard the appeal on the 19th of January 1995 and, at the conclusion, allowed the appeal and remitted the case back to the magistrate for determination. We said we would hand down reasons for doing so and that we now do.

Background

3. The background facts of this matter are not in dispute. On 29th September 1993 an information was filed in the Tuen Mun Magistrates Court on behalf of the Director as a result of which a summons was issued against the respondent. There is no need to set it out in full save to say that it alleges that the respondent is the manager of the Tang Tsok Tai Tso which is in turn the registered owner of land in the New Territories. It is alleged that, as manager, he had failed to comply with a notice issued by the Director pursuant to s.23(1) of the Town Planning Ordinance and thereby had committed an offence under s.23(6) of that Ordinance. S.23 of the Town Planning Ordinance relates to the service of notices on the owners of land where there has been unauthorised development. The notice calls for the development to be discontinued within a specified time failing which an offence is committed unless the defendant can show that reasonable steps have been taken to comply with the notice.

4. The return date of the summons was 11th November 1993 but on that day there was no evidence of service and the Magistrate ordered personal service. He refixed the return date for 3rd February 1994.

5. The summons is entirely in English. It was found as a fact by the Magistrate that while the respondent does speak some English, he only understood the summons to the extent that some of his friends read it and told him of the time and place of the court hearing. However on 3rd February, the charge was read out and fully explained in Chinese to the respondent by the Magistrate then in charge of the court. There is no dispute that the respondent then fully understood the charge against him. The matter was then adjourned to 2nd May 1994 when the respondent appeared again before the magistrate. There were other defendants present charged with similar offences and the Magistrate inquired whether any of them wished to object to the summons because of a possible breach of their rights under article 11(2)(a) of the Bill of Rights Ordinance (BORO). This reads as follows:

"(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees in full equality-

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him."

6. The respondent indicated that he did wish to object to the proceedings and gave evidence as to his knowledge of English. The Magistrate considered that article 11 of the BORO had been breached and dismissed the information.

7. The appellant then applied, pursuant to s.104 of the Magistrates Ordinance, for a review of the decision. That application was heard on 4th June 1994 where again the respondent was unrepresented. However he gave further evidence, with the consent of the appellant. The Magistrate then found as facts that:

(a) the summons had been issued on 29th September 1993;

(b) the explanation of the summons that the respondent had received from friends shortly after its receipt had been confined to the time and place of the court hearing; and

(c) such explanation did not extend to details of the charge against him and that the respondent only understood the charge after it had been explained in Chinese to him by the Magistrate before whom he appeared on 3rd February 1994.

8. At the application for review, the Crown sought to cross-examine the respondent with a view to establishing the absence of any prejudice or unfairness arising from the failure of the summons to provide details of the charge in Chinese. This was refused by the Magistrate on the basis that questions of such a nature would necessarily require the respondent to disclose his defence without having the benefit of legal advice.

The Case Stated

9. The Magistrate in his stated case said he was of the view that the purpose of a summons was to inform an accused person promptly of the nature and cause of the charge against him in terms of article 11(2)(a) of BORO. There could be no compromise with the need for strict compliance with the article and the appellant could not therefore rely upon the intervention of a third party to inform the recipient of the contents of the summons. This, it would seem from his other findings, includes a Magistrate. Any summons which is addressed to a person who is apparently of Chinese origin fails to comply with the duty laid down under article 11(2)(a) if it is not in the Chinese language, unless, by chance, that person is able to read and understand English. He considered that an accused person is also denied an early opportunity to recall and collect evidence if he has to wait for a period of time after receipt of the summons to have it explained to him, and that in the present case the respondent had been unfairly prejudiced because of the failure to serve him with a summons in a language which he understood. Having observed that he was aware that efforts had been made and were continuing to be made to issue summonses in English and Chinese, the magistrate went on to say that

"such prejudice arising from a breach of Article 11(2)(a) could not be cured by a magistrate explaining the nature and cause of the charge against the accused at his first appearance in court, coupled with adjournment of the hearing to a later date".

The main thrust of the argument for the appellant here is that such a finding cannot be supported.

10. The Magistrate found that the summons served on the respondent was a nullity, being in breach of article 11(2)(a), in that it failed to give the court jurisdiction to proceed in the determination of the information. In the alternative, if the summons served was not a nullity, it was appropriate to dismiss the information without further inquiry pursuant to s.6 of BORO which empowers a court to make such order as it may consider appropriate where it is satisfied that proceedings are in breach of a defendant's rights as set out in BORO.

11. The Magistrate stated that in coming to his conclusions he had regard to a previous decision which he had given on 2nd April 1993 in R. v. Tse Kin Ho and another (1993) HKPLR 3. part II, 298. That decision related to the question of whether a summons, issued under the Fixed Penalty (Criminal Proceedings) Ordinance, Cap. 240, which was partly in English and partly in Chinese provided sufficiently full information to a person who could not read English so as to satisfy article 11(2)(a) of BORO. He held that the fixed penalty notices did infringe those rights and that that defect could not be cured by the notices being explained and an adjournment granted.

12. Before us, Mr. Andrew Bruce, Senior Assistant Crown Prosecutor, who appeared for the appellant, submitted that the Magistrate's finding that the summons was a nullity could not possibly be supported. Article 11(2)(a) provides that the defendant is to be informed promptly and in detail, in a language which he understands, of the nature and cause of the charge against him. The words "informed promptly" do not mean that he must be informed in writing, nor do they mean that he must be informed immediately. The information may be conveyed orally and at a reasonable time after the charge has been laid, as was done here on the first occasion on which the respondent appeared before a Magistrate. The plain meaning of the words of article 11(2)(a) is that a defendant must not be required to face a charge which he does not understand and that he must be given an adequate period of time within which to prepare his defence to that charge after having been informed in a language which he understands of its nature and cause. There is no call to give the words of the section an extended meaning. To do so would cause enormous problems in the administration of justice. In this regard Mr Bruce submitted that if the magistrate's reasoning were correct it would have the effect that a defendant who bears a Chinese name but who is illiterate in both English and Chinese could safely treat the summons as a nullity and be under no obligation to make enquiries as to its contents. It would also require a prosecuting authority, in every case where a defendant does not have a Chinese name, to make enquiries as to whether he understands English and, if not, to make further enquiries to ascertain his native language so that the summons could be worded in that language.

13. Reliance was placed by Mr. Bruce on various authorities, the first of which is the Canadian decision In Re Regina v. Thompson [1984] 3 DLR (4th) 642. There the accused had been involved in a traffic accident in September 1981 but, for various reasons, was not charged until January 1983. It was held in the Court of Appeal, per MacFarlane, J.A., that while article 12 of the Canadian Charter of Rights provided that any person charged with an offence has a right to be informed without unreasonable delay of the specific offence, the court should take into account:

(1) the length of delay and seriousness of the case;

(2) the reasons for the delay;

(3) whether the accused asserted his rights promptly;

(4) what prejudice (if any) had been suffered by the accused.

14. The Court of Appeal held that on the facts of that particular case the defendant's rights under the Charter had not been violated. It is the contention here of the appellant that similarly, on the facts of this case, when the particulars of the summons had been explained to the respondent by the Magistrate, on 3rd February 1994, the deficiency in the summons was cured by such explanation.

15. The relevant provision in the European Convention on Human Rights, article 6(3)(a), which is virtually identical to article 11(2)(a) of BORO, has been considered by the European Court of Human Rights on two occasions. In Brozicek v. Italy (1990) 12 EHRR 371 the accused was charged with offences allegedly committed in Italy while on a visit there. His home was in Germany and he did not speak Italian. The accused was sent a letter in Italian informing him that he would be charged and he replied in German, asking what the charges were and that they be put sent to him in one of the official languages of the United Nations. He was tried and convicted in absentia and the record of the conviction entered in the German Criminal Records Office. It was held that the Italian authorities should have taken steps to have their notification translated as requested "unless they were in a position to establish that the accused in fact had sufficient knowledge of Italian to understand from the notification the purport of the letter notifying him of the charges brought against him." Mr. Bruce argues that clearly the court was there saying that if the Italian authorities had sent to the defendant a translation of the original letter then the deficiency would have been cured. That is relied on for the proposition that the word "promptly" in article 11(2)(a) does not mean "immediately".

16. In Kamasinski v. Austria (1991) 13 EHRR 36, the defendant was an American who did not speak German. He was charged in Austrian courts with complicated fraud offences. Again, he was never supplied with an English translation of the indictment and other documentary material. It was however translated orally and neither the accused or his counsel ever asked for a written translation. The court, in considering the facts of that particular case, took into account that the accused was facing complicated fraud charges and that "a defendant not conversant with the courts language may in fact be put at a disadvantage if he is not also provided with a written translation of the indictment in a language he understands." However, having evaluated all the circumstances, it held that, on the facts, the accused had been sufficiently informed of the charges against him within the meaning of article 6(3)(a) of the European Convention on Human Rights.

17. It is the appellant's case that both these cases show that even if the first communication between the court or prosecuting authority and the accused is not in a language he understands that is not necessarily fatal to the charge. While clearly it is desirable that the summons be in a language which the defendant understands, this may not always be possible. What is essential is that the rights guaranteed are such as will ensure a fair trial. If before his trial a defendant is fully aware of the nature of the charges against him and has been given all such details as he requires and a fair opportunity to prepare his defence, then the requirements of article 11(2)(a) of BORO are satisfied.

18. Reference was also made to a report of the United Nations Human Rights Committee which stated, "the specific requirements of sub-para. (3)(a) may be met by stating the charge either orally or in writing, provided that information indicates both the law and the alleged facts on which it is based.".

19. As to the refusal of the Magistrate to allow cross-examination of the respondent as to whether he had suffered any prejudice as a result of the summons not being in Chinese, reliance is placed on a line of cases dealing with the question of delay and whether such delay had caused prejudice. These are Tan Soon Gin v. Judge Cameron and another [1992] 3 WLR 249, 2 HKLR 254 and Attorney General v. Cheung Wai-bun [1993] 1 HKCLR 249. It was submitted that in the present case the respondent had not indicated at the hearing that he had suffered any prejudice, although the appellant had not been permitted to cross-examine him on that issue, and that the authorities referred to make it plain that the burden of proof is on the accused to show that any delay has caused prejudice. Mr Bruce also submitted that it is for a defendant to show that because the summons was not written in a language which he understood, but was explained to him orally, he had been prejudiced so that he could not receive a fair trial.

20. Mr. Bruce did not seek to rely on the fact that both English and Chinese are official languages in the Courts of Hong Kong. He accepted that if the defendant could not understand the language used in the summons it was irrelevant that that language was an official language of the court. If a summons printed in both English and Chinese was served on a defendant who could read neither language, the prosecution could not rely on the Official Languages Ordinances; the defendant would be entitled to have the charges and the proceedings interpreted to him in a language which he understood. The summons, however, was not a nullity.

21. It is conceded by Mr Bruce that there may be cases where failure to comply with article 11(2)(a) at the time the summons was issued may justify a Magistrate in dismissing the summons or ordering a stay. It could be, for instance, that the defendant had available a witness at the time he was first served who could have given evidence on his behalf, but when the contents of the summons were explained to the defendant at a subsequent court appearance the witness was no longer available. Such cases would be rare and no submission was made either here or in the court below that such was the case in relation to this particular summons.

22. It was contended by Mr. John Necholas, who appeared for the respondent here on the instructions of the Director of Legal Aid, that the Magistrate was right in holding that where a person was served with a summons which he did not understand it was a nullity. The summons was the basis upon which the court proceedings were founded and clearly this summons was defective in that, being addressed to a person who was clearly Chinese, it was not in his own language. That deficiency could not be cured by the intervention of third parties such as the friends who had advised the respondent of the date and time when he should appear in court or even by the further intervention of the Magistrate who explained the contents of the information in Chinese to the respondent. There could be no doubt that the respondent was at a disadvantage in being served with a summons that he could not understand. That was violation of his rights under article 11(2)(a) of BORO. Such rights are fundamental and such a violation cannot be cured.

Decision

23. We fully accept that in construing any provision of BORO it should be given a purposeful interpretation. In the leading decision of R. v. Sin Yau Ming [1992] 1 HKCLR 127, Kempster, J.A. at 155 referred to two decisions, in relation to constitutional provisions such as are contained in BORO. In Minister of Home Affairs v. Fisher [1980] AC 319 Lord Wilberforce said, with reference to the constitution of Bermuda, "these anticipants call for a generous interpretation avoiding what has been called the 'austerity of tabulated legalism suitable to give to individuals the full measure or the fundamental rights and freedoms referred to." In A.G. of Gambia v. Jobe [1984] AC 689 at 700, Lord Diplock said "a constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the State are to be entitled, is to be given a generous and purposive construction."

24. Adopting that principle, we are however satisfied that article 11(2)(a) of BORO does not render a nullity a summons which is in a language which a defendant does not understand. It is a deficiency which may be cured by subsequently giving the defendant full particulars of the summons in a language which he does understand. That can be done by an officer of the court which issued the summons, by another person in authority, or even by a defendant's own legal adviser. This must be done within reasonable time and, if necessary, the defendant must be allowed an adjournment to enable him properly to prepare his defence to the charge. Here there is no dispute that within a reasonable time the charge was explained to the defendant by a Magistrate and the matter was adjourned. There is no evidence whatever that he was prejudiced by any delay thus caused.

25. There can be no doubt that it is highly desirable that, in the context of Hong Kong, all summonses to Chinese persons should be in Chinese, the written language understood by the great majority of the public, as well as in English. That requirement was recently referred to by the President of the Hong Kong Law Society and he must be right. We however also note that the Attorney General has stated that steps are being taken as a matter of the utmost urgency to secure that end. A majority of summonses are now issued in both languages and it is expected that within a relatively short time this will apply in all cases. Clearly that is something very much to be desired. In the meantime any person who is served with a summons written in a language which he cannot understand can take it to a Magistrate's Court office and the summons will be fully explained to him in his own language so that he will have no doubt as to the particulars of the offence with which he is charged.

26. We are satisfied that the respondent here was not denied the guarantees given to him by article 11(2)(a) of BORO in that he was on 3rd February 1994 given full particulars of the charge against him, in a language which he did understand, by a Magistrate. He was also given an opportunity to properly prepare his defence to the charge. There is no suggestion that he suffered any prejudice.

27. The questions posed by the Magistrate in his case stated were:

(1) did I err in law in holding that where a person who is reasonably believed to be an ethnic Chinese is served with a summons in the English language which he does not understand that that document is a nullity in respect of which the court has no jurisdiction to proceed;

(2) whether I err in law in holding in the alternative that such a summons so served is fundamentally prejudicial and that it was appropriate to dismiss same pursuant to s.6 of the Bill of Rights without further inquiry.

Our answer to both questions is "yes".

28. For these reasons, we allowed this appeal and remitted the information to the Magistrate for determination.