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Hksar v Chan Hon Wing

Judgment Cited authorities 17 Cited in Precedent Map Related
Vincent
Judgment Date23 December 2021
Neutral Citation[2021] HKCFA 45
Judgement NumberFACC8/2021
Citation(2021) 24 HKCFAR 448
Year2021
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC8/2021 HKSAR v. CHAN HON WING (陳漢榮)

FACC No. 8 of 2021

[2021] HKCFA 45

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2021 (CRIMINAL)

(ON APPEAL FROM CACC NO. 200 OF 2016)

_________________________

BETWEEN
HKSAR Respondent
and
CHAN HON WING (陳漢榮) (D1) Appellant

_________________________

Before: Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ and Lord Hodge NPJ

Date of Hearing: 23 November 2021

Date of Judgment: 23 December 2021

____________________

JUDGMENT

____________________

Chief Justice Cheung:

1. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Ribeiro PJ:

2. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

A. Introduction

3. This appeal raises questions, in the context of a criminal trial before a judge and jury, regarding the significance of concerns about the language proficiency of jurors and how such concerns might be addressed. These questions are important in a jurisdiction like Hong Kong, where there is more than one official language in which court proceedings may be conducted. To put the discussion of these questions into context, it is necessary first to summarise briefly the particular concern that arose in the trial below, and how it was dealt with by the judge.

A.1 The prosecution and trial

4. The appellant stood trial before Deputy High Court Judge Beeson and a jury on two charges of trafficking in dangerous drugs (Counts 1 and 3) and one charge of manufacturing a dangerous drug (Count 2). The counts arose out of events which occurred on 3 December 2014 at a flat rented by the appellant’s son, under a lease commencing the previous month. The appellant’s son was jointly charged with the appellant on the three charges and pleaded guilty to Counts 1 and 3 but not guilty to Count 2, which was not proceeded with by the prosecution but instead ordered to be left on the court file.

5. The prosecution case was simple. The appellant, a taxi driver, was seen parking his taxi and entering the flat twice on the evening in question and staying in the flat for just under two hours and one and a half hours on each visit. As he was leaving the flat after the second visit, the appellant was arrested by police and found in possession of a plastic bag and some keys. Inside the plastic bag was a substantial quantity of cocaine, forming the basis of Count 1. On arrest, he said he was carrying the drugs because he was in debt. The keys were to the flat and, when the police entered, they found the son there apparently in the process of packaging dangerous drugs. There was minimal furniture in the flat and a search of the flat led to the discovery of the drugs forming the basis of Count 3, as well as kitchen tools and sodium bicarbonate which could be used in the manufacture of crack cocaine. Traces of cocaine were detected throughout the flat. On arrest and caution for manufacturing dangerous drugs, the appellant replied that he did not know about manufacturing dangerous drugs and was only responsible for carrying drugs. In a subsequent video recorded interview, the appellant admitted he collaborated with his son in manufacturing and trafficking in dangerous drugs to pay off his debts owed to various financial institutions.

6. Based on this evidence, the prosecution alleged a joint enterprise between the appellant and his son, by which the son carried out the manufacture of the drugs in the flat which the appellant then delivered. The prosecution case relied on the appellant’s admissions and on the direct and circumstantial evidence arising from the appellant’s arrest.

7. The appellant testified in his defence. He denied being in debt and asserted that he went to the flat on the first occasion to deliver soup to his son at his wife’s request. His son was not there so he left the soup and swept the premises, staying only 45 minutes. He returned later in the evening at his son’s request to drive him to Kowloon. On arriving, his son handed him a plastic bag and asked him to wait in his taxi for him. He did not enter the flat on that occasion but was arrested by the police as he was returning to his taxi. He denied knowledge of the contents of the plastic bag or drug making equipment in the flat and also denied making the admissions relied on by the prosecution, claiming he was coerced to make these and to sign to acknowledge them, and coached in what to say in the video interview.

8. At the trial, the opening remarks and evidence occupied nine days (6-8, 10 and 13-17 June 2016) and counsels’ closing speeches and the trial judge’s summing up took place over two days (20 and 21 June 2016), concluding on the morning of the second day.

A.2 The jury’s question to the judge before the summing up

9. The trial was conducted in English but, where evidence was given in Chinese, it was translated, by the Court interpreter, who was a very experienced Senior Court Interpreter, into English. The translation was carried out in the usual manner by the interpreter sitting next to the witness box and providing sequential, or consecutive, interpretation of the evidence, meaning that a question was put by counsel in English, interpreted by the interpreter into Chinese, answered by the witness in Chinese, then interpreted by the interpreter into English. The interpreter’s translation of the English questions (into Chinese) and Chinese responses (into English) was audible to everybody present in court and recorded by the court audio recording system.

10. During the morning of the trial on Friday, 17 June 2016, while the appellant was giving evidence in support of his defence, the jury foreman sent a handwritten note to the judge. The text of the note reads as follows:

“Dear Judge Beeson,

We fully understand our responsibility to be the jury providing verdict to the defendant.

Since this is a very serious decision on the case concerning the freedom of the defendant, we hereby request to have a Cantonese translator for the closing statements of the Prosecutor, the defendant lawyer and the Judge to ensure there is no misunderstanding.

Please review our concern and provide advise [sic] accordingly.

Thank you for your attention to this matter.

Foreman of Jury

[Signature]”

11. After the appellant had concluded giving evidence, and in the absence of the jury, the judge raised the jury’s question to her with both counsel and said:

“Court: They’re obviously very concerned about whether or not they’re going to understand the addresses and the summing-up. I understand that we have devices that the jury can wear.

…

Court: Yes, and apparently it has been used before for some other matters. What I am proposing to do is to have the devices available for the jury members. That means that they get to listen to what’s being said in the English, but if they need to, they can use the translation that’s going on at the same time for the defendant.”

In response to her ladyship, both counsel agreed this was “the proper way to go ahead.”

12. The judge then recalled the jury and addressed them in these terms:

“Members of the jury, I’ve had this request for your need to have an interpreter, effectively. The Cantonese translator was for the prosecution and the defendant and the judge to ensure there was no misunderstanding. I take it that up to now, you’ve understood what’s been going on in court, but that you’re a bit worried about not having an interpreter available for the addresses. I propose to deal with it like this. We have devices which are headphones, effectively, that you can wear during the deliberations, in which – allows you hear what the Cantonese interpreter is saying so you’ll be able to hear the English, and if you need to, you can resort to the headphone for the translation by the interpreter.

So I think that will cover the problem that you perceive yourselves as having, and we will have those available next Monday, when we will start the addresses. So I’m going to release you now. I’d like you to start, if possible, on Monday at 9.30 so that we can get as much of the addresses done as possible. I may have to hold some over to Tuesday, depending on how long the addresses take so that you’ve got plenty of time to go out and consider your verdict, because there are three charges here, and although the evidence has been comparatively simple, there’s quite a lot of it for you to take into account. So that’s what I’m proposing to do. Does that put any of you into any difficulties?

So that means you’ll be able to listen to the interpreter while she’s interpreting for the defendant. And at the same time, if you need to, if you wish to, you can listen to the English. Any questions or any problems that you perceive? Perhaps you’d like to discuss it in the jury room. Let me know when you’re ready.”

13. The jury retired to consider the judge’s proposed course of action and, on being recalled again, the judge asked if there was any problem with what had been spoken about so far. This led to the following exchange:

“Foreman: It’s okay, my Lady. We decided to continue. No need to get the headset.

Court: Well, you’ve made me nervous now, so I think we’ll get the headsets for Monday, and if you don’t want to use them, you don’t have to use them, but they’ll be available there if anybody does need to use them. So I’ll adjourn now until 9.30 on Monday morning. Feel free to leave the court until that time.”

The jury then retired for the day and the session concluded with the judge asking counsel if there were any matters either wished to raise, to which they both replied in the negative.

A.3 Closing submissions and the summing-up

14. Before closing submissions commenced on Monday, 20 June 2016, the jury were provided with headsets to listen...

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