IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 646 OF 1998
(ON APPEAL FROM HCCC 54 OF 1998)
||LAU CHEONG alias LIU HUNG-YUK
Coram: Hon. Stuart-Moore VP, Leong JA and Yeung J
Date of Hearing: 21 March 2000
Date of Judgment: 13 June 2000
J U D G M E N T
Stuart-Moore VP (giving the judgment of the Court):
1. On 9 December 1998, following a trial in the Court of First Instance before V. Bokhary J and a jury, the Applicants (D1 and D2 respectively at trial) were convicted of murder. They received mandatory life sentences in respect of murder (count 1). D1 received a concurrent sentence of six years' imprisonment for robbery (count 2) to which he pleaded guilty. D2 contested this charge. The jury convicted him and he received a concurrent sentence of nine years' imprisonment. Both Applicants seek leave to appeal against the convictions resulting from the verdicts of the jury.
2. The case presented by the prosecution against the Applicants amounted to an allegation that they had acted together in the murder and robbery of Kei Wai-heung (the victim) at the Tai Po Industrial Estate on 26 July 1997. The prosecution alleged that if the Applicants were not guilty of murder they were, by way of alternative, guilty of manslaughter.
3. In Dl's case, the issue was a narrow one. Having regard to his plea in relation to the robbery, the jury only had to address his intention at the time when, by his own admission, he did an unlawful and dangerous act which caused the victim to die by strangulation. D1 had tied up the victim after robbing him in a particular manner to which we shall later need to return in some detail.
4. The robbery involved a trivial amount of property, namely a watch, a purse and a Hongkong Bank ETC card. It was the 'recent possession' of the ETC card which provided an important first link between D2 and these crimes. This was found after it had fallen out of his underpants at the Queen Elizabeth Hospital on the day after the robbery. Later, blood matching the DNA sample taken from the victim's body was found on the ETC card. Additionally, DNA tests to D2's clothing revealed blood, matching the victim's, on his jeans, shoes, watch and belt and fibre-contact evidence established a link between the trousers of the victim and the T-shirt and jeans worn by D2.
5. D2 had attended hospital for treatment to numerous injuries to his hands. In particular, medical evidence was given that the cuts to his left hand were typical defensive wounds inflicted while the hand had been used to ward off a knife attack.
6. In short, therefore, it was alleged that the evidence revealed a violent encounter between the victim, who must have tried to fight back, and the Applicants, who eventually gained the upper hand, before robbing and tying him up.
7. Dl's plea of guilty to manslaughter was not accepted by the prosecution. D1 testified that he had robbed the victim. However, he encountered resistance because the victim, after he had attempted to rob him by threatening him with two knives, had managed to get hold of one of the knives which he used to defend himself. D1, whilst defending himself from the victim's (lawful) response, then asked D2 to give assistance. Between the two of them, they got the victim to the ground where he was pinned down and punched with fists. D1 testified that when the property was taken by him, D2 "fainted" leaving him alone to tie up the victim. D1 also received injuries to his hands in the struggle. He testified that he had tied the victim because he was afraid he might get away and take revenge.
8. D2 did not testify. His case was put forward in reliance upon the testimony given by D1. One aspect of D1's evidence had been that he, thinking that the ETC card belonged to D2, had placed this inside D2's underpants.
9. In a clear and concise summary of the relevant legal principles and the facts, the judge delivered a summing up which heavily leaned towards a manslaughter verdict for D1. In D2's case, the judge firstly addressed the various pieces of circumstantial evidence capable of linking him to the crimes. She then, and with the same emphasis she had placed on manslaughter in Dl's case, directed the jury as to murder and the alternative of manslaughter in D2's case.
Objections to the Court Interpreter
10. Before hearing the grounds of appeal during the proceedings on 21 March 2000, D1 raised objection to the interpreter. He made a similar complaint during the trial (at page 185 of the appeal bundle). This came to nothing in the present proceedings when it was established that not only the Hunan interpreter especially retained for this hearing, but also the Putonghua interpreter who usually works in this court, could be understood by him. In fact, D1 preferred to be given a translation in Putonghua which is what duly happened.
11. However, D2 then also complained that he could not understand proceedings. This has to be set against a background of an application made by Mr Haynes, on D2's behalf, to amend his perfected grounds by adding a further ground of appeal in the following terms:
"Proposed ground 6
6 That the arrangements for interpretation by a Hunan interpreter with a Changsha accent (instead of a Shaoyang dialect speaker) and a Putonghua interpreter rendered the proceedings incomprehensible to the second applicant. In particular the evidence of D1 was incomprehensible and confusing to the court and jury. This is evident from the transcript. The Defence of D2 relied heavily on Dl's evidence. (see p171D, p185-p195, p211-p233). The result was:
(a) The second applicant dared not speak out at the trial because of his social and historical background.
(b) Because of the fact that no Shaoyang dialect speaker was available, he could not exercise a 'free' election when he accepted a Putonghua interpreter. The 2nd applicant has little understanding of Putonghua. His understanding of the proceedings was seriously flawed.
(c) Having observed the problems surrounding the interpretation of Dl's evidence, D2's election as to whether to give evidence himself was not free in any proper sense of the word. These factors constituted a material irregularity in the trial of the second applicant."
12. None of these matters had been raised at trial by D2 and furthermore, no sooner had the Hunan interpreter at court said that he spoke in Shaoyang dialect, Mr Haynes informed the Court that D1 had sent a letter which had apparently accidentally, and certainly confusingly, found its way into his instructions. Mr Haynes then asked for the first paragraph in his proposed additional ground of appeal, which had been mistakenly based upon something written by D1, to be amended by crossing out...