HKSAR v. CHAN HON WING

CACC 200/2016 [2020] HKCA 86 in the high court of the hong kong special administrative region court of appeal criminal appeal no 200 of 2016 (on appeal from HCCC NO 210 of 2015)

BETWEEN

HKSAR Respondent and CHAN Hon-wing (陳漢榮) (D1) Applicant Before: Hon Macrae VP in Court Date of Hearing: 15 January 2020 Date of Judgment: 15 January 2020 Date of Reasons for Judgment: 22 January 2020

REASONS FOR JUDGMENT The applicant faced three counts on a joint indictment with his son CHAN Wai-leung (“D2”): trafficking in 1,123 grammes of a solid containing 1,077 ‍grammes of cocaine (“Count 1”); manufacture of a dangerous drug, namely cocaine (“Count 2”); and trafficking in 788.55 ‍grammes of a solid containing 746.04 grammes of cocaine (“Count ‍3”). All three counts concerned events on 3 December 2014 at a flat in Fanling, New Territories rented by D2. The applicant pleaded not guilty to all three counts. D2 pleaded guilty to Counts 1 and 3 only. Count 2 against D2 was not proceeded with and was consequently ordered to be left on court file marked not to be proceeded with, without leave of the court. After trial before Deputy Judge Beeson (“the judge”) and a jury, the applicant was, on 21 ‍June ‍2016, found guilty on all three counts against him. On 23 June 2016, he was sentenced ‍to 26 years’ imprisonment. On 7 July 2017, the applicant filed a Notice of application for leave to appeal (Form XI), seeking leave to appeal against his conviction only. On 15 January 2020, I granted leave to appeal on Ground 1 of the applicant’s perfected grounds of appeal, but refused leave on Ground 2. I indicated that I would hand down the reasons for my decision later. The prosecution case On 3 December 2014, the applicant, who was a taxi driver, visited the premises in question and

remained there for some two hours, from 5:28 pm to 7:25 pm. He then left the premises and drove off in his taxi. Later the same day, at about 9:53 pm, the applicant visited the premises again. About an hour and a half later, at about 11:20 pm, he was intercepted by police officers as he was leaving the premises and walking towards his taxi. At the time, he was carrying a plastic bag containing the dangerous drugs particularised in Count 1, and a bunch of keys. He was duly arrested. Under caution, the applicant said that he was trafficking in dangerous drugs because he was heavily in debt. Police officers then gained entry to the premises in question using one of the keys found on the applicant. D2 was found in a squatting position in the living room, apparently in the process of manufacturing dangerous drugs. In plain view were certain kitchen tools, some sodium bicarbonate, which is used in the manufacturing of crack cocaine, and 764.04 grammes of cocaine in lump form. Traces of cocaine were found on almost all of the items seized in the premises. The premises did not appear to be lived in, for only minimal furniture was evident. The applicant was arrested and cautioned for the further offences inside the premises. Under caution, he said he did not know how to manufacture dangerous drugs and was only responsible for carrying the drugs. Upon an examination of the premises, a

government chemist gave ‍his expert opinion that the manufacturing of crack cocaine from cocaine ‍hydrochloride had taken place inside the premises. This led to Counts ‍2 ‍and 3 on the indictment. The total estimated retail value of all of the cocaine seized in the three counts was more than HK$1 ‍million. In a video recorded interview (“VRI”) conducted subsequently, the applicant admitted collaborating with D2 in the trafficking and manufacturing of dangerous drugs for monetary reward, because he was heavily in debt. He gave further details of his participation in the offences on the day he was arrested. The prosecution called three witnesses and adduced the written statements of three other witnesses pursuant to section 65B of the Criminal ‍Procedure Ordinance, Cap 221. The prosecution case was that there was a joint enterprise between the applicant and D2, in which D2 manufactured cocaine inside the premises to be delivered by the applicant. The prosecution case relied mainly upon (a) ‍admissions made by the applicant on two occasions following his arrest, which were postrecorded in the notebook of the relevant police officer and countersigned by the applicant; and (b) admissions contained in the applicant’s VRI. It was also the position of the prosecution that even without the post-recorded admissions and the VRI, there was sufficient circumstantial evidence for the jury to

draw the only irresistible inference that the applicant was trafficking in and/or manufacturing dangerous drugs. The defence case The applicant elected to give evidence but did not call witnesses. He said he was not in debt. On his first visit to the premises on the day in question, he was delivering soup to D2 at his wife’s request. D2 was not there at the time so he left to go to work after about 45 minutes. His second visit to the premises, at about 10:15 pm the same day, was at his son’s request, since he wanted to be driven to Kowloon. D2 handed over a plastic bag to the applicant and asked him to drive his taxi to the downstairs of the building and wait. He was then intercepted by the police on his way back to his taxi in the carpark. The applicant denied any knowledge of the contents of the plastic bag or any association with the drugs or drug-making equipment seized in the premises. He denied making the admissions recorded in a police notebook and claimed he was forced to sign the relevant notebook entries without being given a chance to read the contents, having been assaulted and threatened by police officers. Nor were the admissions in his VRI true. They were involuntarily and the result of extensive coaching by police officers as to what to say. Jury’s question on 17 June 2016 In the morning session of the hearing on 17 June 2016, the jury foreman made a written

request of the judge for a Cantonese interpreter to be provided for the closing speeches of the prosecution and defence, as well as the judge’s summing-up, “to ensure there is no misunderstanding”. The note was given to the judge at a time when the applicant was giving evidence. Accordingly, it was dealt on completion of the applicant’s testimony, after defence counsel had had an opportunity to speak to his client about the matter. After canvassing the issue with the parties, the judge proposed that an interpreter, who would provide live interpretation from English to Cantonese, should be engaged for the closing speeches of counsel and for her own summing-up. The jury would then be able to listen to the Cantonese translation of the speeches and summing-up via headphones, or listen to the English without using the headphones if they wished to. After their own discussions on the proposal, the foreman told the judge that headphones would not be needed. However, in view of what had occurred, the judge nevertheless ordered that headphones and an interpreter be available on the following Monday, so that the jury could make use of them if they needed to. The jury having then left court, and neither counsel said anything further about the judge’s proposal. The summing-up At an early stage of her summing-up, the judge addressed the question of inferences: “You are entitled to draw

inferences from the evidence if those inferences are the only reasonable ones you can draw from facts that have been proved so that you are sure about them. That means you may reach common sense conclusions based on the evidence which you accept. You must not speculate about matters that are not in evidence before you, or speculate about what other evidence there might have been.” (Emphasis supplied) Since it was the prosecution’s position that there was enough circumstantial evidence for the jury to draw an inference against the applicant, the judge provided a more detailed direction on what was meant by circumstantial evidence and how the jury should approach it. She concluded: “Sometimes circumstantial evidence might have more than one interpretation. It may be neutralised by other evidence. It may be neutralised by the accuracy of forensic evidence. On the other hand, does this evidence reveal any other circumstances which are or which may be sufficiently reliable and sufficiently strong to cast doubt upon or destroy the prosecution case? If you found that that was the case, you would be under a duty to acquit.” When the judge summarised the VRI evidence, the judge told the jury that if they were not able to rely on the VRI, they would have to consider whether there was sufficient circumstantial evidence to allow them to be sure that the applicant was guilty of the

manufacturing and trafficking counts. Towards the end of her summing-up, the judge returned to the issue of inferences: “You are entitled to draw inferences from the facts that you find proved but you may do that only if there is a reasonable inference that can be drawn. For the Video Interview you have to be satisfied it was not obtained under circumstances which might make it unreliable. If you are satisfied that it was obtained properly, you go on to consider whether the contents of the statement are true. If you are not satisfied it was obtained properly, you would go on to consider the circumstantial evidence and decide whether that is sufficient to make you sure of the guilt of the accused.” (Emphasis supplied) It is the italicised part of this direction which is at the heart of Ground 2. The grounds of appeal There are two grounds of appeal put forward by Mr Cheung on behalf of the applicant. Ground 1 avers that the applicant was deprived of a fair trial because of a material irregularity in the conduct of the trial, when the judge arranged for a simultaneous interpretation of counsel’s closing submissions and her summing-up. Accordingly, some jurors were permitted not to listen to an important part of the proceedings in the official language of the trial, which was English, but instead listened to the Cantonese translation, in circumstances where the completeness and

accuracy of the translation could not be verified by any record of the translation. Ground 2 alleges that the judge misdirected the jury on inferences. Ground 1 The language of the trial was English. Mr Cheung submitted that section 5 of the Official ‍Languages Ordinance, Cap 5 only allows a party to or a witness in any proceedings or legal representative (but not the jurors) to use Cantonese notwithstanding that English was designated by the judge as the language of the trial. The High Court is a court of record and it has a duty to keep a record correctly and in accordance with law. Mr Cheung acknowledged that it cannot now be ascertained how many of the jurors had in fact used the headphones to listen to the Cantonese interpretation of the closing speeches and summing-up. However, at the beginning of the second day of the summing-up on 21 ‍June ‍2016, the foreman notified the court that the battery of his device was running out, plainly suggesting that he was listening (or intending to listen) to the Cantonese translation. Mr Cheung points out that there is no record of the simultaneous Cantonese interpretation of the closing speeches and the summing-up, which some jurors may have listened to, because the audio-recording system in the courtroom only recorded the speeches of counsel and the summing-up in English. In the absence of any such record, it is not now possible to

know if there were any errors or omissions in the interpretation of the judge’s directions by the interpreter. Accordingly, the verdicts could not be said to be safe and satisfactory. Mr Cheung argued that the issue could not be resolved by assuming that the jurors understood English. Since interpretation was simultaneous, jurors using headphones would have been listening to the Cantonese interpretation of the summing-up, not the original English. Relying on HKSAR v Moala Alipate, Mr Cheung contended that the jurors could not have absorbed simultaneously what was being said in two different languages. Mr Cheung further argued that the risk of errors or omissions was inherently higher in simultaneous interpretation than in consecutive interpretation. Indeed, as the transcript of the proceedings reveals, the interpreter occasionally sought clarification from counsel and the judge when interpreting the testimony of a witness. In the course of the summing-up, the interpreter also indicated at one point that she could not hear clearly, because the sound reception was poor. This led to the judge switching her own amplifier off. It was further argued that the problem presented by Ground 1 was exemplified by Ground 2. If any misinterpretation could not be ascertained in the absence of a record of the Cantonese interpretation, the Court of Appeal would not be in a position to determine

whether there was in fact any misdirection in relation to Ground 2. Ground 2 It is argued that the judge failed to direct the jury accurately and adequately as to their approach to the drawing of inferences, since, firstly, the judge omitted to explain to the jury that “if from a set of facts which you find proved there is a reasonable inference to draw against the defendant as well as one in his favour, then you must not draw the adverse inference”, as provided for in Specimen Direction 21.3. Secondly, the judge adopted the term “neutralised” in her direction on circumstantial evidence, suggesting a balancing exercise between those inferences in favour of the prosecution and those in favour of the defence, which expression finds no place in the Specimen Direction and was capable of causing confusion and misunderstanding. Mr Cheung contended that these departures from the Specimen Direction were similar to the vices identified by the Court in HKSAR v Chan Man Sum Ivan. Respondent’s submissions in reply Ground 1 Power to make the arrangement Mr Lo, on behalf of the respondent, submitted that the judge did have the power to make the relevant translation arrangement, which was exercised judicially and fairly. Section 5 of the Official Languages Ordinance provided that the court may use either or both languages in any proceedings, or part of any proceedings, before it as it thinks

fit, and its decision is final. The right to employ or utilize the language by a legal representative does not imply a reciprocal obligation on the part of the court to speak and read the language concerned: see HKSAR v Kong ‍Lai ‍Wah and Re Cheng Kai Nam. The judge also made it clear to the jury that the effect of the arrangement was to allow the jury to listen to the speeches and summing-up in English but, if they wished to, they could avail themselves of the simultaneous Cantonese translation. Mr Lo said that it should be noted, firstly, that defence counsel had taken instructions on the matter and neither of the parties had any objection to the course proposed by the judge. Secondly, the judge confirmed with the jury that they understood what had hitherto been said in the proceedings. Thirdly, after discussion amongst the jury members, the foreman indicated that no translation was actually required. The arrangement was, therefore, an ancillary one which did not affect the fair conduct of the trial. Mr Lo further contended that there was no basis for thinking that any of the jurors did not sufficiently understand English. No issue about language ability had ever been raised either by the parties or the jury itself. Even if a juror had listened to the Cantonese translation at one particular point did not mean that he did not listen to the English. Jurors were further provided

with a set of written directions on the law by the judge as part of her summing-up. An appellate court is concerned with a “real risk”, rather than a “speculative risk”, of an injustice being done. The emphasis on a “real risk” highlights the speculative nature of the applicant’s present assertion that there was risk of juror(s) having listened to a potential unverifiable mistranslation affecting the safety of the conviction. Mr Lo contended that Moala Alipate could be distinguished on its facts. In the present case, the interpreter was a full-time judiciaryappointed interpreter, whose proficiency was not challenged at the trial or in the present application. In R v Tran, the Supreme Court of Canada held that the applicant had to show on the balance of probabilities that the interpretation had fallen below the guaranteed ‍standard of interpretation, which may be tested by the ‍requirements ‍of ‍continuity, precision, impartiality, competency and contemporaneousness. The instances where the interpreter had taken the initiative to clarify matters with the speaker demonstrated conscientiousness and professionalism, and a high standard of interpretation. The request for a translation by the jury was made before the closing speeches and the summing-up. It was not directed to the substance of the speeches and the summing-up. The arrangement was no more than ancillary in nature and

could be seen as an additional safeguard if any juror needed to listen to Cantonese translation. Ground 2 Mr Lo submitted that the judge’s directions on inferential reasoning had to be read in the context of the summing-up as a whole, following on immediately as it did from counsel’s speeches. The judge’s reference at the outset of her summing-up to “the only reasonable inference” came immediately after defence counsel had used the same expression in his closing address. Even if the impugned direction was not a verbatim recitation of the Specimen Direction, it encompassed in substance all the essential elements of that special direction. When the summing-up was read as a whole, there could be no room for the jury’s possible misunderstanding. The judge had directed the jury that they were under a duty to acquit if a piece of evidence revealed any other circumstances which were, or which might be, sufficiently reliable and sufficiently strong to cast doubt upon or destroy the prosecution case. Discussion I have set out the respective arguments of the parties in some detail on Ground 1 to demonstrate that there are reasonable arguments to be made by both sides. Having come to that conclusion, it is neither necessary nor advisable for me to resolve those arguments at the leave stage. However, I desire to make these observations. First, I am not happy that no enquiries have so far

been made of defence counsel at trial as to his explanation of events. As has now been made clear in HKSAR v Apelete (No 1), it is the duty of fresh legal representatives coming into an appeal, where assertions are made that something happened at the trial which should not have happened, even where there is no allegation of flagrant incompetence, “to make enquiries of the previous legal representatives as to what was done, or not done, and why”. Fresh counsel on appeal should then certify that that duty has been complied with. In this case, defence counsel at trial would be able to explain why he agreed to the use of headphones by jurors, whether any of them actually used them, how they used them, whether he or members of his legal team used them or listened to the interpretation of the summing-up and, if so, whether there were any concerns or complaints about that interpretation. These enquiries must now be made of both trial counsel and his solicitor (or solicitor’s representative) before the matter comes before the Court of Appeal. Secondly, I have since the hearing made enquiries of the interpreter’s office and established that a set (or sets) of transmitters/receivers with ear plugs were given by the interpreter to the jury. These are the same transmitters/receivers with ear plugs that are sometimes used where there are multiple defendants in the dock, and there is a

request by some defendants who need it to receive translation without distracting others who do not. I shall cause to be sent to the parties a photograph of the devices in question and they are free to apply to inspect the same before the appeal hearing. I shall grant leave to appeal on Ground 1. In respect of Ground 2, as the Court of Appeal has repeatedly stated, particularly where there is a complaint about a judge’s directions on inferences, that a summing-up must be read as a whole to see whether the correct message has been conveyed to the jury. The italicised part of the direction (at para 16 above) made it clear that the jury could draw inferences if they were the only reasonable ones they could draw from proved facts. This direction was given at the outset of the summing-up. The direction, about which particular complaint is made (at para 19 above), came at the end of the summing-up and reminded the jury that they could draw inferences from facts they found proved only if there is a reasonable inference that can be drawn. Complaint is made that the judge should have said, consistent with her earlier direction, that the inference must be the only reasonable inference to be drawn. In other words, the word only has been misplaced in the direction. Not only did the judge emphasise the burden and standard of proof in a criminal case, she repeatedly made clear that if the

account given by the applicant was, or may be, true, then the applicant must be acquitted. Further, with regard to circumstantial evidence, she told the jury that if there was any other circumstantial evidence sufficiently reliable and strong to cast doubt on the prosecution case, they were under a duty to acquit. Reading the summing-up as a whole, I do not think it is reasonably arguable that the jury might have adopted an inference unless it was the only reasonable inference to draw. I refuse leave to appeal on Ground 2. Accordingly, the applicant is granted leave on Ground 1 of his perfected grounds of appeal and refused leave on Ground 2. (Andrew Macrae) Vice President Mr Andy Lo SPP, of the Department of Justice, for the Respondent Mr Eric TM Cheung, solicitor advocate, of ONC Lawyers, assigned by the Director of Legal Aid, for the Applicant