HKSAR v Moala Alipate
Court of Appeal
Criminal Appeal No 135 of 2017
McWalters, Poon and Zervos JJA
26 February, 16 May 2019

Criminal law and procedure — trial — entitlement to interpretation facilities — component of right to fair trial — inadequacy of interpretation resulting in denial of fair trial

D was convicted of unlawful trafficking in dangerous drugs found concealed in game consoles contained in a black travel bag which he was pulling in the departure hall in the airport from which he was due to take a flight to Auckland. In the witness box, D denied knowledge of the drugs and said that he had been duped into carrying them. At the trial, he had the services of a court-appointed Tongan interpreter (the “Interpreter”). The interpretation was dockside interpretation which was simultaneous rather than consecutive in that the speakers did not wait for what they said to be translated to D before continuing. D applied for leave to appeal against his conviction. Seven grounds of appeal were argued on his behalf. Ground (2) was that when summing-up, the Judge spoke too rapidly for the Interpreter fully to interpret the summing-up to the jury. Ground (3) was: (a) that the Interpreter’s lack of experience resulted in his inter alia (i) being unable to keep up with translation; (ii) mistranslating parts of the evidence; (iii) failing to translate or correctly translate the evidence; and (iv) omitting evidence; and that (b) the foregoing led to an overall standard, accuracy and quality of interpretation that resulted in unfairness to an extent which deprived D of a fair trial. With the Court of Appeal’s leave, D called the Interpreter to give evidence on appeal.

Held, granting leave to appeal, treating the hearing as the appeal and allowing the appeal on Grounds (2) and (3) by quashing the conviction and order a retrial, that:

1) As to whether D needed an interpreter, the threshold for need was met in the circumstances (Abdula v R [2011] NZSC 130 applied). (See para. 42.)

2) Under the Hong Kong Bill of Rights, persons facing criminal charges were entitled by virtue of art. 11 to interpretation facilities, and such entitlement was a component to the art.10 right to a fair trial. That was also the position at common law (Kunnath v The State [1993] 1 WLR 1315 applied). (See paras. 44–45.)

3) The Interpreter’s frank evidence was that he was only able to interpret 20–30 percent of what was said and settled on trying to convey, as best he could, the gist of what was said. He was trying to perform a service which he admitted was beyond him. It was a service which he had never performed before and which he only agreed to perform because no one else was available. Consequently, there was a fundamental failure in the provision of interpretation facilities. D had not received a constitutionally compliant standard of interpretation service and consequently had not received a fair trial (R v Tran [1994] 2 SCR 951, Abdula v R [2011] NZSC 130 applied). (See paras. 66–69.)

4) The pace at which the Judge spoke was too rapid in that – but only in that – it was too rapid for the Interpreter, who was not a professional interpreter and lacked the skills needed to provide simultaneous interpretation. (See para. 72.)

5) It was in the interests of justice to order a retrial. (See para. 73.)

Appeal

This was an appeal against conviction for trafficking in dangerous drugs after trial before Deputy Judge Douglas Yau and a jury in the Court of First Instance. The facts are set out in the judgment.

Editorial Note: This judgment deals in detail with the standard of interpretation facilities for which the right to a fair trial calls.

Jurisdictions: