Criminal Law and Procedure
HKSAR v Moala Alipate  HKCA 537
Court of Appeal
Criminal Appeal No 135 of 2017
Before: Hon McWalters JA, Poon JA and Zervos JA
Date of Judgment: 26 February 2019
Criminal law – trial – fair trial – right to interpretation assistance
On arrival at Hong Kong Airport the Applicant was intercepted and searched whereupon Police found dangerous drugs hidden inside game consoles contained in a travel bag carried by the Applicant. The issue at trial was whether the Applicant had knowledge of, and custody and control of the drugs.
The Applicant, a Tongan national, had given evidence in his trial to explain the circumstances as to how he came to be in possession of the drugs. His evidence was interpreted to the jury by a judiciary appointed Tongan interpreter.
At his appeal against conviction it was argued inter alia that:
- The judge had failed to maintain an adequate speed in his summing-up as a consequence of which the interpreter had been unable to fully interpret the summing-up; and
- The lack of experience of the interpreter resulted in the interpreter being unable to keep up with the translation; mistranslating parts of the evidence; failing to translate or correctly translate the evidence; and omitting evidence which led to an overall standard, accuracy and quality of interpretation that resulted in unfairness to such an extent that the Applicant was deprived of a fair trial.
The Tongan interpreter at trial was called to give evidence in the appeal and gave evidence that he was only able to interpret 20-30% of what had been spoken and was unfamiliar with key words and phrases and therefore could only do his best to convey the gist of what had been said
Held, allowing the appeal:
- A defendant’s right to interpretation in the determination of any criminal charge against him is contained in Articles 11(2) (a) and (f) of the Hong Kong Bill of Rights. The common law has also always recognised interpretation as an essential component of the right to a fair trial, so that a defendant can meaningfully participate in his own trial.
- The interpretation assistance provided must be of a standard which ensures the defendant will be able to understand what is taking place in court and not be prejudiced by any linguistic disadvantage in his right to defend himself. However, given practical difficulties associated with translation, it only needs to be true and accurate, not perfect (HKSAR v Chan Ka Chun (2018) 21 HKCFAR 284, HKSAR v Saeed Ur Rehman  4 HKLRD 135 considered).
- The interpreter, who had never acted as a court interpreter before and had been called on to assist in the Applicant’s trial on an urgent basis, gave credible and compelling testimony in the appeal of his own difficulties in performing the task of interpreter. He had not been able to translate everything to the Applicant that the judge had said to the jury which had been without a script and simultaneous to the judge’s summing up. The interpreter himself assessed his own overall quality and level as a Tongan speaker at about 70%.
- It followed that there was a fundamental failure in the provision of the interpretation facility as a result of which the Applicant had not received a fair trial.
- The Court of Appeal quashed the conviction, set aside the sentence and ordered a retrial.
This appeal was handled by our Christopher Morley and William Johnson instructing Gerard McCoy SC, Nisha Mohamed and Adrian Lo
This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: Interpretation at Trial