HKCA 184,  HKEC 440
Court of Appeal
Criminal Appeal Number 320 of 2016
Poon CJHC, Lam VP and Macrae VP
25 March 2020
In August 2019 we reported on the case of HKSAR v Moala Alipate 2019 [HKCA] 537 (https://www.mcs.com.hk/uncategorized/interpretation-at-trial-2/) where the Court of Appeal had allowed an appeal after an inexperienced interpreter at trial had been able to interpret only 20-30% of what had been spoken in trial resulting in a fundamental failure in the provision of interpretation facilities for the Appellant such that he had not had a fair trial. The issue arose again in HKSAR v Gutierrez Alvarez  HKCA 184 where it was argued that the Appellant did not receive a fair trial firstly because there was no dockside recording of what the interpreter said to the Appellant when interpreting the proceedings and secondly, the interpretation was in fact deficient.
The Court of Appeal appointed amici curiae to assist the Court and reviewed the position across a number of common law jurisdictions. In giving the judgment of the Court, Macrae VP determined 8 important matters of principle as follows:
- The test for determining whether interpretation complies with a defendant’s right to have interpretation at trial is whether the interpretation is sufficient to safeguard the fairness of the trial by giving the defendant an adequate understanding of the case against him, so as to enable him effectively to put forward his defence;
- Sufficiency does not mean perfection (Abdula v R  1 NZLR 534 and R v Tran  2 SCR 951);
- It is for the Appellant to show that the standard of interpretation was below standard and impacted on his understanding of the case or the conduct of his defence (Abdula and Tran, supra) and to establish on the balance of probabilities that there was a real risk of his defence being impeded (Abdula supra);
- It was sufficient for an appellate court to find that an Appellant might have been prejudiced as a result of misinterpretation (Lee v HM Advocate  HCJAC 39);
- In assessing a complaint about the quality of interpretation at trial, an appellate court must have regard to the overall context and circumstances of the trial, the complexities of the evidence, the essential issues in the case and how any alleged deficiencies in translation may have borne, or impacted, on those issues. It is not enough simply to make vague assertions about the quality of interpretation and how it might have been improved;
- The authorities from the various jurisdictions (save perhaps Tran supra) all consider the absence of any complaint by the defendant or his counsel at trial in respect of the interpretation provided to be of significance;
- It is relevant to consider at what part or section of the proceedings the complaint of deficiency in interpretation is directed and its significance to the particular issues in the case (HKSAR v Chan Ka Chun (2018) 21 HKCFAR 284) and to distinguish between material and immaterial parts of proceedings (Tran supra) taking care to determine whether the defendant’s vital interests may have been affected. The onus remains firmly on the Appellant to demonstrate what of the interpretation is deficient, how it may have impinged on the conduct of his trial and how, ultimately, it affected the fairness of the trial.
- In most trials, the defendant will be legally represented. Much depends on the circumstances and context of the alleged non-interpretation or misinterpretation. It is for the Appellant to establish how he was or may have been affected by the deficiency in translation.
The Court of Appeal went on to say that the courts must proceed on the assumption that a professionally appointed interpreter has accurately and faithfully interpreted whatever he or she is required to interpret unless a defendant or appellant can demonstrate otherwise. The burden is on the Appellant to demonstrate on the balance of probabilities that any deficiencies in the interpretation fell short of the standard expected as to imperil a fair trial. Moala (supra) was a highly exceptional case with its own facts.
In the present case the Appellant had been represented throughout the trial by solicitors and counsel and another interpreter had been appointed by the Director of Legal Aid to assist the Applicant and her legal team. No complaint had been made to the trial judge about interpretation. In this appeal no specific aspect of the proceedings that was not interpreted, or was misinterpreted to the Appellant, thereby affecting the way she conducted her defence, had been identified. Indeed no issue had been made of interpretation until re-amended grounds of appeal were filed over 2 years after the conviction.
No other jurisdictions (except New Zealand) are troubled by the absence of a record of what passes between an interpreter and the defendant in the dock. There was no basis in this appeal to find that the interpretation fell short of the required standard so as to affect the way she may have conducted her defence or to establish she did not have fair trial. This ground of appeal was therefore dismissed. Other grounds of appeal were also dismissed and the conviction was upheld.
This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: HKSAR v GUTIERREZ ALVAREZ Keishu Mercedes