HKSAR v Gutierrez Alvarez [2020] 2 HKC 457

Robert Pang SC (leading Denise Souza and Kim McCoy) appeared for the applicant in the Court of Appeal in HKSAR v Gutierrez Alvarez [2020] 2 HKC 457.

The applicant, a Spanish-speaking Venezuelan national, arrived at Hong Kong airport in August 2015 from Brazil, via Abu Dhabi with packets of cocaine strapped to her legs. She was prosecuted for trafficking in a dangerous drug and was tried before a judge of the Court of First Instance sitting with a jury. The prosecution contended that when arrested, the applicant had made no mention of the duress that she later claimed she was acting under. The following day, in a video-recorded interview (VRI), the applicant claimed that she had been tricked into leaving her home in Venezuela for Brazil in the belief that she had been offered a job there. However, when she arrived in Brazil, she was taken to meet an African male and detained against her will, during which time she was threatened, beaten and raped. She was then told to take some ‘stuff’ to Hong Kong under threat that her family in Venezuela, including her three year old child, would be killed if she did not cooperate. At trial, the applicant sought a permanent stay of proceedings, on the basis that a fair trial as not possible; or, alternatively, that to continue with the proceedings would be an abuse of process, amounting to an affront to the public conscience. Evidence was adduced by the prosecution and the defence, though the applicant did not herself give evidence on the issue. The judge ruled against the applicant on the stay application and reduced the reasons for her decision into writing after conviction. Before the jury, the applicant did not testify, but relied on what she had said in the VRI that she was acting under duress when she committed the offence. The applicant was convicted after trial and sentenced to 25 years’ imprisonment. The applicant applied for leave to appeal against conviction and sentence. In relation to conviction, the applicant contended that: Ground 1, the judge wrongly refused to grant the applicant a permanent stay of proceedings, where it was submitted that a failure on the part of the prosecution to investigate the applicant’s claims that she was forced to commit a crime she would not otherwise have committed was an abuse of process of the courts; Ground 2, the applicant’s counsel at trial had failed to cross-examine on certain matters; Ground 3, the applicant’s counsel had failed to advise the applicant that she must give evidence in order to have any chance of establishing her defence of duress; and Ground 4, the applicant did not receive a fair trial because of the lack of a dockside audio recording of the court-appointed Spanish interpreter’s translation of proceedings to the applicant, which otherwise would have enabled the applicant to effectively participate in the proceedings and give informed instructions to her counsel and solicitor on all matters, including her election as to whether to give evidence in court and also the appellate court to verify whether the interpretation was in fact correct and thereby to determine whether the applicant had a fair trial and because of the deficient interpretation of the Spanish interpreter, referring to occasions that the interpreter allegedly had difficulty following and interpreting the submissions of counsel and exchanges between judge and counsel and that led to sometimes fragmented and incoherent interpretation. The Court of Appeal appointed amici curiae in respect of Ground 4 and asked for information on the practice and procedure in criminal courts in common law jurisdictions when a defendant spoke a language other than the language of the court and was provided with an interpreter, in particular, whether, in addition to the official record of proceedings, there was any record kept of what was said between the interpreter and the defendant in the defendant’s language whilst the defendant was in the dock. The Court of Appeal also received an explanation from trial counsel in relation to Ground 2. In relation to sentence, it was contended, inter alia, that the judge had given no consideration for the applicant’s lesser involvement in the offence.

Held, unanimously, refusing leave to appeal against both conviction and sentence and dismissing the appeal:

Per Macrae VP

Appeal against conviction

Ground 4: No dockside recording

(1) The practice and procedure in all the common law jurisdictions consulted about recording trial proceedings where an interpreter assisted a defendant, was similar to that operating in Hong Kong, ie proceedings in open court were audio recorded and a transcript of proceedings was transcribed in the language of the court. With the sole exception of New Zealand, no other record was made of any communication between the interpreter and the defendant in the dock (para 27).

(2) The test for determining whether interpretation complied with a defendant’s right to have interpretation under art 11(2)(f) of the Hong Kong Bill of Rights was whether the interpretation was 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 did not mean perfection. The essential focus in respect of a complaint about interpretation was not so much on what was interpreted, but on whether what was interpreted gave the defendant an adequate understanding of the proceedings to enable him effectively to play his part in them. R v Tran [1994] 2 SCR 951 and Abdula v R [2012] 1 NZLR 534 applied (paras 32, 33).

(3) It was for the applicant to show that the standard of interpretation fell below the standard required, and impacted on either his understanding of the case or the conduct of his defence. The applicant must show, as a result of the poor quality of the interpretation, that there was ‘a real risk’ of his defence being impeded, or as a result of misinterpretation, that he might have been prejudiced. In most cases, it was possible and feasible for an applicant to tell an appellate court, having looked at the appeal papers with the benefit of legal advice and a translator, what it was that was not translated or mistranslated, or what it was that he did not understand, that so affected the way he in fact conducted his defence. The appellate court would not assume that a deficiency in translation per se rendered the trial unfair in the absence of consideration of how that deficiency had, or might have, impacted on the defendant’s understanding of the proceedings in a material way so as to imperil his right to a fair trial. Abdula v R (above), Kamasinski v Austria (1991) 13 EHRR 36 and Lee v HM Advocate [2016] HCJAC 39 applied. R v Tran (above) not followed (paras 33-43).

(4) 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 was not enough simply to make vague assertions about the quality of interpretation and how it might have been improved. The absence of complaint on the part of the defence at trial was significant. It was relevant to consider at what part or section of the proceedings the complaint of deficiency in interpretation was directed and its significance to the particular issues in the case. There were some parts of the evidence in a trial which may not, in the overall context of the trial, be material or significant to the issues before the jury. Whether deficiencies in interpretation of a summing-up could realistically affect a defendant’s vital interests depended on the circumstances of each case and the context of the alleged non-interpretation or misinterpretation. The onus remained firmly on the applicant to demonstrate what of the interpretation was deficient, how it might have impinged on the conduct of his defence and how, ultimately, it affected the fairness of the trial. Finally, it should not be forgotten that in most contested cases, the defendant would be legally represented. While this was not a conclusive answer to a complaint of a deficiency in interpretation (which is a right belonging to the defendant, not his legal representatives), the person who would generally be most concerned with, for example, the terms of a ruling on a matter of law or the content of a summing up, and the person best equipped to deal with any issues arising from them, would be the defendant’s counsel. This proposition was not infallible, for it was not unknown for defendants to notice mistakes or omissions, which counsel may not. HKSAR v Chan Ka Chun (2018) 21 HKCFAR 284 ; [2018] HKCU 2111 and HKSAR v Moala Alipate [2019] 4 HKC 136 ; [2019] 3 HKLRD 20 applied. R v Tran (above) and Abdula v R (above) distinguished. Lee v HM Advocate (above), Kamasinski v Austria (above), HKSAR v Apelete (No 2) [2019] 5 HKLRD 602 ; [2019] HKCU 4405 and Stanford v The United Kingdom, Application No 16757/90 considered (paras 44-58).

(5) Given the exceptional and rightly regarded high quality of interpretation from Chinese into English and vice versa in the Hong Kong courts, the Court of Appeal must proceed on the assumption that a professionally appointed interpreter had accurately and faithfully interpreted whatever he or she was required to interpret unless a defendant or appellant could demonstrate otherwise on a balance of probabilities. It should be remembered that the more experienced an interpreter, as they would necessarily be in the High Court, the more familiar the interpreter would be with the procedures, practices and language of the court, including the standard directions that were routinely given by judges to juries. Occasionally mistakes were made, but the court was not prepared to presume any deficiency in interpretation unless it was properly established, and unless it could be demonstrated that the fairness of the trial had been thereby compromised. Although interpreters translating from other languages than Chinese into English and vica versa were not full-time employees of the Judiciary Administration, those of them translating in the High Court were, in the case of the more frequently encountered languages, also very experienced and accomplished interpreters. Provided that the interpreter was skilled in the language spoken or understood by the defendant, the Court of Appeal must also proceed on the basis that his or her interpretation was accurate and faithful until shown otherwise on a balance of probabilities. The Court of Appeal must also proceed on the basis that the interpreter had been faithful to his or her oath until it could be demonstrated otherwise. HKSAR v Moala Alipate [2019] 4 HKC 136 ; [2019] 3 HKLRD 20 distinguished (paras 63-64, 79).

(6) Whilst it would usually be necessary to convey an important witness’s evidence to a defendant as accurately and faithfully as possible, even where it might be rambling and obtuse, the Court of Appeal would not say that a summary or narration of evidence, or of a submission or of an exchange between counsel and the judge, must ipso facto fall short of the standard required of interpretation. Other submissions might, on occasion, be difficult to understand even by someone speaking the same language. What was necessary was that the point being made was sufficiently understood by the receiver of the translation. Nor was the Court of Appeal prepared to be drawn on the relative merits of ‘simultaneous’ as against ‘consecutive’ interpretation. Much would depend on what was being translated and the abilities of the interpreter. What was important was that the interpretation be contemporaneous (para 69).

(7) It was incumbent on the defence to raise matters on the quality of interpretation at trial, so that steps could be taken to remedy them, there and then. It was plainly unsatisfactory and unfair to the interpreter, as well as the legal representatives at trial, to raise the matter for the first time at an appeal, sometimes years after conviction, when memories of what happened and what was said at trial would have faded or disappeared. If there was a valid complaint, it should be raised as soon as possible so that it could be addressed. R v Titchener (2013) BCCA 64 applied. HKSAR v Apelete (No 2) (above) considered (para 76).

(8) In the present case, there was no basis to find that the interpretation given to the applicant at trial fell short of the required standard, thus causing her to have an insufficient understanding of the proceedings, so as to affect the way she might have conducted her defence. The issues at trial for the jury were, as the judge explained at the outset of her summing-up, whether the applicant knew that she was bringing dangerous drugs into Hong Kong; and whether she was acting under duress when she did so. They were relatively straightforward factual issues for the jury in a trial in which the evidence before them lasted for two days. Neither issue would have been difficult for the applicant to appreciate and the interpreter to understand. The directions of law which bore on those issues were standard and correct, and no complaint was made about them in this appeal. It was not accepted that, in order to demonstrate an alleged deficiency in interpretation, the applicant needed, as a matter of right or practical necessity, a transcript of what passed between her and the interpreter in Spanish. There was an official record of court proceedings kept in English. The applicant had a different interpreter to help in the appeal. Neither the applicant by way of affidavit, nor counsel by way of submission, had been able to point to any specific aspect of the proceedings that was not interpreted, or was misinterpreted, to the applicant leading her not to understand, or to misunderstand, that part of the trial, thereby affecting the way she conducted her defence to her detriment. The applicant’s only complaint was she did not understand the concept of duress during the summing up. Leaving aside the issue of whether this alleged deficiency could be said to have affected the vital interests of the applicant when it arose during the summing-up after the evidence was closed, the applicant had not explained how her supposed inability to understand the judge’s direction on this matter, which was in complete conformity with the relevant Specimen Directions on Jury Trials, and about which direction no complaint was made in this appeal, could in any way have affected the way she conducted her defence, thus depriving her of a fair trial. It would defy belief that the applicant did not understand the concept of ‘duress’ and what it entailed at law, when her whole defence was founded upon it. Such other particulars as the applicant had given of unclear, broken, incoherent or interrupted translation, resulting in her feelings of anxiety, confusion and concern that she was not getting a full and accurate interpretation of proceedings, remained vague and amorphous assertions, for which she had not attempted to identify what she did not understand of any particular aspect or part of the proceedings, and how it affected the conduct of her defence. R v Titchener (2013) BCCA 64 applied (paras 70-73, 76, 85-88).

(9) The practice in other jurisdictions was not conclusive in answering the systemic challenge in the present appeal. What it did show, however, was that the United Kingdom, Australia, Canada and Singapore were not troubled by the absence of a record of what passed between an interpreter and the defendant in the dock; notwithstanding the application in some of those jurisdictions of constitutional guarantees of the right of interpretation in criminal trials. The same might be said of European Court of Human Rights jurisprudence. The exception was New Zealand where a separate recording of what passed between the interpreter and the defendant was considered ‘best practice’. Such a practice was neither a functional necessity, nor should it be viewed as a sine qua non of a fair trial of the accused in Hong Kong. A record of an interpreter’s translation to a defendant in the dock was not required under any constitutional or human rights instrument; nor, for that matter, was a verbatim recording of proceedings. What was required was that the interpretation be of sufficient quality for the defendant to be able to understand the proceedings and conduct his defence effectively. Abdula v R [2012] 1 NZLR 534 distinguished (paras 81-83).

Ground 1: Application for stay

(10) The judge could not be faulted in declining to criticise the conduct of the prosecution or in her refusal to stay proceedings on the basis of the materials before her. There was no reason to disagree with the views of the prosecution, the assessment of the judge or the verdict of the jury on the credibility of the applicant’s claim, which was based on her bare assertions in the VRI. The applicant’s case was not one where the question of whether the alleged treatment of the applicant could amount to ‘human trafficking’, within or without the meaning of art 4 of BORO, would need to be considered because there was no credible case that the applicant was ever a victim of such trafficking. HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133 ; [2001] HKCU 1460 and HKSAR v Lee Ming Tee & Securities and Futures Commission (2003) 6 HKCFAR 336 applied. ZN v Secretary for Justice (No 2) [2017] 1 HKC 340 ; [2017] 1 HKLRD 559, R v Joseph (Verna) [2017] 1 WLR 3153, ZN v Secretary for Justice [2018] 3 HKLRD 778 ; [2018] HKCU 2595 and Rantsev v Cyprus and Russia (2010) 51 EHRR 1 considered (paras 100-103, 109).

Ground 2: Failure of counsel to cross-examine

(11) In the absence of a complaint of flagrant incompetence as to the course trial counsel took, which thereby undermined the fair trial of the applicant, the complaint of failure of counsel to cross-examine could not be taken very far at all. The complaint made in the present case did not come anywhere near the sort of exceptional circumstances which might cause the appellate court to impugn the course taken by trial counsel, thereby justifying its intervention in order to avert a miscarriage of justice. Trial counsel had explained why did what he did and he could not be faulted in the decision he took for the reasons he explained, even if another counsel, who was not involved in, or familiar with, the dynamics of the trial, might have taken a different view on appeal. Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126 ; [2004] HKCU 464 applied (paras 112-113).

Ground 3: The failure to advise

(12) The Court of Appeal did not accept that the applicant did not receive appropriate advice as to whether or not she should give evidence and the consequences of her decision. Trial counsel properly advised his client on the issue, which was prefaced and fortified by what the judge herself said in earlier exchanges with counsel before the applicant made the election. The court did not accept that the applicant’s decision in respect of giving evidence was uninformed, or that there could be any criticism of counsel or solicitor involved. There was no substance in this ground (paras 126-128).

Appeal against sentence

(13) The evidence established, at the very least, that the applicant was a courier. The judge’s adoption of a starting point of 23 years’ imprisonment, which was at the lowest level of the applicable range of sentences available under the Abdallah guidelines, could not be criticised; nor could the enhancement of 2 years’ imprisonment for the international element involved, by bringing such a significant quantity of dangerous drugs over the border into Hong Kong. The applicant was not at any stage exploited. She knew exactly what she was doing when she trafficked a large quantity of cocaine across the world from South America, through the Middle East, to Hong Kong. HKSAR v Abdallah [2009] 2 HKC 197 ; [2009] 2 HKLRD 437 applied (paras 131-134).

(The above headnote is taken from HKC)

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