Denise Souza and Kim J McCoy appeared for the Applicant in HKSAR v GUTIERREZ ALVAREZ Keishu Mercedes, CACC 320/2016, in which the Court of Appeal (Hon. Poon CJHC, Lam VP and Macrae VP) handed down its judgment on 25 March 2020.
The Applicant had been convicted of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drug Ordinance, Cap 134, and sentenced to 25 years’ imprisonment. Four separate grounds of appeal were advanced in the Court of Appeal.
In the hearing of the appeal, the Court of Appeal decided to deal with the Applicant’s fourth ground of appeal first, a systemic challenge that the Applicant did not receive a fair trial as a result of the lack of dockside audio recording of the interpreter’s translation of proceedings to the Applicant (“Ground 4”), as if the Applicant was infact deprived a fair trial, it would be determinative of the appeal. Furthermore, the Court of Appeal had instructed amicus curiae to assist on this ground of appeal alone.
In dismissing the Applicant’s application for leave to appeal against conviction and sentence, the Court of Appeal considered the common law right to interpretation as an essential component of a defendant’s right to a fair trial, from which a number of important matters of principles emerged: –
- the test for whether interpretation complies with a defendant’s right to have interpretation 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: the focus is 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;
- it is for the appellant to show that the standard of interpretation fell below the standard required, and impacted on either his understanding of the case or his conduct of his defence;
- it is necessary for the defendant to show a “real risk of an impediment to the conduct of the defence”;
- the consequences of any deficiency must be looked at in the overall context of the particular trial and the issues it raises;
- whether there was, by the defendant or by counsel, any complaint made about the interpretation provided to him during the currency of the trial;
- 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; and
- in most contested cases, the defendant will be legally represented.
In relation to the systemic challenge regarding the lack of dockside recording, the Court of Appeal concluded that the practice in other jurisdictions are not conclusive, with the United Kingdom, Australia, Canada and Singapore Courts not troubled by the absence of a record of what passes between an interpreter and defendant in the dock. The exception was New Zealand where there is such a recording. However, the Court of Appeal did not think such a practice was either a functional necessity nor sina qua non of a fair trial of the accused in Hong Kong, as what was fundamentally required was that the interpretation was of a sufficient quality for the defendant to be able to understand the proceedings and conduct his defence effectively.