Hong Kong’s top court has ordered a retrial for a taxi driver sentenced to 26 years in jail for drug trafficking because no record was kept of the simultaneous interpretation in Chinese during the original trial proceedings, contravening the principle of open justice.
Defendant Chan Hon-wing was arrested by police in 2014 after he was found to be in possession of one kilogram of cocaine. After a jury trial at the High Court, he was found guilty and sentenced for trafficking and manufacturing dangerous drugs.
Towards the end of Chan’s trial, which was conducted in English, the jury requested a Chinese interpreter. The jurors were subsequently given headsets through which a Chinese interpretation was delivered. Some jurors then listened to the Chinese interpretation, while others listened to the original version in English.
There was no record of which version of the audio each juror listened to, and no record of the Chinese translation.
In his appeal, Chan argued that the arrangement deprived him of a fair trial.
In their judgement released on Thursday, five Court of Final Appeal justices held that the arrangement did not exclude the possibility of misinterpretation.
“The simultaneous interpretation did not allow the listener to hear both the speech in its original language and its translation, and so translation errors could not be detected immediately,” they said.
“[T]here was no record of the translation, so that there was no way to assess what some jurors heard, and thus no way of ascertaining whether there were any misinterpretations.”
Regardless of whether the interpretation was of a high quality, jurors received different sets of instructions from the judge, depending on the version they listened to.
Violation of open justice
These problems in the arrangement led to concerns that they violated the principle of open justice, “under which ‘justice must not only be done, it must be seen to be done’,” the justices wrote.
Moving forward, the justices said judges should exercise discretion to discharge a particular juror rather than seek to mitigate the issue if it became clear that his or her knowledge of a language may be insufficient to understand the proceedings.
It would also be preferable to conduct consecutive interpretation in open court instead of using simultaneous interpretation, they said.
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