HKSAR v Saeed Ur Rehman
 4 HKLRD 135
Court of Appeal
Criminal Appeal No 257 of 2017
McWalters, Poon and Zervos JJA
9 August 2018
Criminal law and procedure - trial - fair trial - whether evidence of defence witness misinterpreted - whether misinterpretation deprived defendant of fair trial or rendered conviction unsafe or unsatisfactory
Criminal evidence - misinterpreted evidence - whether deprived defendant of fair trial
The appellant was D2 at trial. He was convicted of attempted burglary. His co-defendant (X) pleaded guilty to the charge and admitted the summary of facts as true and correct, namely that X was using a crowbar to prise open the window of a flat on 7/F (the Flat) while D2 was looking around and that when police approached, D2 shouted and he and X ran towards the staircase. At trial, D2 testified that he was in the building to collect money from a friend on 8/F; he did not know X or assist him to break into any flat or see him use a crowbar. X gave evidence as a defence witness through an Urdu/English interpreter, stating that he did not know D2; he was with someone else at the location; and only after his arrest did he see D2. Under cross-examination, X was asked whether the summary of facts or his testimony in court was "right". X's reply was interpreted as "The statement has been read to me. I'm not convinced with this" (the Impugned Answer). After the Judge made enquiries about a discussion between X and the interpreter, the question was repeated and X responded, "Whatever I'm saying right now, this is the correct version. And what I said earlier, I think both are the same" (the Second Answer). The Judge rejected D2's evidence as incredible; X's evidence as inconsistent with the facts he admitted and found the charge against D2 proved beyond reasonable doubt. D2 was granted leave to appeal against conviction on the basis that a significant exculpatory part of X's evidence at trial was not translated in that the Impugned Answer was incomplete. At the leave hearing, the court interpreter translated what X said as: "This evidence which is read to me it said this boy is with me. I have given my evidence before and in that I have said clearly that this boy was not with me, because in fact he was not there. I am not convinced with it and I don't agree with it". D2's translation of what was said by X was: "The one which has been read over to me just now. They are saying that the guy was with me. Previously the evidence I gave, I clearly told them that he was not … In reality, he was not there … I do not agree with this evidence, what has been read over to me, I do not agree with it, I do not accept it".
Held, dismissing D2's appeal, that:
- From the two additional translations that had been provided, X had apparently said: (a) his evidence was that D2 was not with him which was different from the summary of facts; and (b) he was not convinced with or did not agree with or did not accept the summary of facts. Whatever the difference between not being convinced by the summary of facts, or not agreeing or not accepting them, X was later asked the same question and there was no dispute that the Second Answer was correctly interpreted. It was clear to the Judge that X was testifying that his evidence in court, ie that D2 was not with him, was the correct version and therefore implicitly he did not agree with the summary of facts he had previously agreed. (See paras.53-56, 61-62.)
- There was no answer to the fact that X's evidence was materially different to the facts he admitted when he pleaded guilty. While certain parts of his evidence were not interpreted, he made clear that D2 was not with him when committing the offence and that this account was the correct one. That is how the Judge understood X's evidence and this was reflected in his reasons for verdict in light of the prosecution evidence. (See paras.66-69.)
- Accordingly, the mistranslation did not cause any unfairness that deprived D2 of a fair trial or rendered his conviction unsafe or unsatisfactory (HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133, HKSAR v Shahid  4 HKLRD 226, HKSAR v Chan Ka Chun (2018) 21 HKCFAR 284 applied). (See para.70.)
This was an appeal against conviction for attempted burglary based on allegedly misinterpreted testimony of the first defendant at the trial of the appellant (the second defendant) before Judge Dufton in the District Court. The facts are set out in the judgment.