YEUNG SHUN-LIK v. THE QUEEN

BETWEEN

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Coram: O'Connor, J.

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JUDGMENT

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1. The appellant appeared on three separate summonses for three offences of continuing an offensive trade without a licence contrary to Regulation 4 of the Offensive Trade (New Territories) Regulations. The offences all related to the same premises and trade, on occasions several months apart. The charges all came up for plea at the same time. The learned magistrate made his record of the proceedings on the front of the informations.

2. The learned magistrate made use of a chop which imprinted the following on the sheets :

After the word "Fine" the magistrate wrote in manuscript $"500". He also wrote that the defendant admitted he had no licence.

3. The Magistrates Ordinance by S. 19(1) provides that if a defendant admits the charge "... his admission shall be recorded as nearly as possible in the words used by him ...". Magistrates are obliged to comply with that direction. A plea of guilty should be recorded in direct speech in the words of the defendant. I am aware, from my early experience in Hong Kong, that interpreters often have, or had, a tendency to listen to the reply to a charge, and then say in English to the magistrate "He admits" or "He pleads guilty". Neither of these, as they are in indirect speech, is what the defendant has said, and the latter is open to the further criticism that rather than being an interpretation of what has been said, it appears to be construing what was said as being a plea of guilty. The interpreter's job is to interpret what is said, and the magistrate's job is to record it. It is for the magistrate, not the interpreter, to construe it as a plea of guilty, if that is what it is.

4. The word guilty has a technical meaning in haw. It means "I have committed the offence and am legally liable to the punishment provided by law, I have no defence". It is important that the interpretation is an accurate translation of what is said and that it is properly recorded.

5. In these cases the appellant appeals on the grounds that he pleaded not guilty, but that the magistrate had not properly recorded what he said. The learned magistrate in his findings says that the defendant had pleaded not guilty in respect of all the charges but that he, the magistrate understood that the offensive nature of the trade and the appellant's involvement were not in dispute. However the magistrate, with commendable frankness, admits he might have been mistaken as to that, and adds that as he did not record what the defendant said, he cannot be sure and therefore supports the appeal. The crown do not oppose the appeal. I set aside the convictions, fines and prohibition order. The fines, if. paid, are to be refunded.