R v Choi (Pong Su) (No 15)

[2005] VSC 40

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1424 of 2004

THE QUEEN

v

YAU KIM LAM
CHIN KWANG LEE
TA SONG WONG
DONG SONG CHOI
MAN SUN SONG
MAN JIN RI
JU CHON RI

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JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	2 March 2005
CASE MAY BE CITED AS:	In the Matter of the Pong Su (Ruling No. 15)
MEDIUM NEUTRAL CITATION:	[2005] VSC 40

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CRIMINAL LAW – Evidence - Hearsay – Whether statement made by interpreter admissible in circumstances where interpreter not called – Whether res gestae applies – Whether admissible as part of an accumulation of circumstantial evidence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Champion S.C. with Mr M.P. Cahill	The Solicitor for the Commonwealth Office of Public Prosecutions
For Yau Kim Lam	Mr G. Meredith	Tony Danos
For Chin Kwang Lee	Mr A. Shwartz	Halikopoulos Lawyers
For Ta Song Wong	Mr T. Lewis	Lethbridges
For Dong Song Choi	Mr J. O’Sullivan	Galbally & O’Bryan
For Man Sun Song	Mr P. Faris, Q.C. with Mr I. Hayden	Ellinghaus & Lindner
For Man Jin Ri	Mr N. Papas	Slades & Parsons
For Ju Chon Ri	Mr S. Russell	Leanne Warren & Associates

HIS HONOUR:

1           Mr Hayden of Counsel for the Master of the Pong Su, Man Sun Song, submits that evidence which the prosecution seeks to lead, that a mobile telephone service was provided to the Master prior to the voyage of the Pong Su to Australian waters is inadmissible. 

2           The relevance of the evidence is that there is evidence that the mobile telephone service in question was used in locations consistent with the movements of the Pong Su in the Australian area between 8 April and 16 April 2003.  The number of the service was found in the directory of a mobile phone found in the possession of the accused Wong after the alleged landing of heroin from the Pong Su into Australia.  Furthermore, there is evidence that the service communicated with two telephone services, the SIM cards of which were later also found in the possession of Wong.  Thus, the prosecution contends that the evidence establishes a link between the Master and the activities of Wong who it is alleged travelled to Australia on the Pong Su and who imported a commercial quantity of heroin into Australia on 16 April 2003.  

The Evidence

3           Wah Bui Kwok is a Director of the Yue On Company Limited (“Yue On”), a shipping business based in Hong Kong, which operates as a shipping agent mainly for shipping lines operating between Hong Kong and North Korea. 

4           In June 2004 he made a statement to Hong Kong police in which he stated that Yue On is a shipping agent for the Pong Su Shipping Managing Company Limited (Pong Su Shipping).  Pong Su Shipping has a number of ships for which Yue On has provided agency services.  One of those ships is the Pong Su.  Among services provided to Pong Su Shipping by Yue On is the provision of telephone services as required by the shipping company.

5           In his statement, Kwok said that on 26 September 2002 he provided the captain of the Pong Su with telephone card number 898520406005806757 (“the SIM card”) for mobile phone number 852-62771301.  Kwok stated that he could not remember the captain’s name.

6           Kwok gave evidence before me on a “Basha enquiry”.  In the course of giving his evidence Kwok corrected his written statement by saying that he did not give the telephone card directly to the captain but that he gave it to him through an interpreter, as the captain did not speak or understand English. 

7           Although at first Kwok said that he could not remember whether he gave the card to the interpreter and the captain on the ship, or at his company office, he later gave evidence that he handed the telephone and its card over to the interpreter and the captain in the reception room of the ship.  However, subsequent to giving that evidence he agreed with Mr Hayden of Counsel that he could not remember if the transaction occurred at the ship or in his office.  When asked how he knew the man the SIM card was given to was the captain, Kwok said, “When I embarked the ship I contacted the captain of the ship through the interpreter.”

8           Kwok said that he did not know the captain of the Pong Su, as the ship seldom came to Hong Kong, but that he was told by the interpreter that the man to whom he gave the card was the captain.  The transaction took approximately five minutes after which Kwok left the ship.  He gave evidence that he had no record of who the interpreter was.  He believed the interpreter to be a member of the ship’s crew. 

9           Kwok said that he was unable to recall how the captain was dressed at the time nor was he able to describe him.  His only recollection was that the captain “might have been in his fifties”, a little plump, with dark hair and no memorable facial characteristics.

10          Mr Hayden submits that the evidence that Kwok gave the telephone to “the captain” is based upon what the interpreter told Kwok, and is thus hearsay. 

Submission of the Prosecution

11          Mr Champion of Senior Counsel outlined three reasons why he submits the evidence of Kwok is admissible.

12          First, it is  submitted that the statement is not hearsay.  It is the evidence of Kwok that the conversation occurred, at which point the telephone was handed over to the person who was identified as the captain.  The three people involved were the person said to be the captain, the interpreter and Kwok.  No other people were said to be present.

13          It is Kwok’s evidence that the conversation was held in English.  It is submitted by Mr Champion that there is no evidence that the man identified as the captain spoke no English or was otherwise unable to understand the conversation.  It is submitted by Mr Champion that in the normal course of events a man who was the captain of a ship, who had traded internationally, communicated on behalf of the ship around Asia and other places, would have sufficient understanding of English to understand the term ‘master’ or ‘captain’.  In addition, it is submitted that identification documents later found on the Pong Su pertaining to Man Sun Song, including his passport, are written in English as well as in Korean.

14          Mr Champion referred to the decision in Gaio v The Queen[1], a case concerning a conversation between a police officer and a suspect who was a Papuan native conducted through an interpreter.  It was held that the conversation was not hearsay simply because an interpreter was used in the conversation.  In that matter Fullagar J noted that[2]:

“It is true that there is a good deal of American authority to which we were referred by counsel, for saying that, where A and B, having no common language, converse by means of an interpreter, they must be taken prima facie to have accepted the interpreter as their agreed channel of communication, and that the conversation, if relevant to an issue, can be proved in court by either A or B as a direct conversation between them and without calling the interpreter at all.”

[1](1960) 104 CLR 419.

[2]At 427.

15          It should be observed, as Mr Champion makes clear, that in Gaio the interpreter was called to give evidence and in the course of doing so confirmed that he had accurately interpreted the conversation between the accused and the police officers. 

16          It is submitted by Mr Champion that the conversation between Kwok and the interpreter and “the captain” was a simple, uncontroversial transaction and therefore the inference could be drawn that by using an interpreter both parties to the conversation, Kwok and the third person, consented to the conversation that occurred.

17          The second reason for the evidence being admissible, it is submitted by Mr Champion, is through a means of identification by combined circumstances.  It is submitted that the evidence reveals that according to his identity document Man Sun Song was the master of the Pong Su on 25 January 2000.  There is evidence that he was the master of the Pong Su on 9 September 2003 when the ship was in Indonesia.  The evidence of Kwok is that the interpreter identified the third person to whom Kwok gave the telephone as the captain.  It is submitted that it is possible to use the combination of circumstances to provide a circumstantial case “proving identity”, in which circumstances the utterance of the interpreter is not hearsay, but a circumstantial fact from which, together with other circumstances, an inference of identity can be drawn.

18          Thirdly, it is submitted that if the statement of the interpreter that the third person was the captain is held to be hearsay in nature, the statement would be admissible as part of the res gestae of the transaction, and, thereby, an exception to the hearsay rule.  The purpose of the transaction was to deliver the phone.  It can be inferred properly by a jury that the delivery of the phone had to be to a person of authority, otherwise it could simply have been handed to anybody.  It is submitted that the statement of the interpreter in the contemporaneous event of the conversation is therefore admissible.

The submission of the accused man Song

19          In response to the prosecution submission that the third person to the conversation between Kwok and the interpreter was likely to understand sufficient English to recognise the word ‘captain’ or ‘master’, it is submitted by Mr Hayden that there is the following prima facie evidence that the third person spoke no English:

a.The third person did not take part in the conversation that was in English but spoken in a language foreign to that used between the interpreter and the third party;

b.The need for an interpreter for such a simple transaction; and

c.prima facie evidence that the third person was from North Korea.

20          It is further submitted by Mr Hayden that the contention that Song’s passport and identification papers can be used to support admissibility involves reasoning that is fundamentally flawed, as the reasoning  proceeds on the basis that the third person is Song, which is the very thing that the prosecution is seeking to prove by hearsay evidence.  Mr Hayden argues that the argument advanced by the prosecution is as follows: Song’s passport and I.D. documents are in English as well as in Korean.  Therefore Song would understand English.  The third person is Song, therefore he understood what was said when he was identified as the Captain.

21          Insofar as the prosecution relies on the obiter dicta of Fullagar J in  Gaio to contend that the evidence is an exception to the hearsay rule, it is submitted by Mr Hayden that the circumstances as contemplated by Fullagar J were not intended to include the issue of identity.  It is submitted that the assertion “this man is the Captain” being an assertion of identity by a third unknown person is quite different from a situation involving “pure translation” of a conversation.

22          In relation to the contention of the prosecution that the statement of the interpreter can be used in the combined circumstances to establish identity, Mr Hayden submits that it is apparent that the prosecution concedes that the only purpose for the admission of the evidence is to establish the truth of the assertion that “this man is the Captain.”  Accordingly, Mr Hayden submits that the exclusionary rule of hearsay applies.  Mr Hayden further submits that there is no evidentiary basis for suggesting that Song was the only captain of the Pong Su.  He notes that the prosecution materials disclose periods in the December to February period of 2003 when Song was not the captain.  There is no other independent evidence to establish that Song was the captain of the Pong Su on 26 September 2002. 

23          In response to the prosecution’s contention that the identification is admissible as part of the res gestae Mr Hayden submits that the circumstances of the conversation between Kwok and the interpreter and the third person are not such as to permit the application of the res gestae rule. 

24          Mr Hayden submits that it is apparent that the prosecution seeks to establish the truth of the statement by the interpreter, and that the fact that it was made, is of no relevance to any issue in the trial, outside of proof of the truth of the fact that Kwok provided the telephone service to the captain.  Mr Hayden referred particularly to the decision of Subramaniam v DPP[3] and to the statement of the Privy Council[4] that:

““Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay.  It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.  It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”

[3](1956) 1 W.L.R. 965.

[4]At p.970.

25          Furthermore, Mr Hayden submits that for the res gestae rule to apply, the requirements of contemporaneity and spontaneity must be such that the maker of the statement has no time to reflect and concoct a lie.  

26          On this basis, Mr Hayden submits that the circumstances of the discussion had with Kwok do not fit into the res gestae exception to the hearsay rule, as the requirement of spontaneity is lacking and the possibility of concoction exists.  He submits that it is possible that a concoction could exist in that the interpreter may have said that the person with him was “the captain” so as to enable the telephone to be handed over.  He relies upon the fact that it is unclear whether the handing over of the phone took place in the Yue On offices, or on the ship.  The evidence does not disclose whether the meeting was pre-arranged or was by appointment or a spontaneous meeting of the parties, and furthermore Kwok admitted in evidence that he had no notes of the meeting.  It is submitted that the lack of any evidence of spontaneity is such that the res gestae rule ought not to apply.

Conclusion

27          In my view, there can be no reason for the admission of the statement by the interpreter that the man to whom Kwok handed the phone was the captain, other than to assert the truth of the statement and thus to establish that Kwok provided the phone service directly to the accused person Song. 

28          The relevant evidence in relation to this issue may be summarised as follows:

·     On 26 September 2002 Yue On entered into a sales agreement with Hutchinson Telecom to provide a mobile phone service 852-62771301 with a SIM card number 898520406005806757 to it.

·     The arrangement between Yue On and Pong Su Shipping was that Yue On would pay the monthly telephone accounts and then charge Pong Su Shipping for telephone fees incurred on its behalf.

·      A telephone and the SIM card were handed by Kwok to a person he spoke to in English in the presence of a third person.  The person spoken to by Kwok acted as an interpreter to the third person.  Kwok, who speaks and reads Cantonese did not recognise the language the interpreter and the third person spoke.

·     The interpreter told Kwok the third person was the Captain.  Kwok had no other way of knowing whether or not the third person was the captain of the Pong Su other than what he was told by the interpreter. 

·     Kwok is unable to say whether the conversation took place at his company office or upon the ship.

·     Kwok provided no evidence as to the details of the telephone services which were ordered, such as who requested it, or what his instructions were, nor was any evidence given by him as to any detail of the conversation apart from the fact that the interpreter told him that the third person was the captain, and that he told the interpreter that “the captain” could read the manual which came with the telephone. 

29          In my view the evidence of Kwok that the interpreter told him that the third person to the conversation was “the captain” is hearsay.  Whilst it is clear as Fullagar J said in Gaio[5] that:  “There may be cases in which it is proper to infer that the parties have agreed to accept the translations of the interpreter as prima facie correct, and it may be that in such cases it is sufficient for either of them to give evidence of the conversation without calling the interpreter”, I do not consider that this is such a case.  There is no basis to infer that the circumstances are such that the parties to the conversation agreed to accept the translation of the interpreter as prima face correct. 

[5]At p.428.

30          Furthermore, in Gaio Fullagar J said[6]:

“Subject to one condition, therefore, there is no reason why A should not give evidence of the conversation as a conversation conducted wholly in his own language, or why B should not give evidence of it as a conversation conducted wholly in his own language.  The one condition is that the accuracy of the means of communication employed should be verified.  And prima facie sufficient verification is supplied if C gives evidence that he translated corrected from A’s language into B’s and from B’s language into A’s.”

[6]At p.429.

31          In the case before me there is no means to verify the accuracy of the means of communication.  The interpreter is not to be called to give evidence, it being unknown who he is.  Furthermore, there is no evidence that the third person to the conversation spoke English, or in any way took part in the conversation.  Indeed, there is no evidence that the third person said that he was the Master of the ship.  Rather, the only evidence is that the interpreter said that he was the Master of the ship.  The prosecution submission that Song must have known some English because his passport and other identification documents were in English and revealed him to be the Master, does as Mr Hayden points out, rely upon the assumption that Song was the third party to the conversation.  Of course the very purpose behind the prosecution submission that the evidence is admissible is to demonstrate that the telephone was given by Kwok to Song.  In R v Wong Ah Wong[7] the New South Wales Court of Appeal dealt with the issue of whether evidence that an immigration officer had conversed with Chinese men through an interpreter was admissible.  The Court said:

“It was submitted that Mr Wallace’s evidence amounted to no more than a statement of what the interpreter had said in reply and was therefore merely hearsay evidence of the necessary facts and was inadmissible.  With this submission I agree.”

[7](1957) SR (NSW) 582.

32          I do not accept the submission of the prosecution that the conversation is “simply a circumstantial fact from which an inference of identity can be drawn, in combination of other facts” and thus used for that purpose is “not hearsay”. 

33          It is of course true that the identity of a person can be established by circumstantial evidence.[8]  The prosecution relies upon a number of facts to contend that the person to whom Kwok gave the telephone was the accused man Song.  [See paragraph 17 above].  However, the “small circumstantial case that proves identity” as submitted by Mr Champion to be the case here, necessarily relies upon the hearsay of the interpreter that the third person to the conversation was the Master of the Pong Su, from which hearsay the prosecution seeks to prove that the accused man Song received the mobile telephone and SIM card in question from Kwok.  Thus the prosecution seek to rely upon the truth of the statement.  In my view, the argument that the statement made by the unknown interpreter is admissible as a “circumstantial fact” that is not hearsay, is indeed a “bootstraps” argument as submitted by Mr Hayden. 

[8]See R v Harvey [2001] VSCA 19.

34          Mr Hayden referred to Ratten v The Queen[9] as authority for the proposition that for a statement to be admitted into evidence as forming part of the res gestae the statement must be both contemporaneous with the facts to which it is associated and spontaneous.  In Ratten, Lord Wilberforce, who delivered the reasons of their Lordships, after reviewing a number of authorities said:[10]

“These authorities show there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or to the disadvantage of the accused.”

[9][1972] AC 389.

[10]At p.391.

35          As to the submission that the hearsay of the interpreter is admissible as part of the res gestae, the requirements of res gestae as established by Ratten are contemporaneity and spontaneity.  In my view, the evidence given by Kwok is so vague and imprecise that it is difficult to say that there was the necessary spontaneity.  Kwok is unable to say where the conversation took place.  He is unable to say in any detail what conversation took place.  He is unable to state the context of the conversation in which he says the interpreter stated that the third person was the captain.  The highest point his evidence reaches is that on the date on which Yue On entered into a sales agreement with Hutchinson Telecom he, at a time which he is apparently unable to state, in a place of which he is uncertain, by reason of arrangements which are entirely imprecise, in circumstances which are vague, met two persons whom he cannot identify.  One of those persons stated to him in English that the other person was “the captain”, with which he handed over a telephone with the advice to read the instruction manual.  Although the statement that the person was the captain was apparently contemporaneous with the act of handing over the telephone, the evidence of spontaneity of the statement is incapable of being judged.  Accordingly, it does not form part of the res gestae.  Furthermore, it is apparent that the only reason for the admission of the statement is to prove the truth of the assertion.  Therefore the statement is hearsay, and not being part of the res gestae, is therefore inadmissible.

36          It is appropriate to note the remarks of Deane J in The Queen v Benz and Anor[11]:

“Ultimately, whether statements are admissible as part of the res gestae is something which must be determined by reference to the particular facts of the particular case including the precise role played in the commission of the offence by the persons by and to whom the statement was made and the relationship between the statement and the acts constituting the offence.  Even when they are part of the res gestae, statements which are not proved to have been made by or with the acquiescence of the particular accused may be so unfairly prejudicial and of such small legitimate probative value that they should, notwithstanding that they are strictly admissible, be excluded as a matter of discretion.”[12]

[11][1989] 168 CLR 110.

[12]At 121.

37          In the circumstances of the evidence of Kwok being so vague and uncertain as to time and place and the nature of the conversation between the parties being of such limited detail, if the words did form part of the res gestae, my conclusion would nevertheless be that they should be excluded as evidence against Song.

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