Yip v Police HC Rotorua CRI-2011-463-000058

[2011] NZHC 1950

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-463-000058

KAM HO KEVIN YIP

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 December 2011

Counsel:         N Cramer for Appellant

L Owen for Respondent

Judgment:      1 December 2011

JUDGMENT OF ASHER J

Solicitors/Counsel:

Cramer Law, PO Box 7087, Te Ngai, Rotorua. Email:  [email protected]

Crown Solicitor, PO Box 740, Rotorua 3040. Email:  [email protected]

YIP V NZ POLICE HC ROT CRI-2011-463-000058 1 December 2011

[1]      The appellant Kam Ho Kevin Yip appeals against his conviction and sentence on one charge of failing to comply with a lawful requirement to stop his vehicle imposed on him by a member of the Police.  The charge was laid under s 52(1)(c) of the Land Transport Act 1998.  The maximum penalty is a fine not exceeding $10,000 and in certain circumstances disqualification.  It is not in dispute that disqualification was a risk.

[2]      Following conviction on 4 July 2011 two Justices of the Peace fined Mr Yip

$2,000 and ordered him to pay Court costs of $132.89.   The Police had sought disqualification but no order was made.   The appellant filed a notice of appeal against conviction and sentence.

[3]      In essence there are two complaints.   First, that there was a substantial miscarriage  of  justice  at  the  hearing  because  of  the  incompetence  of  Mr Yip’s Cantonese interpreter.  Second, that the $2,000 fine was manifestly excessive.

The facts

[4]      The Police summary of facts stated that Mr Yip was seen driving his black BMW motor vehicle with a passenger on State Highway 1 near Taupo.  His speed was clocked by Constable Foden in a marked police vehicle at 130 kilometres per hour.  Constable Foden asserted that the car braked heavily and that the radar locked at 120 kilometres per hour, 20 kilometres per hour in excess of the posted speed limit.

[5]      The red and blue flashing lights of the police vehicle were activated and Constable Foden waved and flashed her lights at Mr Yip.  The constable asserted in her evidence that Mr Yip turned his head to face her as she was waving her arms. Constable Foden then did a U-turn and commenced following the BMW.   By the time the U-turn was completed there was a white vehicle between the police vehicle and the BMW.   The constable activated the siren and overtook the white vehicle.

Constable Foden’s evidence indicated that there was a period during which she lost sight of the BMW.

[6]      However,  Constable  Foden  backtracked  as  she  knew  the  area  well  and assumed the vehicle had been driven down a nearby farm road.  The constable went down that road to a farmhouse that she knew, got out of the police vehicle and noticed a black vehicle nearby and two people walking towards a shed some distance from it.  It was the same BMW that she had observed earlier.  The constable then approached the two persons and had an exchange with them.

[7]      Constable Foden’s evidence was that on approaching Mr Yip there was the following exchange:

A.        I did say to him, “I thought you were going to stop”, and he replied, “Yes, yes I was, I thought there was a problem”, and he said, he said many things  to  me  at  the time.    He  said, “I know  there  was a problem, but I thought I could get away from you like in Auckland”.

Q        And did he expand on how he got away from Police in Auckland? A        He said, “It’s happened before, they can’t catch me or find me.”

Q        What did he then ask for, the defendant then ask for? A     His lawyer.

[8]      At trial both Mr Yip and his passenger and partner April Shee gave evidence. They denied that the exchange with Constable Foden just set out took place.  The import of their evidence was that speeding was denied.   They observed that the police vehicle put its lights on as they went past, but they had no reason to think that they were being followed.  They assumed that the police vehicle was going to go in the opposite direction.  They went down a drive because Ms Shee wanted to go to the toilet.  They denied any attempt to deliberately fail or refuse to comply with the implicit direction and the flashing lights to stop.  Their answer was that they did not see the lights once they had passed the vehicle and did not realise that they were being directed to pull up.

[9]      Section 24(g) of the New Zealand Bill of Rights Act 1990 provides:

24   Rights of persons charged

Everyone who is charged with an offence—

…

(g)   Shall have the right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court.

[10]     It is common ground that s 24(g) applied in that Mr Yip and Ms Shee, without an interpreter, could not fully understand or speak the language used in Court. They speak Cantonese.

[11]     A Cantonese interpreter was provided.   Ms Cramer in her submissions for Mr Yip argued that it was clear from an examination of the transcript the interpreter was not competent and not providing an accurate translation.   She submitted that there were misunderstandings and misinterpretations through the entire defence evidence.  She relied on the case of Abdula v R1 for the proposition that deficiencies in interpretation can make a trial unfair.  She submitted that in the circumstances a substantial miscarriage of justice had occurred.

[12]     The   Supreme   Court   acknowledged   in   Abdula   that   deficiencies   in interpretation at a criminal trial may give rise to a breach of the rights of a person charged at common law and under the Bill of Rights Act.2   The standard that must be

attained for interpretation to be adequate in New Zealand:3

… must reflect the accused person’s entitlement to full contemporaneous knowledge of what is happening at the trial.   Interpretation will not be compliant if, as a result of its poor quality, an accused is unable sufficiently to  understand  the  trial  process  or  any  part  of  the  trial  that  affects  the accused’s interests, to the extent that there was a real risk of an impediment to the conduct of the defence.

1      Abdula v R [2011] NZSC 130.

2 At [42].

3 At [43].

[13]     A properly established failure to meet this standard will necessarily make the trial unfair.  The Supreme Court observed in Abdula that in such circumstances it is axiomatic that a substantial miscarriage of justice will have occurred.4

The quality of interpretation

[14]     Ms Cramer focussed on specific examples of poor quality interpretation.  It is necessary to consider these.  She quoted the following exchange in the evidence-in- chief of Mr Yip:

Q     You are currently employed?

A     Ah no, I finished University and then I start a supermarket in Parnell with my partner.

[15]     The correct and consistent answer would have probably begun: “Ah yes …”. However, it is by no means clear that the apparent contradiction within the answer when read with the question is a result of poor quality interpretation or some other cause.  Given the very leading nature of the question Mr Yip’s natural instinct may have been to disagree but then to state his answer in full to avoid any misunderstanding.  Or it is possible that he had indeed ceased to be employed at the supermarket he had referred to and the answer was entirely correct.

[16]     Then Ms Cramer referred to this extract from Ms Shee’s cross-examination:

Q     And you’ve discussed this case with Kevin haven’t you?

A     Pardon.

Q     You’ve discussed this case with Kevin? A     Yes

Q     And you don’t want to see him get a conviction either, do you? A      Yes of course.

[17]     I do not discern in this exchange any sign of poor quality interpretation.  The problem again may be the very leading nature of the last question.  The question the

way it is phrased invites either a positive or negative answer when the witness can

4 At [43].

mean the same thing.  The answer thus is “yes I agree with you I don’t want him to get a conviction”, or “no I don’t want him to get a conviction”.  There is no sign of any error in the interpretation of the answer.

[18]     The final extract quoted following from the evidence of Ms Shee:

Q     And after you saw the police car, what did you do then?

A    We, um, there is a big curve, um, I was, I’ve been looking for a place to go to the toilet for a long and then after, just after the curve we found, I saw a small sideway and I ask Kevin to turn into that road so I can have a chance to check my pet.

[19]     The only curiosity in this answer is the last phrase where there is a reference to “check my pet”.  There are three possibilities.  It may be a interpretation error. Secondly, it is possible there was a pet in the car.  Or it may be a transcription error.

[20]     The  difficulty  with  this  and  other  more  general  criticisms  made  by Ms Carmer of the interpretation, is that there is no affidavit evidence calling into question its quality.  Unlike Abdula no deponent has filed an affidavit.  No expert in Cantonese has asserted that there are flaws.  There was no comment or objection at the time of the trial from counsel for the defence or the Judge.  Mr Yip clearly speaks some English and he never made any protest.

[21]     An examination of the transcript as a whole indicates that Mr Yip was an alert, intelligent witness who stuck firmly to his story.  The essential points of his defence evidence and that of Ms Shee were absolutely clear.   He denied what the constable said about the statement that he had made when he was first approached. He denied seeing the police vehicle following him with its lights on.   He denied trying to avoid lawful pursuit.

[22]     Thus, I must conclude that the case for there being a failure to meet the required standard has not been made out.  There is no evidence of the interpretation being of poor quality.  To the contrary.  From the best assessment that is possible in the absence of expert evidence, the interpreter appears to have done a perfectly adequate job.  There is nothing to indicate that Mr Yip’s right to a fair trial and to fully and properly present his defence was in any way inhibited by the quality of

interpretation.   His defence was clearly presented, and his evidence clear and consistent and easy to follow.

[23]     The trial in the end came down to a credibility issue.  Had Constable Foden satisfied the Justices of the Peace beyond reasonable doubt that her account of the refusal to stop and Mr Yip’s comment was true and correct, or was there rather a reasonable doubt that Mr Yip’s alternative versions of events was true?  The Justices of the Peace found beyond reasonable doubt that Mr Yip had attempted to secrete himself in the car on the farm property to hide from the Police.   They believed Constable Foden and disbelieved Mr Yip.  That was a decision that was entirely open to them on the evidence and there is no indication of any injustice in the process of trial.

[24]     The conviction appeal, accordingly, cannot succeed.

The sentence appeal

[25]   No grounds for the sentence appeal were particularised in the written submissions and I have not been referred to any cases which indicate that the fine of

$2,000 was manifestly excessive.

[26]     The maximum fine that could have been ordered was $10,000.  Given that the Justices of the Peace accepted the Police evidence, Mr Yip’s actions appear to have constituted a flagrant and prolonged  attempt to avoid compliance with a lawful direction from the Police in breach of the section.  Disqualification was a possibility and this was traversed at the hearing.  In the end the Justices of the Peace did not impose disqualification and imposed a fine of 20 per cent of the maximum.  There is nothing to indicate that this was manifestly excessive.  Indeed, given the flagrant and prolonged nature of Mr Yip’s actions it was well within the range.

[27]     The sentence appeal must also therefore fail.

Result

[28]     The appeal against conviction and sentence is dismissed.

……………………………..

Asher J