Guang v State [2011] FJCA 13; AAU0013 (21 February 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS

CRIMINAL APPEAL NO. AAU0013 OF 2007
(High Court Criminal Action No.16 of 2004)

BETWEEN:

TANG LU GUANG
Appellant

AND:

THE STATE
Respondent

Date of Hearing: Thursday, 3rd February 2011

Counsel: Ms S Vaniqi for the Appellant
Ms P Madanavosa for the Respondent

Date of Ruling: Monday, 21st February 2011

RULING

1. On 3rd February 2011 I heard an application by Tang Lu Guan to appeal against his conviction for murder on his plea of "guilty" before Mr Justice Gates (as he then was) on 24th December 2004. On 14th January 2005 he was sentenced to life imprisonment. At paragraphs 13 and 14 of his sentence Mr Justice Gates explained:

"[13] Though this is a sorry business for both parties, the law obliges me to pass a term of life imprisonment which I now do pursuant to section 200 of the Penal Code.

[14] This is not a case which by reason of unusual gravity demands that I fix a minimum term for the prisoner to serve prior to release. The Accused is therefore sentenced simply to life imprisonment."

2. On 23 January 2007, almost two years out of time, Tang Lu Guan applied for leave to appeal out of time against sentence. After a hearing before the President of the Court of Appeal Mr Justice Gordon Ward, a written ruling was handed down on 23 February 2007. This refused leave to against the mandatory sentence of life imprisonment; however the ruling explained that not recommending or fixing a minimum sentence was an act of mercy because it left the executive to decide a release date, which was the most beneficial solution available to Tang Lu Guan in this case.

3. The next application received from Tang Lu Guan was a written request received on 26 March 2007. The material part reads:

"I humbly seek leave before the appeals court to further pursue intent for appeal on the basis that my appeal is discriminatory and biased due to the non-provision of disclosures prior to and after trial. The appellant requests your lordships trial and statements of witnesses to assist in the forthcoming redress.

... the appellant wishes to pursue an appeal against the state's case."

In passing I note that at plea and upon sentence, Tang Lu Guan was represented by Ms B Malimali who would have had all the disclosures.

4. This second notice is not only way out of time; it also assumes a right of second appeal. In the absence of a petition to the Supreme Court which would not have had any chance of success, this matter reached finality with President Gordon Ward's ruling of 23rd February 2007.

5. I note that the request received on 26th March 2007 is wholly vague. No matter how disadvantaged by language, a Mandarin speaking person sentenced on his own plea would have been able to feel and express at least in a limited way any genuine matters of grievance about Fiji trial process whether the points are meritorious or otherwise after two years. It has now emerged that Tang Lu Guan believes that the Court interpreter who assisted not only the Court, but also Ms Barbara Malimali his defence counsel back in December 2004 and January 2005 did not translate fully and properly.

6. But this grievance was not expressed on 23rd January 2007 or even on 24th March 2007.

7. The vagueness continues. The facts are that there are later letters of submission from Tang Lu Guan dated 7th July 2008 and 15th September 2008 but there is no concrete ill expressed complaint about failure of trial process in either of them.

8. The first time this Court has received anything in the way of specific complaint about process is with the submission of his legal aid counsel on 26th February 2010. That is over five years after the conviction and sentence.

9. In that submission the writer (I am not sure if it is his present legal aid Counsel Ms Vaniqi) states the following complaints:

"[5] The main ground of appeal against conviction is that the Judge erred in law when he failed to ensure that the Appellant was provided with the services of an interpreter who was properly translating the proceedings and legal advice on the Appellant.

[6] The appellant also alleges that the interpreter failed to translate the legal advice received from his counsel in regards to this case proceedings to trial, and the possibility of having the charge reduced from murder to manslaughter.

...

[32] The Appellant has valid grounds of appeal in regards to conviction, for this very same issue of breakdown in communication is what affected the Appellant while he was obtaining advice from his counsel.

[33] The Appellant contends that the Court interpreter did not properly communicate to him the consequence of a guilty plea on a murder charge. Had the Appellant been aware that he was facing a mandatory life term, it is submitted he would have taken his in chances at trial and argued for the charge to be reduced to manslaughter arguing provocation.

[34] It is submitted he could not do this because of the poor interpretation use, and this is a meritous grounds of appeal. For his right to a fair trial was breached as a result of this."

10. I have read the numerous cases submitted by Ms Vaniqi. This is not a case where understanding the course of a trial is an issue. Therefore what happened in the investigative phase is more important. If there are no credible complaints about the taking of the statement under caution or concerning the written agreed facts on which Gates J convicted and sentenced, there cannot be any credible complaint about the court process, limited as it was to a guilty plea and sentencing.

11. There are no complaints about the Statement under Caution. It is a most thorough document. The interview commenced at 9.00 p.m. on 27th June 2004 and ended its first phase at 1.00 a.m. on 28th June 2004. It recommenced at 9.50 a.m. on 28th June 2004 and finished at 1.48 p.m. on that day. There were 138 questions and answers many of them answered in detail. The typescript on A4 sheets single spacing runs to 10 pages.

12. The Suva police have the services of a Chinese officer. He is Police Support Officer 2176 Yi Xing Fong. PSO 2176 has as his first language Mandarin. At the outset of the interview Tang Lu Guang was asked if he had any objections in respect of Fong as an interpreter and whether he agreed that Fong should act as interpreter. He answered "Yes" and signed at this point on the document to indicate that he had approved Fong as interpreter. At the end of the interview Fong read back all the questions and answers in Chinese. Tang Lu Guan was given every opportunity to add to, alter, or correct anything he had said. He did not wish to amend anything.

13. I am satisfied that Fong throughout used the best of his knowledge and ability as a translator. The detail in the statement in my opinion demonstrates his ability as a translator of the Mandarin language and his dedication to the task. Fong made the following statement about his translation duties in this case on 14th July 2004. It says:

"I have been residing at the above mentioned address since last 13 years ago and I have joined the Fiji Police Special Constabulary in December, 2001.

On 27.6.2004, I was called at Central Police Station to help in the Police Investigations into a case of Murder where a Chinese lady was found dead at 59 Rewa Street, Flagstaff suspected to have been murdered. Upon arrival at Central Police I met the Investigating Officer Sgt.932 Mohammed Safiq who briefed me about the case and I interviewed and conversed with the Chinese people and related the result to the Investigating Officer Sgt. 932 Mohammed Safiq.

On 27.6.2004 at about 2100 hours at Crime Office, Central Police Station, I was present, witnessed and translated the caution interview of TANG LU GUANG who was interviewed for offence of Murder by Sgt. 932 Mohammed Safiq in the English language which I translated it in the Chinese Language to TANG LU GUANG with the best of my knowledge and ability and TANG LU GUANG was co-operative and gave the answers which I translated in English Language and gave to the Interviewing Officer. He gave the answers voluntarily. The caution interview was suspended on 28.6.2004 at about 0100 Hrs and then, he was locked in the cell.

On 28.6.2004 at about 0950 Hrs at Crime Office Central Police Station, the caution interview of TANG LU GUANG commended and I, again, acted as the Translator and was present all throughout the caution interview. Upon completion of the caution interview, the contents of the caution interview was read back to TANG LU GUANG and he approved the contents and signed all the pages of the caution interview record.

Before or during the caution interview of TANG LU GUANG, no promise, threat or harm of any kind was made to him and he was co-operative all throughout. He was properly advised of his rights.

I translated the caution interview from English language to Chinese language and vice versa with the best of my knowledge and ability."

14. There are some differences between the statement of agreed facts dated 13th January 2005 and the statement under caution. The principal difference relates to an allegation that he and Ms Wang Guijang, the deceased, had a heated argument when he arrived at her flat and place where she entertained male clients on 23rd June 2004. The statement under caution only mentions a heated argument on 24th June 2004 after lunch. Since she was engaged with a client on 23rd June 2004 when he called without warning after some days absence it is doubtful that Ms Wang would take up time in an extended rebuke. But both documents state clearly that the arguments concerned Ms Wang's view that as a friend, occasional lover and recipient of a place to stay Tang Lu Guang was inconsiderate, ungrateful and inconsistent in his attentions. Whether there were one or two arguments in the period 23rd and 24th June 2004 there was no argument about Ms Wang's work in providing sex for paying clients because it was the accepted background to their relationship. Although it may be that in paragraph [3] of his reasons Mr Justice Gates seems to accept that the argument on 23rd June 2004 was about having sex with another man, there is not a word in either document to support that view.

15. I accept that both those documents would be the focus of communication between Ms Barbara Malimali, his counsel, and, Mr Wu, the court interpreter and Tang Lu Guan the accused. It is quite impossible to credit the allegation that Mr Wu, was incompetent and misleading and that Ms Malimali, a barrister of some seniority did not establish the detail and provide full, correct and effective legal advice through the medium of Mr Wu's competent translation.

16. Tang Lu Guan had admitted a dreadful crime in that he admitted that an argument on 24th June 2004 in the afternoon had escalated to some pushing and then he could not control his temper and he rendered her unconscious through manual strangulation. Then he panicked and killed her deliberately by strangulation with a cloth around her neck. I have no doubt that he admitted his crime in detail because of guilt and remorse. No doubt he established from the police and later from Ms Malimali that in Fiji the death penalty had been replaced with life imprisonment and that the best outcome would be that no recommendation or fixing would be done by the sentencing court, leaving him to be released in due course by executive decision. In context he was probably relieved that this had happened in Fiji rather than in China.

17. There was nothing in either the statement under caution or the statement of facts to support provocation with a possible verdict of manslaughter after trial.

18. Perhaps as time passed he rejected his acceptance of the detail of what happened and replaced it in his mind with a version in which he was not guilty as charged. It is idle to speculate. I am satisfied that however his claim that he was somehow unjustly dealt with arose, there is no truth at all in it, although he may genuinely believe facts that convince him that he has a grievance.

19. I am grateful to Ms S Vaniqi for her argument and citation from all the relevant cases, ancient and modern upon translation. She has done her best to put forward a case; importantly when it comes to fact it is bare assertion which has no credibility.

20. Does an appellant in a criminal matter who has had his appeal on sentence dismissed have the right to then advance at a later time an appeal against conviction? I need only answer the question in the present context. I am satisfied that finality for further appeals whether against sentence or conviction arose after the ruling of President Gordon Ward on 23rd February 2007. The present appeal is an abuse of process. It is also out of time. This is not a case where it would have been proper to extend time. It should be dismissed because it is an abuse of process and because it is out of time. I have spent time on the substantive issues nonetheless, so that I can be sure that somehow or another there was no miscarriage of justice in the period 25th June 2004 to 14th January 2005 with regard to Tang Lu Guan.

ORDERS

21. My orders are:

1. That the application to extend time for applying for leave to appeal be dismissed.
   
2. That this application be dismissed as an abuse of process.
   
3. That this application, in the alternative, be dismissed being out of time.
   

William R. Marshall
Resident Justice of Appeal