R v Gao Jian [2018] TOSC 83; CR 82 of 2017 (27 June 2018)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 82 of 2017

BETWEEN: R E X - Prosecution

AND: GAO JIAN - Accused

BEFORE THE HON. JUSTICE CATO

J U D G M E N T

1. 1. This trial commenced today for two offences under the Fisheries and Management Act and regulations for;
   
   1. Having possession of undersized Beche – de- Mer contrary to section 102 of the Act and regulation 26(3) of the Fisheries Management (Conservation) Regulations 2008;
      
   2. Having possession of sea cucumber during the closed season contrary to section 102 of the Fisheries Management Act and regulation 26(4) of the Fisheries Management (Conservation) Regulations 2008;
      
2. The Crown opened its case and indicated that the record of interview was likely to be objected to by Mr Clive Edwards. Mr Edwards indicated that it would be. I ascertained that there were to be, besides an allegation of inducement, arguments about the content of the admissions and the accused’s understanding of certain passages in the record of interview which were disputed.
   
3. The record of interview was to be in Tongan. It was accepted the accused did not speak Tongan but a Chinese dialect. It was common ground that an interpreter had been used during the interview but he interpreter was unavailable. The prosecution advised that it was not able to call the interpreter. In my view, it was inevitable that any communication between the police officer, the interpreter and the accused would require the interpreter to be called to give evidence. This point was made in R v Attard 1959 (43) Crim App Rep 90 where the prosecution proposed to call evidence by a police officer of an interview which he had conducted with the prisoner through an interpreter. The defence had submitted that since neither the police officer nor the prisoner could understand what the interpreter said to the other, the evidence of the police officer was inadmissible as hearsay, and that only the interpreter could give evidence of the questions which he put to the prisoner on behalf of the police officer and of the answers given to him by the prisoner in the prisoner’s own language. I consider that this case is indistinguishable and the record of interview in Tongan must be ruled inadmissible.
   
4. That left a second point. When the Crown opened, the prosecutor in her opening (recorded also in writing) said;
   

“Tu’utafaiva read out the search warrant to the Accused but he did not understand so Police obtained De Feng Mo a Chinese interpreter to translate the warrant to the Accused. “

5. Police then entered the premises and found allegedly certain incriminating evidence Beche de Mer and cucumbers.
   
6. Mr Edwards objected also to this evidence on the grounds that, in the absence of De Feng Mo, giving evidence about his translation the evidence of the search should not be admitted. I allowed the Crown an adjournment to ascertain whether De Feng Mo could be summonsed to give evidence as to what he had told the accused prior to Police effecting entry. The prosecutor indicated that she was unable to call De Feng Mo.
   
7. There is no provision in the Police Act, 2010 that expressly lays down what a police officer must do to inform the owner or occupant of a residence or premises of the fact of a warrant before entering to execute a search but it is generally recognized that police must make known to the person that they have a warrant to search premises and the scope of that warrant which requires the occupant to either read of have the relevant parts of the warrant read to him. This defines the lawful extent of the search, or its metes and bounds. It also places the occupier on notice that the police have a lawful right to enter for certain purposes. If the person resists the search he or she is liable to be prosecuted for the offence of obstruction under section 146 of the Police Act. In my view, it is an important requirement of lawful search and seizure where it is undertaken pursuant to warrant that the existence of the warrant be plainly made known to an owner or occupant of premises and explained in a manner that is intelligible and this is a pre-condition to lawful search. This better ensures that warrants are executed in a civilized manner and that resistance or obstruction which can result so easily in violence is avoided.
   
8. I was initially attracted to Mr Edward’s objection and overnight considered where Attard applied in these circumstances, also unlike the assertion that there was a dispute as to the content of the Tongan record of interview necessitating evidence from the interpreter to be given, the position with the warrant is different. There has been no suggestion that the accused demonstrated any failure to understand the scope of the warrant after it had been explained to him by Mo De Feng or manifested any dissent with the police entering after this. Mr Edwards has indicated no objection to the warrant itself. In these circumstances, evidence of the fact of translation as opposed to its content is in my view no more than a verbal act or fact an the officer in stating what Mo De Feng did namely translate is not giving hearsay evidence. On the issue of verbal acts and hearsay, see Walton v The Queen [1989] HCA 9; (1989) (166) CLR 283, at 289-292 per Mason CJ, at 302 per Wilson, Dawson and Toohey JJ and R v Benz [1989] HCA 64; (1989) 168 CLR 110, at 115-116 per Mason CJ and at 134 per Dawson J.
   
9. This is a Judge alone trial. If it should transpire that there is evidence adduced which puts in issue the content of Mo De Feng’s translation or the accused’s understanding of this in some material respect, this ruling may have to be revisited. But there has been no suggestion by Mr Edwards that this was the case here or that the warrant was not translated adequately to the accused, or that he did not understand the terms of the warrant.
   
10. According, I rule the record of interview inadmissible and allow evidence of the search to be given.
    

C. B. Cato

DATED: 27 JUNE 2018 J U D G E