1. The Appellant was charged with two counts of drug trafficking and one count of drug manufacturing. Although the trial was conducted in English, the jury requested a Chinese interpreter for the closing statements of counsel and the trial judge. Consequently, simultaneous interpretation of the closing statements was provided to the jurors (through headsets), with some listening to the original English version and others listening to the Chinese translation. It is not known which jurors listened in which language. There was also no record of the Chinese translation. The Appellant was convicted of all three counts, and appealed against his conviction claiming the above arrangement deprived him of a fair trial. 2. The Appellant’s appeal was dismissed by the Court of Appeal. Although the arrangement was found to be unusual, the Court of Appeal held that it did not deprive the Appellant of a fair trial. They held that the simultaneous interpretation of the closing statements fell within the meaning of “use” of language under section 5(1) of the Official Languages Ordinance (Cap.5) (“OLO”) and that, since the Appellant was unable to point to any misdirection in law by the trial judge, there was no material risk of misinterpretation given the high quality of the interpretation provided. 3. The Court took a different view. The Court held that, even if simultaneous interpretation was a “use” of language under section 5(1) of the OLO, it did not follow that this precluded a complaint of unfairness in the trial process or inconsistency with the principle of open justice. In the present case, the Court held that the Appellant did not receive a fair trial because the arrangement gave rise to a number of problems and contravened the principle of open justice. 4. First, the simultaneous interpretation did not allow the listener to hear both the speech in its original language and its translation and so translation errors could not be detected immediately. Secondly, jurors would not have been provided with the same summing-up since some listened in English and others in Chinese. Thirdly, there was no record of the translation, so that there was no way to assess what some jurors heard, and thus no way of ascertaining whether there were any misinterpretations. These problems gave rise to a concern that the arrangement infringed the principle of open justice, under which “justice must not only be done, it must be seen to be done”. 5. The Court concluded that the arrangement was not consistent with the principle of open justice, and the Appellant was deprived of a fair trial. The high quality of the interpretation in this case did not answer the criticism that the arrangement resulted in some members of the jury receiving a different set of instructions by way of summing-up to that received by the jurors who listened to the judge address them in English. Nor did it answer the criticism that the arrangement did not ensure that the interpreter’s translation of the summing-up was recorded and that there was a proper record of it which could be reviewed. Open justice required that justice be seen to be done, not assumed to have been done. 6. In answering the questions of law posed for the Court’s decision, the Court held that, where a concern or “red flag” was raised as to the sufficiency of a juror’s knowledge of the language of the proceedings, there is a continuing duty on the trial judge to exercise the discretion conferred under sections 4(2) and 25(1) of the Jury Ordinance (Cap.3) to discharge a juror if the judge were not satisfied that the juror could understand the proceedings. 7. Where such a red flag is identified, the proper approach is first to ascertain the precise nature and extent of the problem. In some cases, it might be possible to discharge one or two jurors and continue the trial with a lesser number of jurors, but sufficient to return a lawful verdict. Whether that might be a suitable solution would depend on the facts of the case. 8. Where, though, the trial judge believed it would be in the interests of a fair trial to provide interpretation services, consecutive interpretation in open court would be preferable. However, the Court’s judgment was not to be understood as encouraging the adoption of consecutive interpretation to the jury, which was at best a mitigating measure for an unexpected problem. DISPOSITION: 9. Accordingly, the Court unanimously allowed the Appellant’s appeal and quashed his convictions and ordered his re-trial on the charges.