Former boxing champ and gospel singer to get new trial after lawyers show interpreter struggled to keep up with judge and was not even fluent in Tongan.
An Auckland man duped into smuggling drugs and facing nearly 24 years inside a Hong Kong prison had his conviction overturned because of problems with time pressure and Tongan translation at his trial.
Alipate Moala, 51, was in Hong Kong International Airport to catch a flight to Auckland in September 2015 when 1kg of methamphetamine was found hidden inside his luggage.
The former champion boxer and gospel singer says he thought he was carrying a chemical cleaning agent for which, on safe delivery to New Zealand, his church would receive a cash donation.
Tonga-born Moala had been recruited by email and the “cleaning agent” deception is a scam commonly used by West African crime syndicates to target vulnerable individuals.
Ten others arrested in Hong Kong in similar circumstances around the same time were acquitted at trial.
But Moala was convicted of drug trafficking and sentenced to 23 years and 9 months in prison.
However, after a successful appeal by his lawyers Dr Gerard McCoy QC and Dr Nisha Mohamed, Moala will get a new trial.
His legal team argued the translation at the original trial was “fundamentally flawed”.
A rugby player without any previous experience in translation was the only person who could be found in Hong Kong to interpet at the trial.
The delay in finding a translator meant the trial, estimated to last 5 days, stretched to 13.
An impatient jury said the majority would not sit after a particular day. So the judge sat for longer hours and in delivering his summary of the case, spoke at up to 197 words per minute.
For Moala’s hearing in the Hong Kong Court of Appeal, a professor in linguistics submitted a report on the complexity of the judge’s summing up.
He observed professional interpreters for the United Nations can operate at 120 words per minute, but only for 12 minutes at a time.
The Tongan interpreter at trial, who had no experience, translated the judge’s summing up for more than 4 hours.
Sefita Hao’uli, a Tongan radio broadcaster, also gave expert evidence at the appeal.
His opinion was the trial interpreter spoke Tongan with no more than 50 per cent fluency and no more than 40 per cent accuracy in translation.
Under questioning from Dr McCoy, the interpreter conceded he did not know how to say in the Tongan language words such as “suspicion”, “DNA” and “inference”.
Dr McCoy also submitted the judge spoke slowly in his review of the prosecution case but at “galloping speed” in summarising the defence case.
This created a “subliminal impression” the defence case was not worth considering, said Dr McCoy.
The Hong Kong Court of Appeal quashed the conviction and sentence of Moala. He was remanded in custody ahead of the retrial, although a bail application will be made.
The grooming of naive individuals as unwitting drug mules is a hallmark of West African crime syndicates and others have been caught in New Zealand.
Shortly after Moala was arrested in Hong Kong, retired American couple Archie and Karenkay Ross were caught with 7.2kg of methamphetamine at Auckland International Airport in October 2015.
The couple believed they were carrying experimental malaria medication.
In sentencing them to 4 years 2 months in prison, Justice Christian Whata accepted they had been “groomed over several years to be exploited as drug mules” and were deeply remorseful.
In May 2015, Auckland man Trevor Miranda was found not guilty of importing methamphetamine after falling prey to a similar scam.
He refused to take a cleaning chemical back to New Zealand for fear of taking a dangerous substance on a plane.
Instead, Miranda was told the chemicals would be shipped to his Auckland home and has was given a laptop to “track” the progress of the parcel.
Turns out he was carrying 1.5kg of methamphetamine.
Miranda spoke with the Weekend Herald in 2015 to warn others but struggled to explain how he was taken in by the tall tales.
“I’ve never seen this man. I’ve never had a photograph of him. But he kind of brainwashed me,” Miranda said.
“They were preying on my naivety … they could manipulate me. I have lost a lot … it’s something that was a fantasy that they made me feel was to come to fruition. And it didn’t happen. It just didn’t happen.”