THE ATTORNEY GENERAL v. WU SEE-SIN

MA No. 506 of 1994

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H E A D N O T E

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WHERE PROCEEDINGS IN THE MAGISTRATES COURT ARE CONDUCTED IN THE CHINESE LANGUAGE. THE ABSENCE OF A TRANSLATION IN THE ENGLISH LANGUAGE OF DOCUMENTS IN THE CHINESE LANGUAGE DOES NOT MAKE SUCH DOCUMENTS INADMISSIBLE.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 506 OF 1994

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J U D G M E N T

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1. The respondent was charged that on 23rd March 1993 without reasonable excuse he charged a taxi fare in excess of the appropriate scale. He pleaded not guilty and, represented by counsel, was tried before the magistrate Mr C.H. Leung.

2. The magistrate, with the consent of the parties, elected to conduct the proceedings in the Chinese Language. He was entitled to do so pursuant to s.5(1) of the Official Languages Ordinance, Cap. 5 (read in conjunction with the Schedule to Cap. 5) which provides that the proceedings in the Magistrates Courts may be conducted in either of the official languages, Chinese and English, which the court thinks fit. This choice is not available to judges in the Court of Appeal, High Court and District Court.

3. PC 4646 gave evidence that, following a complaint by the taxi passenger, he issued a statutory notice to the registered owner of the taxi requiring the owner to supply the name of the driver of the taxi at the material time. The form was returned to him completed in Chinese characters and naming Wu See-sin as the driver. This document was marked as exhibit P2. PC 4646 then personally issued a Pol.671 to a person of the driver's name of WU See-sin, who completed in Chinese characters the particulars required in the notice and handed it back to PC 4646. This was marked as exhibit P3. The particulars stated Wu See-sin as the driver of taxi at the material time. P2 and P3 did not have English translations.

4. There was evidence from the complainant as to be incident. The respondent elected not to give evidence. The magistrate held there was a case to answer and then went on to find : (1) that PC 4646 had not checked the identity document of the person he interviewed to confirm it was in fact WU See-sin; (2) that PC 4646 had not identified the respondent in court to be the person he had interviewed; (3) that as there were no certified translations of exhibits P2 and P3, they were inadmissible. There was, therefore, no evidence to identify the respondent as the driver of the taxi at the material time.

5. He therefore dismissed the charge. The appellant requested the magistrate to state a case which he has now done and the questions of law for the opinion of this court are :

(a) firstly, whether I was correct in holding that there was no evidence identifying the respondent as the driver of the taxi at the material time.

(b) secondly whether I was correct in holding that exhibits P2 and P3 were inadmissible because no certified translations thereof had been produced as required by s.27 of the Evidence Ordinance, Cap.8.

6. Section 27 of the Evidence Ordinance, Cap.8 does not "require" the production of a certified translation. What it does do is to provide a mechanism for admissibility of a certified translation of a document written in a language other than the English language. Clearly where the proceedings are conducted in the English language such a certified translation would be necessary. There is however no general provision in the Laws of Hong Kong that in the case of proceedings in the Magistrates Court all documentary exhibits written in a language other than the English language must be accompanied by a translation certified under s.27. This can be contrasted with the provisions of s.80B(3) of the Magistrates Ordinance, Cap.227 which requires the production of a certified translation for the purposes of a committal to the High Court, where of course the proceedings must be conducted in the English language.

7. The proceedings referred to in s.5(1) of Cap.5 must be taken to mean the whole of the proceedings, including the exhibits. Where the proceedings are conducted in the Chinese language pursuant to this provision, it would make no sense to require the documentary exhibits to be accompanied by a certified English translation. To do so would be a waste of time and money.

8. The magistrate was wrong to rule that in the absence of certified translations, exhibits P2 and P3 were inadmissible. These documents did provide evidence that the respondent was the driver of the taxi at the relevant time.

9. The questions raised are answered to follows :

(a) No.
(b) No.

The appellant does not seek to have the matter referred back to the magistrate and I therefore make no order in this regard.