LEUNG CHIU MING v. SING TAO LTD

BETWEEN

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JUDGMENT

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Hon Yeung JA (giving the judgment of the Court):

1.  On 12 October 2000, the Defendant Sing Tao Ltd (“Sing Tao”), by its publisher and printer, published a piece of news in Sing Tao Daily, the contents of which were related to the particulars of the statement of claim in DCCJ 14440/2000 (“the District Court case”).  The Plaintiff in the District Court case, Silver Hero Ltd. (“Silver Hero”), alleged that the Plaintiff in the present case, Mr Leung Chiu Ming (Mr Leung), being an estate agent, conspired with people engaged in the trade of prostitution to defraud and conceal the truth, so that those people could successfully rent premises in a Chinese tenement building to be used as a brothel.

2.  Silver Hero alleged that Mr Leung, acting in the capacity of an agent of King Lung Property Ltd (transliteration), introduced to Silver Hero a Madam Leung Shuk Lan (transliteration) and a Mr Chan as tenants, to rent property under the name of Silver Hero.  Mr Leung claimed that he had known Leung Shuk Lan and Mr Chan for years and that both of them were honest and trustworthy.  Silver Hero later discovered that its property was being used as a brothel.  Silver Hero firmly believed that the estate agent in question conspired with others to defraud, the purpose being to conceal the fact that the property would be used as a brothel.

3.  On 9 April 2002, Mr Leung commenced the present action in the High Court for damages against Sing Tao, on the grounds that the above piece of news was contrary to the facts, had concealed the truth and was extremely malicious and defamatory of Mr Leung.  The Statement of Claim was written in Chinese.

4.  On 2 May 2002, Sing Tao filed a Defence to Mr Leung’s claim.  The Defence was written in English.

5.  Sing Tao admitted having made the relevant news report, but pleaded that Mr Leung had not set out in the Statement of Claim the ordinary and natural meaning of the words which he alleged to be defamatory.  Sing Tao averred that the said report could not possibly be defamatory of Mr Leung.  The words cited by Mr Leung in the Statement of Claim were quoted out of context and did not reflect the true meaning of the original text of the said report.

6.  The position of Sing Tao was that the said report was faithfully made on the basis of the statement of claim in the District Court case.  Sing Tao also pleaded that the said report was published under “qualified privilege”, by virtue of which Sing Tao was not liable to Mr Leung.

7.  On 27 June 2002, Mr Leung filed a detailed reply and rebuttal to Sing Tao’s Defence.  The reply was entitled “Rebuttal to the Defence”.

8.  The reply of Mr Leung was written in Chinese, although some simple English words and sentences were also used.

9.  Mr Leung did not accept Sing Tao’s claim that the allegedly defamatory words were quoted out of context and did not reflect the entire contents of the said report.  Mr Leung set out the evidence in detail and pleaded that the said report was a subjective judgment and not an objective and fair report.

10.  Mr Leung also emphasized that the said report was made maliciously and set out detailed arguments in support of this allegation of malice.

11.  On 21 February 2003, which was almost 8 months after the aforesaid reply was filed, Mr Leung applied for an order requiring Sing Tao to provide a Chinese translation of its Defence.  The application was refused by a Master.  Mr Leung lodged an appeal.

12.  Having heard the matter, Judge Chung of the Court of First Instance dismissed the appeal and ordered that costs of the appeal be paid by Mr Leung.

13.  Mr Leung now appeals against Chung J’s decision.

14.  Before the Reunification in 1997, all documents relevant to civil proceedings in Hong Kong were written in English.  The situation changed after the Reunification.  Article 9 of the Basic Law provides that: “In addition to the Chinese language, English may also be used as an official language by the executive authorities, legislature and judiciary of the Hong Kong Special Administrative Region.”

15.  From a constitutional perspective, parties to legal proceedings have the right to use either Chinese or English in preparing documents for the purpose of the proceedings.

16.  In order to uphold the overriding principle of justice and fairness, the Court may, in appropriate circumstances, exercise its absolute discretion to order a party to supply translations of relevant documents to assist the other party/parties to the proceedings.

17.  There are also legislative provisions that spell out the above requirement.

18.  Section 3 of the Official Languages Ordinance (Cap. 5, Laws of Hong Kong) provides that:

“(1)   The English and Chinese languages are declared to be the official languages of Hong Kong for … court proceedings.

(2) The official languages possess equal status … .”

19.  However, rule 4 of High Court Civil Procedure (Use of Language) Rules (Cap. 5C, Sub.Leg.) provides as follows:

“(1)    Any document which is required by any Ordinance to be ―

(a) filed in the Court; or

(b) served on any person,

for the purposes of any proceedings may be in either of the official languages.

(2)   Notwithstanding subrule (1), where any document which is filed in the Court by a party to any proceedings is in one of the official languages, a judge may direct the party to file a translation of the document in the other official language within such time as the judge may direct.” 

20. Nevertheless, apart from providing that a request by a party to the proceedings for a translation of a document served by another party has to be made within 3 days after the service of that document, rule 5 of the High Court Civil Procedure (Use of Language) Rules also stipulates as follows:

“(5)    Upon an application under subrule (4), the Court may ―

(a) order the requested party to provide the relevant translation to the requesting party within such period of time as the Court thinks fit if it is satisfied that the relevant request is reasonable;

(b) order that every document to be served by the requested party to the requesting party for the purposes of the relevant proceedings after the date of the order shall either ―

(i) be in the official language with which the requesting party is familiar; or

(ii)      be in the official language with which the requesting party is not familiar and accompanied by a translation of the document in the other official language; …”

21. The purpose of the relevant legislation and rules is clear.  They safeguard the constitutional right of parties to legal proceedings to use either Chinese or English in preparing documents for the purpose of proceedings, and at the same time confer upon the Court a discretionary power to order a party to provide translation(s) of document(s) in appropriate and reasonable circumstances.  However, the party requesting a translation must make the request within the prescribed time period so as to avoid undue delay or a waste of resources.

22. The judge can also decide, in light of the particular circumstances, whether trial of a case is to be conducted in Chinese or English or a mix of the two official languages.

23. In short, a party to legal proceedings does not have an absolute right to compel the other party to produce translations of the relevant documents to enable him to fully know and understand the contents of the documents.  A party only has the right to request the other party to provide a translation of a document (such request is to be made within 3 days after service of the document) or to apply to the Court for an order for provision of a translation.  The Court of course has the power to order the other party to provide a translation within an appropriate time period, but in determining whether to make such an order, the Court has to balance the interests of the various parties. The factors to be considered include whether the provision of a translation would be oppressive to any of the parties, or would cause undue delay in the proceedings, or would be a waste of resources.  The Court should also consider, among other factors, whether there are other means by which the requesting party can learn of the contents of the document, and whether his conduct of any litigation procedure would be hindered by the absence of translations.  The most important consideration is, of course, whether the relevant decision would result in injustice or unfairness.

24. In deciding whether there would be injustice or unfairness, the Court should not only consider the interests of a particular party; it must also consider all relevant factors, such as the interests of the various parties to the proceedings, judicial resources and social needs.

25. Very often, and inevitably, the decision of the Court cannot fully meet the needs of a particular party or be completely satisfactory.  This is because the Court must also have regard to a whole gamut of other interests.

26. In determining whether or not to allow a request for translation(s) of document(s), the Court must decide, in light of all relevant factors, whether the request is reasonable.  The trial judge has a discretion in making the decision.  Unless there is sufficient evidence to show that the exercise of the discretion has been manifestly improper, unreasonable or wrong, the appellate court will not interfere with the decision of the trial judge.

27. As mentioned above, the Defence of Sing Tao was filed on 2 May 2002, but Mr Leung did not apply to the Court within the prescribed period for an order requiring Sing Tao to provide a Chinese translation of the Defence on the ground that he could not understand its contents.  Furthermore, on 27 June 2002 the applicant made a detailed reply and rebuttal to the Defence.

28. The reply that Mr Leung filed on 27 June clearly shows that he could understand the contents of the Defence.  He has submitted that he could not understand the meaning of “qualified privilege” in paragraph 8 of the Defence. “Qualified privilege” is a legal concept.  Whether one can understand the concept depends on his knowledge of the relevant law and has nothing to do with the language in which the concept is expressed.

29. Mr Leung’s contention that he did not understand or did not fully understand the contents of the Defence is untenable.  Be it with the help of friends and/or dictionaries, and whether directly or indirectly, Mr Leung’s understanding of the contents of the Defence is such as to enable the matter to proceed to pre-trial and formal trial in a just and fair manner.  In the circumstances, to require Sing Tao to provide a Chinese translation of the Defence at the present stage would not reap any extra benefit but would only cause undue delay and a waste of resources.

30. It has to be pointed out that Mr Leung is not legally represented and his Statement of Claim was written in Chinese.  To avoid unnecessary dispute, it would have been better if the legal representatives of Sing Tao had used Chinese instead of English in preparing the Defence.  As it is, the legal representatives of Sing Tao prepared the Defence in English, and in circumstances like the present case this practice is not to be encouraged.

31. We can also understand Mr Leung's position.  As he has pointed out, these proceedings arose from a Chinese news report, and it makes eminent sense for him to expect to be provided with a Chinese translation of the Defence.  From his point of view, the best solution would be to provide him with a Chinese translation of the Defence.  However, the Court cannot possibly satisfy all the needs of the parties to the proceedings, and a choice has to be made.  Moreover, the Court must follow the prescribed legal procedure in dealing with matters that come before it.

32. Both the Master and Chung J held that there had been serious delay in Mr Leung's application and that no unfairness or injustice would be caused if Mr Leung was not provided with a Chinese translation of the Defence.  They made what were in their views the most appropriate decisions after balancing the interests of the parties and considering all the relevant factors.

33. The decisions made by the Master and Chung J are justifiable and correct.  We do not agree with Mr Leung's contention that the Master and/or Chung J exercised their discretion improperly, unreasonably and erroneously.

34. In the circumstances, we see no reason for varying their decisions.  Mr Leung's appeal must be dismissed.

35. We also order that the costs of this appeal be borne by Mr Leung, to be taxed if not agreed.