GRANT THORNTON INTERNATIONAL LTD AND OTHERS v. TANG CHUNG WAH AND ANOTHER

HCCL 17/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 17 OF 2012

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BETWEEN

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REASONS FOR DECISION

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Introduction

1.  At the conclusion of the hearing on 7 March 2013, I made the following orders:

(1)     The Defendants do within 14 days from the date hereof provide to the Plaintiffs and file in court an English translation of their Defence and Counterclaim filed herein.

(2)     The Defendants do provide to the Plaintiffs and file in court an English translation of all further Chinese documents to be filed in court herein and served by them on the Plaintiffs.

2.  In consequence of the order at paragraph 1(1) above, I also varied an Order I made in this action on 4 March 2013 such that the time for the Plaintiffs to file their Reply and Defence to Counterclaim was extended to 28 days after the Defendants had provided the English translation of their Defence and Counterclaim to them.

3.  I told the parties I would hand down my reasons shortly, which I now do.

The Application

4.  This is an application by the Plaintiffs under Section 5(4) of the High Court Civil Procedure (Use of Language) Rules Cap 5C (“the Rules”) for an order that:

a.  the Defendants do within 7 days produce a certified  translation in the English language of their Defence and Counterclaim on  the ground that the 1^st Plaintiff, an English limited company, is not familiar with the Chinese language;

b.  every document to be served by the Defendants on the Plaintiffs be in the English language.

5.  The Defendants oppose the application.

6.  On 4 February 2013, the Defendants filed and served a Defence and Counterclaim in the Chinese language. On the same day, the Plaintiffs’ solicitors made a written request to the Defendants for a certified English translation of it.

7.  The Defendants did not reply within 3 days, as required by Section 5(3) of the Rules.

8.  Instead, by a letter in Chinese dated 15 February 2013, the Defendants asked the Plaintiffs’ solicitors, inter alia, to identify the “Requesting party” in their earlier letter. The Plaintiffs filed the summons for the present application on 19 February 2013. On 20 February 2013, the Plaintiffs’ solicitors informed the Defendants that it was the 1^st Plaintiff which was not familiar with the Chinese language. By a letter in Chinese dated 1 March 2013, the Defendants informed the Plaintiffs’ solicitors that they would not provide the requested English translation.

9.  The evidence originally filed in support of the application consisted of an affidavit of Amanda Joy Beattie of the firm King & Wood Mallesons, the Plaintiffs’ solicitors. The gist of that affidavit was that the 1^st Plaintiff was a private company incorporated in England and Wales and the firm took instructions from Mr Daniel Harry Lichtenstein, the General Counsel of the 1^st Plaintiff, who was not familiar with the Chinese language. On the other hand, both Defendants were familiar with the English language.

10.  Then, on 5 March 2013, the Plaintiffs filed an affidavit of Gary Terence James, the 5^th Plaintiff herein, in further support of the application. The gist of Mr James’ evidence was that he himself, like Mr Lichtenstein, was a native English speaker and not familiar with the Chinese language. Again, he emphasised that both Defendants were formerly partners at Grant Thornton until the partnership changed its name to JBPB & Co and were familiar with the English language.

11.  This court has no reason to doubt the evidence of Ms Beattie or Mr James. Nor does this court doubt the Defendants are educated professionals conversant with both the Chinese and English languages.

12.  In considering this application, the starting point is that both the Chinese and English languages are official languages of Hong Kong for the purposes of inter alia court proceedings. Both languages possess equal status and enjoy equality of use: section 3 Official Languages Ordinance, Cap 5.

13.  Section 5 of the Rules provides that:

“(1) A party to any proceedings who-

(a) is served with a document in an official language with which he is not familiar; and

(b) is familiar with the other official language,

may request the party to the proceedings serving the document to provide him a translation of the document in the other official language.

(2) A request under subrule (1) shall be made-

(a) in writing; and

(b) within 3 days after the service of the relevant document.

(3) A requested party shall-

(a) notify in writing the requesting party within 3 days after receiving the request that-

(i) he will provide the translation as requested; or

(ii) he will not provide the translation;

(b) where he notifies the requesting party that he will provide the translation, provide the translation to the requesting party within a reasonable period of time.

(4) Where a requesting party-

(a) is not notified under subrule (3)(a);

(b) is notified under subrule (3)(a)(ii) that the requested party will not provide the translation…

he may apply to the Court for an order that the requested party shall provide the relevant translation to him.

(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; and

(c)   make such order as to the costs of and incidental to the application as it thinks just.”

14.  Notwithstanding section 7 of the Interpretation and General Clauses Ordinance, Cap 1[1], this court doubts whether the legislature, when enacting section 5 of the Rules, intended that it should cover not just natural persons but also legal entities like a limited company. It seems to this court rather unnatural to speak of a company’s familiarity or otherwise of a particular language. But the point has not been fully argued and in any event it is not necessary to come to a concluded view on this question for the purpose of disposing of the present application.

15.  Assuming that Section 5 is intended to cover corporations, in order for the 1^st Plaintiff to be entitled to make a valid request for English translation of the Defence and Counterclaim, it has to show that it is not familiar with the Chinese language but is familiar with the other official language ie English.

16.  In my view, the fact that the 1^st Plaintiff is a private company incorporated in England and Wales is hardly evidence that it is not familiar with the Chinese language. The fact that one person within the 1^st Plaintiff’s organisation ie Mr Lichtenstein is not familiar with the Chinese language does not take the matter significantly further. All corporations conduct their business by their directors, employees and agents. If one or more of the 1^st Plaintiff’s directors, employees or agents are sufficiently familiar with the Chinese language and are reasonably available to be deployed for the purpose of these proceedings, that would in my view be sufficient to take it out of the ambit of Section 5(1).

17.  In the present case, the 1^st Plaintiff did not attempt to establish by evidence that none of their directors employees and agents are familiar with the Chinese language and Mr Brock for the Plaintiffs, advisedly, did not purport to make a submission to that effect before this court.

18.  What is more, the Plaintiffs are represented in these proceedings by an established firm of solicitors. In legal parlance, the firm is the agent of the Plaintiffs for the purpose of these proceedings. This court does not think for a moment that, as a firm of solicitors operating in Hong Kong, it would deny being familiar with both official languages of Hong Kong.  If so, it means that by virtue of the language capability of its agent, the 1^st Plaintiff cannot be regarded as unfamiliar with the Chinese language for the present purpose.

19.  For these reasons, I rule that the 1^st Plaintiff has failed to establish to the satisfaction of this court that it was entitled to make a request under Section 5(1) of the Rules for an English translation of the Defence and Counterclaim on 4 February 2013. It follows that the 1^st Plaintiff was not entitled to make the present application under Section 5(4) of the Rules.  Nor for that matter any of the other Plaintiffs as they had not made a request within three days.

20.  In so far as the Plaintiffs seek to reinforce the present application by the affidavit of the 5^th Plaintiff, Mr James, the short answers are that firstly, it was the 1^st Plaintiff, not Mr James, which made the request for the English translation of the Defence and Counterclaim within three days after the service of the document, and secondly, by virtue of the language capability of his solicitors, the 5^th Plaintiff also fails to establish that he is unfamiliar with the Chinese language for the present purpose. In any event, even disregarding the said difficulties with Sections 5(1) and 5(4) of the Rules, the Plaintiffs still have to satisfy the court that their request is reasonable, in accordance with the terms of Section 5(5)(a) of the Rules. In the present case, in view of the fact that the Plaintiffs are legally represented and in view of the language capability of their solicitors, this court would not regard the request as reasonable  and would not make any order under Section 5(5)(a) or (b) of the Rules.

21.  That is not the end of the matter.

22.  Section 4(1) of the Rules provides that any document which is required by any Ordinance[2] to be filed in the Court or served on any person for the purposes of any proceedings may be in either of the official languages. Section 4(2) of the Rules however empowers a judge to direct a party who has filed a document in one of the official languages to file a translation of it in the other official language.

23.  It is clear from Section 4(1) of the Rules the Defendants are entitled to file and serve any court documents in Chinese. Unless an exceptionally strong case can be made out, this court would not deprive them of the liberty to file a document in these proceedings in the official language of their choice. No such case has been made out. This court would, also for this reason, refuse the Plaintiffs’ application for a direction that every document to be served by the Defendants on the Plaintiffs be in the English language.

24.  As a matter of good case management of the court system and, more importantly, for the purpose of a just and expeditious disposal of this action, I consider it proper and legitimate to direct the Defendants to provide an English translation of their Defence and Counterclaim as well as all further Chinese documents to be filed in court and served by them on the Plaintiffs. Further, I consider that such a direction would not impose an undue burden on the Defendants.

25.  In this regard, I have derived considerable assistance from Cheung Kong Holdings Ltd v Chan Wai Yip Albert [2000] 4 HKC 591. At p 595, Waung J observed that:

“…as a matter of good case management of the court system, where cases can go to various judges (some who are not bilingual) from time to time, as well as for the proper joining and clarification of issues, English translations of these important statements should be ordered. Translations, very often, would highlight the crucial differences between the parties especially when there is a dispute, and translations would allow the court system to operate smoothly so that any judge (whether bilingual or not) taking up the matter at the interlocutory stage would be able to quickly deal with it….”

26.  The same consideration applies in the present case.

27.  As far as undue burden is concerned, on the evidence, it seems to this court quite clear that the Defendants are conversant with both the Chinese and English languages. The Defence and Counterclaim is a two‑page document. If they choose to, the Defendants are quite capable of translating the document into English themselves. If they prefer external translation services, the expenses are unlikely to be substantial. As for the further Chinese documents to be filed and served by them, if any, the Defendants are to a large extent in control of the amount of paperwork they choose to generate for the purpose of these proceedings. They also have a choice of the language they are going to use. 

Costs Order nisi

28.  As far as the present application is concerned, the Plaintiffs have failed to establish a proper basis for their request under Section 5(1) or their application under Section 5(4) of the Rules. It is only fair that they should not have the costs of the application.

29.  While the end result is that the Defendants will have to provide the English translation of the Defence and Counterclaim, as well as any further Chinese documents to be filed and served by them, this is by virtue of the court’s case management power as well as the power conferred on this court by Section 4 of the Rules.

30.  In these circumstances, it seems to this court appropriate to make an order nisi that the costs of and occasioned by the application be in the cause.

31.  On 4 March 2013, this court granted the Plaintiffs an extension of time to file their Reply and Defence to Counterclaim but reserved costs until the conclusion of the present application.

32.  Since the Plaintiffs were seeking an indulgence from the court, I make an order nisi that the costs of and occasioned by the Plaintiffs’ application for an extension of time be to the Defendants.