JIAN YU QIANG v. LI SHI LIANG AND OTHERS

HCA459/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 459 OF 2003

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D E C I S I O N

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1. This is the defendants' appeal against the decision of the Listing Master made on 14 February 2004 whereby leave was granted for the action to be set down within 60 days in the Fixture List for a six days' trial and the defendants' application to list the trial before a bilingual judge was refused.

Appeal against leave to set down

2. On the appeal against the order granting leave to set down, the defendants' principal ground is that the case is not ready for trial. The defendants have identified a number of outstanding interlocutory matters.

Previously before the Listing Master, it was said that there was a need to obtain expert evidence on PRC law as well as on handwriting matters. This is no longer relevant given the plaintiffs' indications through leading counsel that he would remove all references to PRC law in the pleadings and witness statements, and also he did not dispute having signed the sale and purchase agreement and the declaration of trust, which are relied upon by the defendants.

3. The other outstanding matters that had been identified by the defendants' leading counsel are the need to file supplemental witness statements, to administer further interrogatories, to request for further and better particulars as well as to seek specific discovery. These outstanding matters were not raised before the Listing Master, partly because the Amended Reply and Defence to Counterclaim, that gives rise to further interlocutory steps, was filed subsequent to the hearing.

4. In my view, there is, in principle, no requirement that leave to set down should never be granted when there are further interlocutory steps to be taken. The Listing Master, in discharging his duties under the Rules of the High Court and the Practice Direction, has a wide discretion. In exercising his discretion, he may have regard to such relevant factors

as the nature and complexity of the case and the outstanding interlocutory matters, the position of the court diary and the likely trial date, the conduct of the parties and whether the history and circumstances of the case call for an early trial. It is within his power and duty to maintain the balance between, on the one hand, a need to ensure that trial dates will not be wasted by ensuring that cases are ready at trial, and, on the other hand, a need to prevent delays to trials.

5. As noted above, the only matter mentioned to the Listing Master to show that the case should not be set down was the issue of expert evidence. It would appear that when the Master granted leave for the case to be set down, he had taken into account the defendants' position that there were outstanding interlocutory matters because he had provided a 60 days' period for setting down, which is longer than the time usually given for setting a case down for trial. Considering that this is a six days' fixture list case, and having regard to the current state of the court's diary, there would clearly be ample time for the expert evidence to be obtained before the trial date. There is in place, at the same time, an interlocutory injunction such that the trial should be brought on without unnecessary delay. Accordingly, it would not be a wrongful exercise of the Listing Master's discretion to grant leave to set down the case for trial even if it is contemplated that there are some outstanding interlocutory steps, which can be accomplished in the time leading to the trial.

6. So far as the further steps that the defendants have identified, it is, on their counsel's estimate, not expected that they would need very lengthy periods to achieve. If the case is being set down within the 60 days' period, there is no reason why they would have been completed reasonably before the trial date.

7. In my view, fixing a date within the 60 days' period granted will have the distinct advantage of focusing the parties' minds on the trial date, which they should endeavour to meet in carrying out the interlocutory steps and other preparations for the trial.

8. For my part, I see no reason to exercise the discretion differently. I would dismiss this part of the appeal. I would also point out that, for the reasons mentioned above, the dismissal is independent of the plaintiff's latest indication to remove all references to and his reliance on PRC law and also the plaintiff's clarification that he did not dispute having signed the sale and purchase agreement and the declaration of trust.

9. However, for good case management purpose, and to ensure that the outstanding matters identified by the defendants are completed before the trial date, the trial should not be before 31 December 2004, as suggested by the defendants' leading counsel. I further direct that the pre-trial review should be fixed on a date not later than eight weeks (instead of four weeks) before the trial date so that the trial judge would be in a position to ensure that all interlocutory matters have been completed.

Appeal against refusal of a bilingual judge direction

10. The other part of the appeal relates to the defendants' summons to have the trial listed before a bilingual judge. There are two main reasons for seeking this direction. Firstly, it is that all the witnesses are Chinese speaking. For the defendants' witnesses, they had given their witness statements in Chinese. Secondly, it is because many of the documents are in Chinese. If the trial judge is bilingual, there will be no need to provide translations. Initially it is also said that because PRC law is written in Chinese, a bilingual judge will be in a better position to appreciate and interpret the relevant rules and regulations relied on by the plaintiff. With the plaintiff's latest indication that the references to and reliance on PRC law would be removed, this is no longer a relevant consideration.

11. It is a matter of the Listing Master's discretion as to whether to direct for the trial to be a bilingual judge. It is common ground that in exercising the discretion, the primary concern and objective is the fair and expeditious disposal of the case.

12. The realities in this case are that the plaintiff is represented by counsel who are not bilingual. In particular, the plaintiff's junior counsel has been advising on the case for some time, and he had previously confirmed to the plaintiff's solicitors that he is not conversant with the Chinese language.

13. If the plaintiff were to hold on to the present team of counsel, the necessary implications would be that, firstly, the oral testimony would have to be translated at trial, and secondly, the documents would have to be translated. I note also that presently both sides have not ruled out the possibility that counsel will make submissions in English. This means that the judgment may well be delivered in English.

14. Central to the defendants' submissions is that the plaintiff's choice of counsel, although relevant, is not an essential consideration given that there is still some time to trial. What is implicit in this argument is that the plaintiff can always change his counsel, and he will have to do so if the trial is directed to be before a bilingual judge. But this is to ignore the fact that the plaintiff's junior counsel has been involved in the case for some time by now. Additional costs and possibly additional time will be incurred if the plaintiff were to be forced to change counsel at this stage. I take the view that save in exceptional circumstances, parties' right to be represented by counsel of their choice should be respected. It would, for example, be appropriate to disregard a party's choice of counsel if it will cause unnecessary delay or is otherwise not conducive to a fair and expeditious disposal of the proceedings. After all, both Chinese and English are official languages for the purpose of court proceedings.

15. The present case is not one where the trial judge's knowledge of Chinese is demonstrated to be of great significance. Neither is this a case where there will be distinctive and substantial advantage to be gained by having a bilingual trial judge. There are no circumstances that justify disregarding the plaintiff's choice of counsel.

16. As I see it, the natural advantage of having a bilingual trial judge is that the defendants will be relieved from the burden of having to translate the bulk of Chinese documents that they have introduced and will be relying on. As to the other savings suggested by the defendants, they have not taken into account the fact that the plaintiff's counsel is not conversant with the Chinese language. The preference of the defendants' witnesses to testify in Chinese is unaffected by whether the trial is before a bilingual or monolingual judge. If the plaintiff, as he is entitled to, holds on to the present team of counsel, the oral evidence given in Chinese will have to be translated irrespective of whether the trial judge is bilingual or monolingual. Similarly, if the plaintiff holds on to the present team of counsel, then irrespective of whether it is a monolingual or bilingual judge, the Chinese documents would have to be translated. If there is a direction that the trial is before a bilingual judge, however, the defendants are not obliged to provide translations to their Chinese documents, leaving it to the plaintiff to provide translations to his counsel.

17. The plaintiff submits that if the trial were directed to be listed before a bilingual judge, the trial will be delayed. It is working on the basis that the number of bilingual judges hearing civil matters is less than that of the monolingual judges. I am not prepared to act on such assumption in the absence of evidence. What is, however, clear to me is that a direction that the trial be listed before a bilingual judge will have the effect of reducing the flexibility in listing and fixing the trial date because the listing officer's options will be limited and restricted to those judges who are bilingual.

18. In short, having regard to the matters referred to above, the defendants have not made out a case that a fair and expeditious disposal of the action requires that the trial be directed to be listed before a bilingual judge. It follows that this part of the appeal is to be dismissed.

Costs

19. The normal rule is that costs follow event. Although the plaintiff has lately indicated an abandonment of the points on PRC law and clarified his case on the sale and purchase agreement and the declaration of trust, this has not brought about any significant difference to the plaintiff's decision and/or conduct of the appeal. As noted above, the dismissal of the appeal against the decision to grant leave to set down the action is independent of these late indication and clarification. The costs of the appeal are to be paid by the defendant to the plaintiff.

20. The plaintiff asks for certificate for two counsel. I accept that it is not of necessity that where one party appears by two counsel, the other side is justified to appear by two counsel. It is however a relevant factor. In the circumstances of the case, I consider it is appropriate to give a certificate for two counsel.

Conclusion

21. The orders that I make are as follows:

(1) The defendants' appeal is dismissed.

(2) The trial is not to take place on a date before 31 December 2004.

(3) The pre-trial review to is to take place before the trial judge on a date no later than eight weeks before the scheduled trial date.

(4) The costs of the appeal be to the plaintiff against the defendants, to be taxed if not agreed. There is a certificate for two counsel.