PO SANG BANK LTD v. HOY SENG SUI AND OTHERS

[English Translation]

HCMP 6699/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 6699 OF 1999

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JUDGMENT

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1. This appeal is related to a “mortgagee action” commenced under Order 88 of the Rules of the High Court.  The Appellants herein are the two defendants in the mortgagee action.

2. By an application made on 31 January 2000, the Appellants sought an adjournment of the hearing of the mortgage action and an order requiring the plaintiff to provide Chinese translations of all documents relating to the action.  On 9 February 2000, following a hearing, the Registrar dismissed the application with costs.  The Appellants now appeal against the decision of the Registrar.

3. The mortgagee action was commenced by the plaintiff on 28 October 1999.  The Appellants made several applications, on 12 December 1999, 8 January 2000 and 31 January 2000 respectively, requesting the plaintiff to provide Chinese translations of the documents relating to the action.  As indicated above, the Registrar heard and dismissed the application on 9 February 2000.

4. The present appeal came before this Court on 9 March 2000 and 23 March 2000.  At the hearing on 9 March 2000, the Respondent handed in a written submission in English (dated 8 March 2000).  One of the paragraphs of the submission referred to the “unreasonable request of the Defendants”.  This paragraph comprised 8 sub-paragraphs, which set out the various matters relevant to these proceedings.  At the hearing, upon my direction and on my behalf, a court interpreter asked the Appellants in Putonghua whether they agreed with what was stated in the 8 sub-paragraphs.  The Appellants indicated that they agreed with the contents of the 4^th, 5^th, 7^th and 8^th sub-paragraphs.  In brief, these sub-paragraphs stated the following:

(a) By two Chinese letters both dated 20 December 1999, the plaintiff’s solicitors explain to the Appellants what the plaintiff’s action was about;

(b) The nature of the “amended originating summons”, the legal charge and mortgage papers in relation to this action had been explained to Mr. Hoy Seng Sui of the 1^st defendant by a court interpreter after the hearing on 2 January 2000;   

(c) The plaintiff had offered to provide Chinese translations of the documents to the Appellants if they agreed to pay the translation fees, but Mr. Hui of the Appellants rejected the offer for the reason that he did not trust the plaintiff; and

(d) From the commencement of the proceedings on 31 January 2000 till now, the Appellants have not arranged to have the documents translated into Chinese.

5. As for the mortgage documents, the Appellants also agreed that two of the documents are both in English and Chinese (i.e. Exhibits “WL-1” and “WL-2” to the affirmation of Lee Pui Shan Wendy) and that one document (Exhibit “WL-3”) contains Chinese translation only at the space designated for signature.

6. At the hearing on 9 March 2000, I explained to the Appellants that according to Section 5 of the Official Languages Ordinance (Cap. 5) and Rule 1 of the Official Languages (Translation) Rules (Cap. 5B), any document written in Chinese that is to be admitted in evidence must be accompanied by a certified translation in English, and vice versa, and that notwithstanding such provisions, the court may at any time dispense with the need for a translation of a document from one official language to the other official language.  This Court also handed to the parties photocopies of the relevant provisions.

7. Section 5 of the Official Languages Ordinance reads as follows:

 “5.     Judicial proceedings

(1) A judge, magistrate or other judicial officer may use either or both of the official languages in any proceedings or a part of any proceedings before him as he thinks fit. (Amended 21 of 1999 s.24)”

and Rule 1 of the Official Languages (Translation) Rules provides that:

 “1.     Translation of documents in official languages

(1) If a court indicates that it intends to conduct a trial, or a part of a trial, in the Chinese language, any document that is written in the English language that is to be admitted in evidence must be accompanied by a certified translation in the Chinese language.

(2) If a court indicates that it intends to conduct a trial, or a part of a trial, in the English language, any document that is written in the Chinese language that is to be admitted in evidence must be accompanied by a certified translation in the English language.

(3) The court may at any time dispense with the need for a translation of a document from one official language to the other official language.

(4) These Rules apply to both civil and criminal proceedings in all judicial proceedings to which the Ordinance applies.

(5) In these Rules ‘court’ includes a magistrate or other person conducting judicial proceedings.”

8. I take the view that the above provisions (particularly Rule 1(3)) gives the court a discretion to dispense with the need for a translation of a document.  In exercising the discretion, the court should take into account all the relevant circumstances, including the following two matters:

(a) Whether both parties or one of the parties to the action will be prejudiced if the need for a translation of a document is to be dispensed with; and

(b) The basis of the “cause of action” or “ground of defence” put forward by the party requesting the translation.

9. And in respect of point (a), the factors which I should consider include:

(1)    The language proficiency of either or both of the parties;

(2)    The ability of and resources available to either or both of the parties in providing translations of the documents relevant to these proceedings;

(3)    Whether either or both of the parties has/have reasonable time and opportunity to translate those documents;

(4)    The importance of those documents in the proceedings; and

(5)    Whether either or both of the parties has/have in fact known, or ought reasonably to have known the contents and/or the nature of those documents even in the absence of translations.

10. At the hearing on March 9, I confirmed that the Appellants knew the general nature of the mortgage and loan documents and agreement which they signed at the plaintiff bank.  The Appellants’ incessant requests for translations of documents by the plaintiff were, in fact, mainly directed at the agreement which, the Appellants alleged, was signed after they reached an oral agreement with the plaintiff between January and February 1999 for an extension of the deadline for repaying the loan (i.e. Exhibit “WL-3”).

11. On March 9, I directed that each party to the action should, within the prescribed period, file with the court an affirmation in support or defence of this appeal and have the same served on the other party.  The Appellants filed an affirmation on 16 March 2000.  The plaintiff filed the following affirmations:

(a)   affirmation of Lee Pui Shan Wendy dated 21 March 2000 (with Exhibits “WL-4” and “WL-5” attached);

(b)  3^rd affirmation of Chiu Sin Chung dated 21 March 2000;

(c)  affirmation of Chu Wing Fai dated 21 March 2000.

12. In their affirmation, the Appellants stated that, between January and early February 1999, the parties to the action reached the following new agreement in relation to the repayment of the loan and interest payable by the Appellants:

“… new contract … reached an agreement on the method of repayment within one year: ‘One month’s interest is to be paid every three months.  Repayment method is to be further negotiated after payment of two instalments.’  In the middle of February [the plaintiff] informed … as a result of negotiations, a contract was prepared (the contents are all in English except for the space designated for signature where there are remarks in Chinese), requesting that the contract be signed as soon as possible.”

13. The Appellants contended that although they had paid the instalments in accordance with the new agreement, the plaintiff still complained repeatedly that they defaulted in making repayments.  The Appellants took the view that they had punctually made repayments according to the agreement, and so the plaintiff’s action against them was unjustified.

14. The gist of the affirmations made by Mr. Chu and Mr. Chiu is as follows:-

(a)   Lee Wah Company (i.e. the 2^nd defendant Mr. Hoy Seng Sui) had had credit dealings with the plaintiff since 1990.  Mr. Hoy mortgaged two properties to the plaintiff in 1990 and 1995 respectively as security for credit facilities;

(b)  In December 1998, Lee Wah Company wrote to the plaintiff stating that the company was in capital liquidity difficulty and requesting the plaintiff to allow the company to postpone the monthly instalment payment and other repayments for half a year, with effect from December 1998 (see Exhibit “Chu-1” for details);

(c)  Between January and February 1999, the plaintiff had numerous negotiations with Lee Wah Company.  In the end, the plaintiff agreed to extend repayment of part of the loan for half a year, and a review would be conducted thereafter.  Within that half-year period, Lee Wah Company must repay the interest of the fixed loans.  Although the repayment was scheduled to be made on the 15th of each month, the bank allowed Lee Wah Company to repay one instalment for every three instalment periods (see Exhibits “WL-3” and “WL-5” for details);

(d)  In the mortgage document that the Appellants signed back in 1990, the clause governing the obligation to make repayment stated that the Appellants had to “repay on demand”, and therefore the plaintiff was fully entitled to request the Appellants to repay the loan in full after the due date;

(e)   As at 15 September 1999, Lee Wah Company had not repaid the interest of the second instalment, and so the plaintiff demanded Lee Wah Company to repay all outstanding loans immediately.

15. Having heard the submissions of both parties, I am of the view that there was in fact no dispute between the parties on the key issue, because even if what the Appellants said was true, the new agreement reached between January and February 1999:

(a)   was merely of the nature of granting a grace period;

(b)  only involved a period of 6 months; and

(c)  provided that, after the expiry of that period, both parties had to re-negotiate the Appellants’ repayment schedule.

16. The parties agreed that the new agreement was signed on 28 February 1999.  According to the document, the half-year period was to expire on 3 September 1999.  Therefore, after this date, if both parties:

(1)   did not conduct further negotiations; or

(2)  conducted negotiations but to no avail,

then the new agreement between the parties would become null and void upon expiration, in which case the Appellants’ obligation to make repayment should be governed once again by the relevant clauses of the mortgage agreement.  The affirmations and exhibits which the plaintiff filed show (and the Appellants did not object to this) that the loan ought to be repaid in full immediately.

17. For the above reasons, I am of the view that the Appellants do not have any arguable defence.  I am also of the view that, in light of the matters which were mentioned before and to which the Appellants agreed (see p. 2 of the Judgment for details), the Appellants ought to have known the general contents of the important documents in this action.

18. In my view, therefore, there are sufficient reasons for disposing of the need to translate the relevant documents into Chinese so that resources will not be wasted.  Hence, I concur with the order made by the Registrar on 9 February 2000 and dismiss this appeal.

19. Furthermore, pursuant to the provision on costs order nisi under Order 42 Rule 5B(6) of the Rules of the High Court, I order that the Appellants do pay the plaintiff costs of this appeal.