FU SHU WAH & FU SHU WING in their personal capacities as beneficiaries AND in their capacities as the Administrators of THE ESTATE of HO SUNG LAI（何崇禮）, DECEASED v. FU MEI YUK KEENY

[English Translation - 英譯本]

HCA 2791/2015

[2019] HKCFI 510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 2791 OF 2015

REASONS FOR DECISION

1.  The plaintiffs, pursuant to Order 58 of the Rules of the High Court, Cap. 4A, Laws of Hong Kong, brought this appeal to a judge of the Court of First Instance against para 12 of the order dated 5 December 2018 made by the Master (the plaintiffs having clarified the ambiguities in the Notice of Appeal during this appeal hearing). At the conclusion of the hearing, I allowed the appeal. These are my Reasons for Decision.

2.  Para 12 of the order dated 5 December 2018 provides that:

“In the event of the plaintiffs filing and serving any document written in English, the plaintiffs shall at the same time provide a translation in the Chinese language.”

As confirmed by the defendant at this appeal, the word “document” mentioned above means any document to be filed and served by the plaintiffs in this action (rather than documents previously filed and served).

3.  The background of the litigation leading to this appeal can be summarized as follows:

4.  According to the pleadings filed by the parties:

(a)  The two plaintiffs and the defendant are elder brothers and younger sister;

(b)  The parents of the parties were originally co-owners of the property in question (a residential unit situated in Fanling) who passed away in 2003 and 2011 respectively;

(c)  By the time the mother of the parties passed away, she  was already the sole owner of the property in question.  As she died intestate, her estate ought to be dealt with according to the rules of intestacy;

(d)  Up until now, the defendant has been living in the property on her own.

5.  The plaintiffs commenced this action in 2015 in their capacities as the administrators of the estate of their mother.  They claimed that the defendant was in breach of the terms of the settlement agreement reached by the various siblings in February 2014 in that she failed to surrender the property in question within 3 months of the settlement agreement being made.

6.  The defendant, in the Amended Defence and Counterclaim, stated that:

(1)  She could not understand the contents of the settlement agreement due to a mood disorder;

(2)  Thus, the settlement agreement was null and void;

(3)  Furthermore, between July and August 2015, through their respective legal representatives, the parties reached another agreement by way of correspondence to cancel the February 2014 settlement agreement. 

7.  The defendant previously took out a summons on 6 November 2018, seeking an order that:

“leave be granted for all future documents to be exchanged between the parties in this action to be written in Chinese, which shall prevail” (para 1 of the summons)

The defendant, in her affidavit/affirmation in support of the application, also stated that English was not her mother tongue, and what was more, legal English increased the burden and stress on her, a mood disorder patient who needed to be on regular medication. 

8.  On 21 November 2018, a second Master dismissed that part of the application in the above summons after a hearing.

9.  So far as what was mentioned in paras 7 to 8 above is concerned, though the relief sought in the summons was not entirely the same as the order to which this appeal relates, both required the plaintiffs to provide documents written/translations in the Chinese language, and thus, by nature, there was in effect no distinction between the two.

10.  That said, I still assume that there was a difference between the order to which this appeal relates (as well as matters covered by the order) and the application mentioned in paras 7 to 8 above.  Therefore, it did not constitute res judicata.

11.  As the defendant was unrepresented, she did not furnish information as to the legal basis she asked for the order to which this appeal relates (para 2 above).  I agree with the observations by the plaintiffs that the defendant’s application should be made under:

(a)  the Official Languages Ordinance, Cap. 5 (particularly section 3 (and section 5));

(b)  the High Court Civil Procedure (Use of Language) Rules, Cap. 5C (particularly section 5).

Besides, it was also possible that the defendant made the application under the Official Languages (Translation) Rules, Cap. 5B (particularly section 1).

12.  In brief, a request under rule 5 of Cap. 5C shall be made:

(1)  in writing within 3 days after the service of the relevant document (rule 5(2) thereof);

(2)  where the request is reasonable (rule 5(5)(a) thereof). 

13.  And a request under rule 1 of Cap. 5B shall be made in relation to “document … that is to be admitted in evidence” (rule 1(1) or (2) thereof).  Rule 1 of Cap. 5B also provides that the court may at any time dispense with the need for a translation of a document (rule 1(3) thereof).

14.  In Po Sang Bank Ltd v. Hoy Seng Sui and others [1995 - 2000] HKCLRT 360, I pointed out that:

(a)  The provision mentioned in para 13 above confers upon the court a discretionary power to dispense with the need for a translation of a document;

(b)  In exercising this discretion, the court should take into account, inter alia, the following matters:

(1) 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;

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

(para 7 thereof)

15.  I also pointed out in the above judgment that in considering whether both parties or one of the parties to the action will be prejudiced (para 14(b)(1) above), the court should take into account, inter alia, the following matters:

(a)  the language proficiency of either or both of the parties;

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

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

(d)  the importance of those documents in the proceedings;

(e)  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.

(para 7 thereof)

16.  The order to which this appeal relates (para 2 above) was not:

(1)  in relation to the documents already served;

(2)  made after the defendant had made the request in writing.

(Cf. para 12 above) Therefore, on this point alone, that order does not have the legal basis conferred by Cap. 5C.

17.  The translations that the plaintiffs were required to provide by the order to which this appeal relates also lie outside the scope of “document … that is to be admitted in evidence” stated in Cap. 5B (para 13 above).  Therefore, on this point alone, the order to which this appeal relates also does not have the legal basis conferred by Cap. 5B.

18.  Rule 5(5)(a) of Cap. 5C provides that the relevant request for translation has to be reasonable (para 12(2) above).  Besides what was mentioned in paras 16 and 17 above, in my view, what the court is vested with under both the provisions of rule 5(5)(a) of Cap. 5C governing the determination of whether the request is reasonable and the authority to dispense with the need for a translation conferred by rule 1(1) or (2) of Cap. 5B (para 13 above) is, by nature, a discretionary power exercisable by the court.

19.  I am also of the view that matters that the court needs to take into account in exercising the power conferred by rule 5(5)(a) of Cap. 5C are similar to those it needs to take into account in exercising the power conferred by rule 1(1) or (2) of Cap. 5B (see paras 14(b) and 15 above).  

20.  Since the defendant did not file any affidavit/affirmation in support of the application to which this appeal relates, I became aware of the following information after making enquiries of her at this appeal hearing:

(a)  The defendant received education up to HKCEE level in Hong Kong;

(b)  Thereafter the defendant went to France where she did and completed a course in design equivalent to a degree course offered by a university in Hong Kong;

(c)  The defendant, therefore, had attained (or should attain) a certain level of proficiency in Chinese, English and French;

(d)  What was mentioned in para (c) above can be confirmed by the Amended Defence and Counterclaim which was written and amended by the defendant herself (and the wording was fine-tuned with the assistance of free legal advice provided by a lawyer (the defendant did not specify whether it was provided by the “Resource Centre for Unrepresented Litigants” or the “Free Legal Advice Scheme”)).

(I would mention in passing that before making the order to which this appeal relates (para 2 above), the Master did not make enquiries about matters referred to in paras 14 and 15 above.)

21.  Although the defendant claimed that she had been suffering from a mood disorder, she had no difficulty communicating with others in the course of this appeal hearing.  Furthermore, neither did she provide any medical record nor information in relation to her mood disorder.

22.  In the light of the various points mentioned in paras 20 to 21 above, I am convinced that (besides what was mentioned in paras 16 and 17 above), the defendant’s request is not reasonable (rule 5(5)(a) of Cap. 5C).

23.  Since no date, as yet, has been fixed for trial in this action, it is not known which are “documents … that are to be admitted in evidence” among the documents already filed by the plaintiffs.  Furthermore, it is also unknown what the actual number of documents involved is. Thus, there is no need for me to consider the discretionary power conferred by rule 1(1) or (2) of Cap. 5B in this appeal.