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HCCT000009/1988
1988 No. Con-9
HEADNOTE
Practice and Procedure - Defence in Chinese - Official Languages Ordinance - Jurisdiction of Court.
1988, No. Con-9
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
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BETWEEN
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GAMMON BUILDING CONSTRUCTION LIMITED |
Plaintiff |
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AND
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CHO HING YIU trading as CHO YIU KEE CONSTRUCTION & WOODEN WORKS |
Defendant |
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Coram: The Hon. Mr. Justice Sears in Chambers
Date of Hearing: 14 September 1988
Date of Delivery of Reasons: 15 September 1988
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JUDGMENT
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1. Last night after normal court hours I heard an unusual application by Mr. Cho Hing Yiu trading as Cho Yiu Kee Construction & Wooden Works. I consider that I should give reasons for my ruling in open court.
2. The Plaintiff in this case is a well-known company, Gammon Building Construction Company and they are suing Mr. Cho Hing Yiu for approximately HK$3.5 million. The claim as particularised at the moment is $3.38 but no doubt additional sums of money will be claimed.
3. Mr. Cho Hing Yiu is a subcontractor, and he wishes to defend the case himself. The Plaintiffs have issued a Statement of Claim which raises some matters of complexity, and the Defendant wishes to put his defence in Chinese and not, as is normal, in English. Now this appears to be a rare application and I cannot discover whether it has been made before in the High court. In the Official Languages Ordinance Cap. 5, Section 5(2)(b) says
"Proceedings in the High Court shall be conducted in the English Language."
There is no definition of the word "proceedings" but this must mean, in my judgment, all matters where proceedings are instituted in that Court i.e. pleadings, interlocutory hearings, as well as the trial itself. It is therefore standard practice for everything to be in English. Section 5(3) says
"Notwithstanding Sub-Sections (1) & (2), any party or witness in proceedings in any court may use either the English language or the Chinese language, or such other language as the court may permit."
This wording appears to indicate that discretion is given to permit a party or witness to use Chinese language when giving evidence. It is therefore always permitted for a Chinese witness to give evidence in Chinese. Nevertheless, the same word "proceedings" is used as in Section 5(2) and as far as civil proceedings are concerned, a Court does have a discretion to permit the Chinese language to be used in any part of the conduct of those proceedings. Furthermore, S 19 of the Interpretation Ordinance says
"An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."
In my judgment, the true intent of Sectiion 5(3) is to give the Court a discretion to permit the Chinese language to be used at any stage of the proceedings when the circumstances so warrant it.
4. It appears to me that in this day and age, where the Chinese language is of greater significance in our judicial process, it would be thoroughly unjust to prevent a Chinese citizen putting forward his defence in Chinese. Although, in important cases, one expects everything to be done in English, in my judgment I do have power to permit in appropriate circumstances the Chinese language to be utilized in a pleading. I can see nothing unjust in that, because the Court itself provides official interpreters, and as it can be interpreted, the Plaintiffs, although they will be getting a Chinese document, will know the nature of the Defence. The Judge also will be told in English what the Defence is.
5. Although therefore Section 5(3) of the Ordinance appears to indicate that judges only have power to permit oral evidence to be given in Chinese, in my judgment the Court has wider powers to permit in appropriate circumstances pleadings to be in Chinese. I am not encouraging the departure from the normal use of English, but when a person does not have a solicitor acting for him, I can see no reason why he should be forced to expend money to have his case drafted in English. I therefore last night gave leave to Mr. Cho Hing Yiu for his defence to be filed in Chinese and if he wishes to serve other documents or other pleadings, I see no reason also why that should not be done in Chinese. He will of course have to have translated to him the English pleadings served by the plaintiffs.
6. As this case is also in the Construction List, of which I am the Judge, I can dispose of the action in any manner I consider appropriate. It is just, in the circumstances of this case for an ordinary citizen to have not only his evidence given in Chinese, but also his Defence. I therefore exercised my discretion in favour of the application.
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(R. A. W. Sears)
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Judge of the High Court
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