HKSAR v. KONG LAI WAH

CACC 91/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 91 OF 2008

(ON APPEAL FROM DCCC NO. 22 OF 2007)

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REASONS FOR DECISION

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Hon Tang VP (giving the reasons for decision of the Court):

1.  The 2^nd applicant was convicted after a trial in Chinese.  By letter dated 8 July 2008, Messrs Howell & Co. informed the Registrar that Mr. Martin Lee, SC, who has been instructed to appear on behalf of the 2^nd applicant wished:

“… to address the Court of Appeal in English, but will read the Transcript and all the Chinese documents in Chinese.”

2.  The letter went on to say:

“Our attention has been drawn to the judgment of the Court of Appeal in HKSAR v Wan Chiu Ying (Decision in Chinese, CACC521/1999), where the trial below was conducted in Chinese and the Notice of Appeal was also in Chinese. The Applicant's counsel applied in writing for the appeal to be heard in English as she would be citing relevant authorities in English. In rejecting the application, the Court of Appeal (Leong JA and M. Wong JA) held that:

a.       If the appeal was set down in Chinese, unless there are special reasons, the appeal will definitely be conducted also in Chinese. No special reasons existed in that case.

b.      Even if the appeal is set down before bilingual judges, it does not mean that the appeal can be conducted in English.

c.       In order for this direction to be clear, the Court will inform Listing officers that in the future, when listing cases in Chinese, it shall be specified that the case will be heard in Chinese.

d.      It was held, in the case of HKSAR v. Lee Shun On that if the trial was conducted in Chinese, and all the documentary exhibits, evidence, submissions, notice of applications etc. are in Chinese, the court will not use up a huge amount of manpower, resources and government money to provide translations in order to provide for counsel who can only understand English to represent the Applicants on Appeal.”

3.  On 27 October 2008, we heard submissions from Mr Lee as well as Mr Zervos, the Deputy Director of Public Prosecution.

4.  At the end of the hearing, the court informed the parties that counsel for the 2^nd applicant may address the court in either or both of the official languages at the hearing of the appeal, and that the 2^nd applicant may file the perfected grounds of appeal in English within 7 days of the hearing.

5.  The matter is straightforward and is governed by section 5 of the Official Languages Ordinance, Cap. 5 which provides:

“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. 

(2)   The decision of a judge, magistrate or other judicial officer under subsection (1) is final.

(3)   Notwithstanding subsection (1), a party to or a witness in any proceedings or a part of any proceedings may-

(a)   use either or both of the official languages; and

(b)  address the court or testify in any language.

(4)   Notwithstanding subsection (1), a legal representative in any proceedings or a part of any proceedings may use either or both of the official languages.

(5)   The Chief Justice may make rules and issue practice directions to regulate the use of the official languages in the courts.”

6.  The language of section 5 is plain and clear.  The court may use either or both languages in any proceedings or a part of any proceedings before him as it thinks fit, and its decision is final.  However, a legal representative in any proceedings or a part of a proceeding may use either or both of the official languages.

7.  As for the hearing of criminal appeals, the Criminal Appeal Rules, Cap. 221A provide:

“2A.  Use of language in appeal

(1)     The court may use either or both of the official languages in any appeal or a part of an appeal before it as it considers appropriate for the just and expeditious disposal of the appeal.

(2)     The decision of the court under paragraph (1) is final.

(3)     A party to or a witness in any appeal or a part of an appeal before the court may-

(a)  use either or both of the official languages; and

(b)  address the court or testify in any language.

(4)     A legal representative in an appeal or a part of an appeal before the court may use either or both of the official languages.

(5)     Documents filed in an appeal or served on a party to an appeal may be in either official language.

(6)     A party, other than the Secretary for Justice, served with a document relating to an appeal in an official language with which he is not familiar may within 3 days of being served request in writing the Secretary for Justice to provide a translation of the document into the other official language. 

(7)     The Secretary for Justice shall provide a translation as soon as practicable. 

(8)     The time for compliance with any rule or order requiring the taking of the next step in an appeal within a particular period shall start to run, if a request in writing is served under paragraph (6), only after the receipt of a translation or as ordered by the court under this rule.

(9)     The official record of an appeal shall be kept in the official language or official languages as the court hearing the appeal may direct.

(10)   The transcript of the appeal shall be prepared in the official language that the appeal court directs.”

8.  No elaboration is needed.

9.  Mr Martin Lee has referred to the Guidelines for Judges and Judicial Officers issued by the Chief Judge after consultation with the Chief Justice dated 24 January 1998 (“the Guidelines”), concerning the “Use of Chinese in Court Proceedings”.  The text of the Guidelines can be found in Hong Kong Civil Procedures 2009, Vol. 2, at P2/3/5. 

10.  It is sufficient to refer to the following:

    “Choice of language  -  1.  It must always be borne in mind that an accused, a litigant and a witness has the right to use whatever language or dialect he wishes in any court hearing with the assistance of interpretation service, if and when this is required. Similarly, a lawyer, whether counsel or solicitor, also has the right to use either Chinese or English in representing his client. Under no circumstance should a judge. or judicial officer pressurise or encourage or be seen to pressurise or encourage any person to use a language other than the one that person chooses.

    Factors to be considered  -  2.  A judge or judicial officer may use either Chinese or English in conducting any hearing to which the· Official Languages Ordinance (Cap. 5) extends. In deciding which one of the official languages is to be used by him, the paramount consideration is the just and expeditious disposal of the cause or matter before him, having regard to all the circumstances of the case. The factors which may be taken into consideration include:

(1)     the language ability of the accused or litigants;

(2)     the language in which the witnesses will testify;

(3)     the wishes of the accused or litigants; .

(4)     the right of the accused or litigants to instruct a lawyer of his or their choice;

(5)     the language ability of the lawyers representing the accused or litigants;

(6)     the factual issues in dispute; .

(7)     the legal issues in dispute;

(8)     the volume of documents which may be required to be translated into the other official language; and

(9)     the language ability of the judge or judicial officer himself.

  Appropriate cases to use Chinese  -  3.  In normal circumstances, the use of Chinese would be considered appropriate if the following factors are present:

(1)     in criminal case, all the accused and the prosecution agree or have no objection to have the hearing conducted in Chinese; .

(2)     in a civil case, all parties agree or have no objection to have the hearing conducted in Chinese;

(3)     all the lawyers agree or have no objection to have the hearing conducted in Chinese;

(4)     all or most of the witnesses will be testifying in Chinese; .

(5)     all or most of the documents are in Chinese or there is not much documentation involved in the case; and

(6)     there is little or no difficult issue of law involved or both the lawyers and the judge or judicial officer feel that the legal issues they have to deal with do not present any difficulty to them.”

11.  Again, the language is so clear that no elaboration or gloss should be attempted.

12.  In the skeleton’s submission prepared by Mr Lee and his juniors, Mr Chase Pun and Mr Joseph Lee, the court was invited to direct that:

“(5)   the Reasons for Verdict and Reasons for Sentence be translated into English by the Judiciary;”

13.  Quite rightly Mr Lee has not insisted that these documents should be translated.  The translation of documents is governed by Rule 63(4) of the Criminal Appeal Rules which is self-explanatory:

“(4)   The Registrar may, and on the direction of a judge shall, provide a translation of the transcript and copies of any documents or exhibits in the official language that a party interested may request and the party interested must pay the cost of translation, if any, which cost is a cost in the cause.”

14.  We wish to say that although the parties may use either or both of the official languages, their choice of language, which may or may not be the same, cannot bind the court.  The court is entitled to decide which one or more of the official languages is to be used by the court.  The factors to be considered and the appropriate cases for the use of Chinese have been indicated in the Guidelines.  Practitioners are advised to refer to them for guidance. 

15.  In this context, we wish to repeat what Hartmann J (as he then was) said in Re Cheng Kai-nam Gary [2002-04] 10 HKPLR 89 that

“19.   … In my judgment, the constitutional right of a person to use the Chinese language in a court of law in Hong Kong means no more than the right of that person to employ that language, that is, to utilize it, for the purpose of forwarding or protecting his interests. That right to employ or utilize the language does not imply a reciprocal obligation on the part of the court to speak and read that language. It is sufficient if processes, such as the employment of interpreters or translators, exist to facilitate the court comprehending what is said or written.”

16.  It is clear that in HKSAR v Wan Chiu Ying, unreported, CACC 521/1999, dated 27 January, 2000, and HKSAR v Lee Shun On, unreported, CACC 643/1998, dated 22 June 1999, the applications before the court was for “the hearing of the appeal to be conducted in English” per Leong JA (as he then was) at page 2 in Wan Chiu Ying, and Woo J (as he then was) at page 2 in Lee Shun On.  The Court decided in those cases that the appeal should be conducted in Chinese.  Insofar as those cases could be read as indicating that legal representatives might not be allowed to choose either or both official languages at the hearing of the appeal, they cannot stand with section 5 and should be disregarded.