BOTH GOOD CO. v. CHAN TING WAI t/a WING TAI INTERNATIONAL CO.

-----------------

_________________________

REASONS FOR JUDGMENT

_________________________

Clough, J. :

1. On the 9th July 1986 we dismissed this appeal with costs and indicated that we would deliver our reasons later.

2. CHAN Ting-wai, who was the Defendant in an action in the District Court for damages for non delivery of goods sold by him to the Plaintiff, appealed against the order made against him by Judge Wilson on the 5th March 1986 for the payment to the Plaintiff of US$5,420.00, or its equivalent in Hong Kong currency, with interest. The Defendant sought to have the judge's order set aside and an order for a re-trial of the action.

3. The Defendant's first ground of appeal was that he had been "unable to present his case fully and properly to the Court and to challenge the Plaintiff's case as he did not in fact understand and follow the proceedings at the trial". This, he alleged, occurred because he was an unrepresented litigant, speaking and understanding Mandarin, but very little Cantonese and no English, and because he was not provided with a proper interpreter at the trial.

4. His second ground of appeal, which stands or falls with the first ground, was that he had a good defence to the Plaintiff's claim and that if proper interpretation had been arranged, all the evidence in support of his defence would have been put before the court.

5. On the hearing of the appeal, Mr. Wong, counsel for the Defendant, moved pursuant to Order 59 rule 10(2) for the admission of affirmations made by the Defendant and his employee Miss Wong respectively. The Defendant's affirmation was admitted, with the consent of Mr. Chung, counsel for the Plaintiff, on the ground that it was essential to substantiate the allegations which provided the basis for the Defendant's appeal. We refused to admit the affirmation of Miss Wong since this only contained evidence, relevant to the issues between the parties in the action, which was available to the Defendant at the time of the trial.

6. In addition we admitted, for the purposes of the appeal, an affirmation made by Mr. Raymond Leung, the Plaintiff's solicitor, who had represented her at the trial. That affirmation contained evidence refuting the Defendant's allegations regarding the conduct of the trial. We also considered the written comments furnished to this court by the trial judge on the allegations contained in the Defendant's affirmation.

7. We emphasise that we did not enquire into the merits of the Defendant's defence when considering his appeal. It was not necessary or desirable to do so because, clearly, if a litigant who does not understand the language of a court in Hong Kong or the language of a relevant witness, is denied the assistance of a competent interpreter to enable him to understand the proceedings, to give his evidence, to present his case and to deal with the case against him in a language which he speaks and understands, then, unless the litigant has knowingly waived his rights, there has been a denial of natural justice and the litigant will be entitled to relief: In the Estate of Find, decd. (No. 2) [1965] 1 WLR 1336 per Scarman, J. at p.1339E-H.

8. According to the Defendant's affirmation, before the trial began he had asked the court clerk to arrange for the attendance of an interpreter for him; but the interpreter did not arrive until around 11 a.m. although the trial had started at around 10:40 a.m. He complained that he was unable to understand the evidence given at the trial by Miss Ho, the proprietor of the Plaintiff firm, and the sole witness for the Plaintiff. He affirmed that she spoke sometimes in Cantonese and sometimes in English, that the interpreter did not interpret her evidence to him and that he was therefore unable to ask any question regarding her evidence or to challenge it.

9. The judge, who mentioned that he had negligible Cantonese and no Mandarin, commented that these allegations were emphatically denied by the interpreter concerned. The judge observed that the Defendant's predicament was appreciated from the start and that arrangements were made for a special Mandarin interpreter, as well as for the usual Cantonese interpreter. He was certain that the trial, which was delayed because of the need to obtain the Mandarin interpreter, did not start until that interpreter was present. He could not remember Miss Ho speaking in English but observed that it would not be uncommon for a witness in a commercial type of case to use an English word for a technical or commercial term. If that happened, he would expect the interpreter to translate the English word into the required dialect. The Defendant did challenge Miss Ho's evidence in what appeared to him to be an effective manner.

10. Mr. Leung, the Plaintiff's solicitor, who is not a Mandarin speaker, affirmed that throughout the opening of the plaintiff's case and when Miss Ho was giving her evidence the interpreter was sitting next to the Defendant at the lawyer's table. Mr. Leung's evidence was that to the best of his knowledge and belief the interpreter had translated the proceedings to the Defendant in Mandarin throughout the Plaintiff's case.

11. The Defendant further alleged that, when he himself gave evidence in Mandarin at the trial, the interpreter seemed to be unable to understand fully what he was saying and to be only interpreting those parts of the evidence which the interpreter could understand but not all his evidence. He claimed that he had difficulty in understanding the interpreter as the latter spoke to him partly in Mandarin and partly in Cantonese. He could not, therefore, he alleged, present his case fully and properly to the court.

12. The Defendant went on to affirm that, when he found out what was recorded in the trial judge's notes of proceedings, he discovered that some of his evidence had been misinterpreted and that some had not been interpreted or recorded in the judge's notes. He set out at length what he claimed to have asked Miss Ho during cross-examination, what he claimed to have said to correct Miss Ho when he gave evidence, and what he claimed to have said when cross-examined by Mr. Leung. He concluded his affirmation by asserting that, if Miss Ho's allegations had been interpreted to him, he would have been able to challenge her case and would have asked his employee Miss Wong to testify for him.

13. The judge's comment on these allegations was that the Defendant had himself caused difficulty by failing to appreciate that he should pause from time to time for the two interpreters to catch up with him. He gave the Defendant every opportunity to call witnesses but the Defendant did not want to do so.

14. Mr. Leung affirmed that, when the Defendant gave evidence at the trial, the interpreter stood next to him and translated his evidence into English and the questions put by Mr. Leung and the court into Mandarin. To the best of his knowledge, the Defendant raised no objections to the interpretation at any time during the proceedings.

15. For the Defendant, Mr. Wong, relying on his client's evidence, contended that the alleged inability of the interpreter to communicate with the Defendant produced the same situation as if there had been no interpreter at all. He also relied on the alleged partial interpretation to the Defendant of Miss Ho's evidence and further contended that the Defendant had been unable to cross-examine Miss Ho effectively by reason of the inadequate interpretation of the Mandarin interpreter, which had also resulted in his failure to realise that it was necessary to call Miss Ho.

16. He relied on the dictum of Huggins, J. in Reg. v. NGAI Kam-chung [1965] HKLR 941 at p.949, to the effect that an interpreter is the "mouth and ears of the Court" but that (1) where he suspects that the witness does not understand the dialect being used it is his duty to inform the judge that the language of the witness indicates possible unfamiliarity with the dialect; and (2) where an answer is given which the interpreter finds untranslatable it may be proper for him to seek clarification. Mr. Wong contended that it followed from these principles that the onus had been on the court to ensure that the Defendant's evidence was fully and properly translated; otherwise the Defendant would have been precluded from presenting his case properly.

17. Clearly, it is the duty of an interpreter to inform the court if there is a lack of understanding between him and a witness or a party. The crucial question in this appeal was whether the Defendant had established that there had in fact been such a material deficiency at the trial. He claimed there had been; the interpreter denied the allegation. The judge and the Plaintiff's solicitor, who are not Mandarin speakers, could only say that, to all outward appearances, the interpreter carried out his duties properly and that there was no complaint from the Defendant at the trial.

18. In our judgment, the Defendant failed to establish his allegations. Our conclusion was reached by testing the Defendant's allegations against the content of the pleadings and the record.

The pleadings

19. The Plaintiff's claim was for (US)$5,420 representing her loss on the abortive sub-sale of 27,100 kg. of Hemp Degummed. The Plaintiff claimed that the Defendant had agreed orally to sell this to her for the sum of (US)$47,425 and that she had sold it on for (US)$52,845, with the Defendant's knowledge that it was required for resale.

20. In its Particulars of Claim, the Plaintiff pleaded that it was agreed that the sale was to take place on the 29th October 1985, when the Plaintiff would pay the purchase price in exchange for a delivery order for the goods. On the 29th October 1985, the Defendant issued an invoice for the goods and, when paid for them by the Plaintiff with a cheque for (HK)$368,942.79, handed Miss Ho a delivery order to enable her to obtain delivery from the godown.

21. When Miss Ho sought to obtain delivery of the goods, on the 30th October 1985, from the godown she was informed that the delivery order had been cancelled. Her subsequent demands for delivery were refused by the Defendant, so that she was obliged to cancel the sub-sale and lose her expected profit of (US)$5,420.

22. Although the Defendant was not legally represented and does not speak or understand English, he filed a layman's Defence in English which was sufficient to define the issues between the parties.

23. He pleaded that on the 28th October 1985 it was agreed that, on the 29th October, the Defendant would give the Plaintiff a delivery order, dated the 30th October 1985, in exchange for the Plaintiff's banker's draft for the invoice value of the goods. On the 29th October 1985 the Plaintiff came to his office to complete the transaction and "took a chance for cheating" Miss Wong, who was his employee, by getting her to "open" the delivery order while the Defendant was in a meeting.

24. Having obtained the delivery order, the Plaintiff paid for the goods with a cheque and pressed for delivery before payment. This was, the Defendant pleaded, a breach of the agreement, and so, to protect his firm's interest, he cancelled the delivery order on the same day and notified the Plaintiff.

25. The issue must therefore have been apparent to the trial judge.

The record

26. The judge recorded that Mr. Leung opened the case for the Plaintiff on the footing that there was nothing in dispute between the parties except the manner of payment for the goods, and then called Miss Ho as the Plaintiff's only witness. She gave her evidence in Cantonese, to the effect stated in the Particulars of Claim. This evidence, the Defendant now claims, was not properly interpreted to him.

27. However, the record does not indicate that he complained about this at the end of Miss Ho's evidence or at any time during the trial. Moreover, it shows that he cross-examined Miss Ho. He appears to have begun, as litigants in person commonly do, by making a statement. He is recorded as putting to Miss Ho, who made a denial on each occasion, that the agreement on the 26th October was that payment was to be in cash and that the condition agreed on the 28th October was that payment was to be by bank cashier's order. It is difficult to see how the record of this short but pertinent cross-examination came to be recorded if there was no proper interpretation.

28. The judge recorded that when the Defendant was about to present his case the judge had explained his rights to him and that at the conclusion of the Defendant's evidence, the Defendant was calling no witnesses. The judge's note of the Defendant's evidence begins "I want to correct plaintiff", followed by evidence which contradicts the Plaintiff's evidence in some detail on the essential matters in the case.

29. His defence, as pleaded, was therefore clearly set out in his evidence in chief. Furthermore, under cross-examination he re-affirmed that Miss Wong had been cheated by the Plaintiff and said that, whilst he had signed the invoice relating to the goods, it was not he, but possibly Miss Wong, who had inserted the reference in that document to the number of the Plaintiff's cheque opposite "Payment terms".

30. We find it impossible to accept that the Defendant's evidence, wholly consistent with the allegations in his Defence, could have been recorded if the Defendant had not been receiving proper assistance from the interpreter. It may be, as sometimes happens, particularly with a fast speaking witness, that the interpreter was not able to interpret every word uttered by the Defendant. However, after making allowance for the fact that under rule 46 of the District Court Civil Procedure (General) Rules the trial judge was only obliged to record the substance of the evidence appearing to him to be relevant, we are not satisfied that the interpreter was in any way at fault.

31. Whether or not the decision of the trial judge was made contrary to the weight of evidence, the only issue arising in this appeal is the alleged breach of duty by the Mandarin interpreter at the trial.

32. The record of the cross-examination of the Plaintiff by the Defendant, and of the Defendant's own evidence in chief and under cross-examination, is wholly consistent with there having been proper interpretation available to the Defendant at the trial. We were accordingly not satisfied that the failure of the Defendant to call Miss Wong at the trial was due to any breach of duty by the Mandarin interpreter or the trial judge. Furthermore, the Defendant, who appears to be an intelligent businessman, gave no explanation, in his evidence in support of his appeal, of his failure to complain to the trial judge that he was unable to conduct his case due to alleged lack of proper interpretation.

33. The Defendant clearly feels aggrieved by the decision of the judge. This unhappily is often the case where a judge's decision turns on the credibility of the parties. However there is no appeal based on alleged error on the part of the judge in arriving at his decision. As the Defendant had failed to substantiate his ground of appeal based on alleged breach of duty by the Mandarin interpreter we dismissed his appeal.