RE CHENG KAI NAM, GARY

HCAL3568/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 3568 OF 2001

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J U D G M E N T

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Introduction

1. The applicant in this matter seeks leave to apply for judicial review. The application has been brought as a matter of urgency because it concerns a criminal trial which is due to commence in the District Court this morning, the applicant being the accused in that trial.

2. The trial has been set down for hearing before a monolingual judge, that is, a judge who does not speak Cantonese. The Official Languages Ordinance, Chapter 5, provides for two official languages in our courts. In this regard, sections 3(1) and (2) of the ordinance reads :

" (1) The English and Chinese languages are declared to be the official languages of Hong Kong for the purposes of communication between the Government or any public officer and members of the public and for court proceedings.

(2) The official languages possess equal status and, subject to the provisions of this Ordinance, enjoy equality of use for the purposes set out in subsection (1)."

3. Assuming that Chinese means, in Hong Kong, the language of the majority, namely Cantonese, as opposed to the other languages and/or dialects that fall under the description of 'Chinese', it means that our courts allow for two official languages in the spoken form : English and Cantonese.

4. The applicant's native tongue is Cantonese. He is conversant in English. However, at his trial, if he chooses to testify, he will do so in Cantonese. That being so, he wishes his testimony to be considered by a judge who also speaks Cantonese and not by a judge who must receive his testimony through an interpreter.

5. Why is that? As I comprehend it, it is the applicant's contention that language is more than a mechanical means of conveying meaning : language gives colour, subtlety and texture to that meaning. Interpretation, no matter how competent, cannot hope to capture the full dimensions of that colour, subtlety and texture. That being so, all interpretation is an exercise in diminishment.

6. I am told that at the applicant's trial the prosecution case will rely heavily on the evidence of one witness, a past associate of the applicant. Mr Lee, who appeared on behalf of the applicant, said that in substance the trial could end up being one man's word against another's. That being so, he said, credibility will be a matter of material concern and in the assessment of credibility the judge will have to look to the demeanour of the witnesses, one of those witnesses, if he elects to testify, being the applicant himself. But if the judge is not himself a Cantonese speaker, said Mr Lee, if he must rely on an interpreter, how will he be able accurately and fully to assess that demeanour? His ability to do so will be materially diminished by the interpretation because that interpretation, no matter how competent, will not be able to capture what I have earlier described as the colour, subtlety and texture of the language spoken by the witnesses. The applicant, as I understand the complaint, is concerned that this may tell to his disadvantage.

7. In an attempt to have his matter listed before a bilingual judge, that is, one who speaks both Cantonese and English, two applications were made by the applicant's legal representatives to the listing judge in the District Court, Judge Fung. The first application was made on 26 October, the second was made on 29 November, the day before the institution of these judicial review proceedings. In respect of both applications, the listing judge considered it appropriate that the applicant's trial should continue to be listed for hearing before a monolingual judge.

8. Although no respondent has been cited by name in the notice of application for leave to apply for judicial review, it is these two decisions which are challenged. More particularly, the following orders are sought :

(1) an order of certiorari to quash the two decisions of the listing judge;

(2) a declaration that the applicant is entitled to have his case heard by a judge who speaks Cantonese; and

(3) an order of prohibition restraining the District Court from proceeding with the applicant's trial pending the resolution of these judicial review proceedings unless that trial is set for hearing before a judge who speaks Cantonese.

9. The decisions of the listing judge are challenged on two bases. First, that the applicant enjoys a constitutional right to have his case determined by a judge who speaks Cantonese, the language which, if he testifies, he will speak at trial. Second, that the listing judge acted unlawfully when he refused the two applications in that his decisions were Wednesbury unreasonable.

10. Before moving to these two bases of challenge, it is to be remembered that the matter now before the Court is one in which leave only is being sought. That being so, the test to be applied is whether the material advanced in the application discloses matters which on further consideration might demonstrate an arguable case for the grant of the relief sought. If so, then leave must be granted and the trial scheduled to commence this morning in the District Court will have to be adjourned.

The constitutional issue

11. Despite the wording of section 3 of our domestic statute, the Official Languages Ordinance, that English and Chinese share 'equal status' in our courts, Mr Lee has submitted that since the resumption of sovereignty a new constitutional order has come into existence, one which recognizes the supremacy of the Chinese language over that of English. To this end, Mr Lee has referred to the wording of the Joint Declaration (JD reference 51) which reads :

" In addition to Chinese, English may also be used in organs of government and in the courts in the Hong Kong Special Administrative Region."

12. More importantly, Mr Lee has also made reference to Article 9 of the Basic Law, the syntax of its wording echoing the Joint Declaration. Article 9 reads :

" In addition to the Chinese language, English may also be used as an official language by the executive authorities, legislature and judiciary of the Hong Kong Special Administrative Region.

13. Article 9, said Mr Lee, makes it plain that Chinese is to be the primary official language of Hong Kong and of its judiciary. English, however, 'may also be used', an equally clear statement of its secondary role. As he expressed it, English is only a 'permitted' language.

14. From this basis, Mr Lee has submitted that a constitutional right to use Chinese in the courts of Hong Kong would be undermined if the right did not comprise two essential elements; first, the right to speak Cantonese and, second, the right to be understood by the courts in Cantonese without the intervention of an interpreter. I regret to say that while I have no difficulty in accepting the first essential element proposed by Mr Lee, I can find no basis whatsoever for accepting the second.

15. If Mr Lee is correct in his purposive interpretation of Article 9, it means that a person who uses Cantonese in our courts is entitled as a constitutional right to be understood directly in that language by the judge assigned to hear his matter. That may, if one accepts Mr Lee's submissions as to the ease with which alternate or deputy judges can be appointed, be capable of practical manifestation. But Article 9 also refers to the use of Chinese as an official language in our executive branches of government and the legislature. In respect of the legislature it must therefore follow that a member who, as a constitutional right, uses Chinese (Cantonese) is entitled, also as constitutional right, to be understood directly in that language by the other members to whom he speaks. That cannot be right. Article 67 of the Basic Law, for example, allows specifically for permanent residents of Hong Kong who are not of Chinese nationality to be elected as members of the Legislative Council. There is nothing, implied or otherwise, in the relevant articles, or in the Basic Law read as a whole, to suggest that those persons who are not of Chinese nationality must nevertheless speak a Chinese language.

16. As to the manner in which Article 9 is worded, instruments of constitution regularly speak to matters which define national or regional identity. In this regard, the Basic Law is no different. The Basic Law, while upholding the territorial integrity of the People's Republic of China, recognizes that Hong Kong has a special history. The Preamble to the Basic Law makes specific reference to this history and to Hong Kong's other 'realities' such as its capitalist system of commerce and its system of law. In this regard, paragraph 2 of the Preamble reads :

" Upholding national unity and territorial integrity, maintaining the prosperity and stability of Hong Kong, and taking account of its history and realities, the People's Republic of China has decided that upon China's resumption of the exercise of sovereignty over Hong Kong, a Hong Kong Special Administrative Region will be established in accordance with the provisions of Article 31 of the Constitution of the People's Republic of China, and that under the principle of 'one country, two systems', the socialist system and policies will not be practiced in Hong Kong. ...."

17. Accordingly, as a work of constitutional architecture, the Basic Law is built upon the foundations of Hong Kong's special history. Part of that history is its adoption of the common law, the root language of which is English. The common law was the law of Hong Kong upon the resumption of sovereignty and Article 81 of the Basic Law enshrines that system.

18. The Basic Law not only enshrines the common law but, in order to give continuing effect to that enshrinement, allows for the recruitment of judges from other common law jurisdictions, there being suggestion that those judges should speak a Chinese tongue. In this regard, Article 92 reads :

"Judges and other members of the judiciary of the Hong Kong Special Administrative Region shall be chosen on the basis of their judicial and professional qualities and may be recruited from other common law jurisdiction."

19. Accordingly, when Article 9 of the Basic Law is read in its broader context, even giving to it the most purposive interpretation, I can find no basis for making the quantum leap that Mr Lee would have me make, namely, to hold that the right to use the Chinese language in a court of law in Hong Kong, implies the right to be understood directly in that language by the court. 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.

20. In the course of his submissions, Mr Lee referred to the authority of R. v. Beaulac 173 D.L.R. (4th) 193 in which the Supreme Court of Canada considered the broad question of the interpretation of language rights under the Canadian Charter of Rights and Freedoms. In so doing, the court affirmed that language rights are a particular kind of right, distinct from the principles of fundamental justice, having a different origin and purpose. I concur.

21. If language rights are distinct from the principles of fundamental justice, it is not therefore a denial of the applicant's fundamental right to a fair trial to be denied a judge who speaks the official language that the applicant chooses to employ. The applicant's fundamental right to a fair trial is contained in Article 11 of the Bill of Rights. In respect of language, that article says only that in the determination of any criminal charge against him, a person shall be entitled to have the free assistance of an interpreter if he cannot understand or speak the language of the court. That is the minimum guarantee given.

22. Language rights, being distinct from a person's fundamental rights to a fair trial, can only be understood by having regard to their origin and purpose. As such, in my view, little is to be gained in looking at the manner in which language rights are protected in other constitutions. We must look to the Basic Law and why it is that English is preserved as an official language for our courts.

23. Mr Lee asked the rhetorical question : 'Can you imagine the reaction of an Italian tried in Rome by a judge who does not speak Italian?' But Hong Kong is not Rome. Its history is very different. As a consequence, language rights in our courts of law are different too. In passing, I stop only to observe that Hong Kong is not the only common law jurisdiction which preserves English as an official language of the courts even though the majority of the people are not native English speakers. On a day-to-day basis in those courts interpretation services must be used for those who speak the majority tongue.

24. As to the manner in which either or both of our official languages may be used in our courts of law, I am satisfied that section 5 of the Official Languages Ordinance is applicable and is in no way contrary to the provisions of the Basic Law. Sections 5(1) and (2) read :

" (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 section (1) is final.

Section 5 continues by saying :

(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."

The final subsection of section 5 reads :

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

25. I have not been informed of any such rules or practice directions applicable to criminal trials in the District Court.

26. Section 5 makes it plain that even though a judge before whom proceedings take place may determine to use one official language, his decision does not prohibit the parties to the proceedings or their legal representatives employing the other official language. No doubt, in the interests of efficient case judgment and, when applicable, in the general interests of justice, a judge who does not speak Cantonese may determine from time to time that a case is better heard by a judge who does speak Cantonese. But that, of course, will be a matter for the judge to determine, his decision being final.

The challenge to the listing judge's exercise of discretion

27. In these judicial review proceedings, the applicant seeks to challenge two decisions made by the listing judge in the District Court. The first decision was made on 26 October of this year. In the applicant's papers it is described as a decision refusing to list the applicant's trial before a bilingual judge so that a meaningful application could be made to that judge for the trial to be conducted in Cantonese. The second decision under challenge was made on 29 November and is described as a decision refusing to list the applicant's trial before a bilingual judge so that the applicant's evidence could be understood in Cantonese without the intervention of an interpreter.

28. As I understand it, both decisions are said to be Wednesbury unreasonable in that the listing judge in exercising his discretion, took into account irrelevant matters or failed to take into account matters that were relevant.

29. Assuming that the listing judge was exercising an administrative function subject to judicial review, what then was the nature of the discretion he was exercising?

30. The listing judge in the District Court has finite resources. I have received no evidence on the matter but it would be entirely artificial of me not to recognize that his essential function is to ensure that trials are listed before appropriate judges with the minimum of delay. The listing judge has a public duty to ensure that all of his judges are able to share in the case load. A variety of factors will influence the listing judge in deciding in any particular case when a matter is to be listed and who is appropriate to try the matter. The spectrum of factors will range from the purely domestic, matters of availability and the like, to the more complex, for example, matters of expertise in particular areas of criminal jurisprudence.

31. As I understand it, there are no rules or practice directions which set priorities for the listing judge. He therefore employs a broad discretion to ensure, in the public interest, that all his judges - bilingual and monolingual - are able to hear trials and that matters are listed as expeditiously as justice allows.

32. It must be remembered that it is not for individual litigants in civil matters or accused in criminal matters to dictate to the listing judge which judge (or category of judge) will hear their case and when.

33. As I have earlier indicated, I am satisfied that the applicant has no constitutional right to demand that his trial be listed before a judge who speaks Cantonese. That being so, it is manifest that the applicant stands in no different position from an accused who, for example, wants his trial heard at a particular time. In each case, the listing judge has a duty to hear the request and to weigh the matters placed before him in support of the request along with the other matters which dictate the exercise of his discretion. Provided he does that and makes a rational decision in good faith I fail to see how the exercise of his discretion can be challenged.

34. The applicant may consider that the decisions of the listing judge were unfair. But that is not enough. What must be alleged is some form of illegality, impropriety or irrationality and, as Godfrey J (as he then was) said in Re Right Centre Co. Ltd [1990] 1 HKLR 250, these are steep hurdles.

35. It was Mr Lee's submission that the matters taken into account by the listing judge in refusing to list the applicant's trial before a bilingual judge were irrelevant. They were irrelevant because it was not for him to determine whether the trial should or should not be heard in Cantonese. That was a matter for the trial judge. His function was only to facilitate a situation in which a meaningful application could be made to the trial judge for the trial to be conducted in Cantonese. In short, as I understand the submission, his function was limited to finding a bilingual judge who could consider the applicant's request and, if granted, proceed immediately to use Cantonese in the trial. In my opinion, that cannot be right.

36. The listing judge, of course, fulfils a 'preparatory' role in that he seeks a suitable venue and time for the hearing of a trial. To that extent he facilitates a process by which an accused can be brought before a trial judge so that, once before him, the accused can make whichever applications he deems fit. But because an accused seeks a bilingual judge it does not mean that the listing judge is obliged to use his best endeavour to find him one. That, with respect, would be to reduce the role of the listing judge to beckoning to the dictates of an accused. As I have said, the listing judge has many matters to weigh in the balance.

37. In the present case, the listing judge was aware of the fact that, pursuant to section 5 of the Official Languages Ordinance, the determination of the language to be used by the judge at trial was a matter for that judge and not him. As he said in giving his first decision :

" Section 5 stipulates that the judge may use either or both the official languages as he thinks fit and his decision in relation to the proceedings before him is final. My function as the Criminal Listing Judge as opposed to the trial judge is preparatory, that is to make it feasible for an application for use of Chinese to be made to the trial judge."

38. In my judgment, it was entirely rational for the listing judge, in considering both of the applicant's applications, to carry out what was in effect a preliminary assessment of the various factors which the trial judge himself may later take into account in making a determination pursuant to section 5. In effect, as I see it, leaving aside matters such as the availability of other judges to hear the matter (scheduled for 10 days), the listing judge was saying simply : This matter has already been set down before a monolingual judge. It seems to me that, viewing the case in the round, it could, without inconvenience or injustice to the accused, be determined by that monolingual judge. I will therefore leave the trial listed before him in the knowledge that the will make the final determination. If he decides that it should be heard in Cantonese then it will be adjourned and returned to me for relisting.

39. Mr Lee has complained that such a decision merely compounds delay, that the applicant wishes his trial, once scheduled for hearing, to proceed on the scheduled date. But that is a complaint as to the wisdom of the decision and that is not a matter for this Court.

40. In my judgment, it is clear that the listing judge, in considering the applications before him, carried out what I will call a 'filtering process' or, as I have said, made a 'preliminary assessment' of matters relevant to the appropriate language for trial in order to determine whether the applicant's listing should remain as scheduled or be moved to another judge, perhaps at the cost of delay. Such exercises are employed every day in our courts to better ensure the administration of justice. That being so, I fail to see how it can be argued that the listing judge took into account matters that were materially irrelevant or failed to consider matters that were materially relevant.

41. The applicant's Notice of Application contains a complaint that, in making his first decision, the listing judge took into account a fact which was a mistaken fact, namely, that the case had already been fixed some six months ahead and it would be difficult to 're-juggle it' without causing disruption to other accused. Apparently, the matter had not been fixed six months previously; it had been fixed at a materially later date. But if that was a mistake, I do not believe it can be argued that it was a material mistake sufficient to quash the judge's decision. The essence of the decision was that the matter had already been set down and it would be difficult now to reschedule it without causing difficulties for other accused persons.

The length of this judgment

42. I have written this judgment in the knowledge that in leave applications it is, as a general rule, undesirable to consider the merits in depth. Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (at page 644) spoke of 'a quick perusal' of the material available in order to determine whether it discloses what, on further consideration, might turn out to be an arguable case. Recently, in Yu Pik Ying and Another v. Director of Immigration, Civil Appeal No.603 or 2000, Rogers JA commented :

" In my view, the application for leave to bring judicial review proceedings should be a short procedure. As the cases indicate it should not involve lengthy applications. Indeed, the more the details of the case are considered, at the application stage, the more undesirable the lengthening of the proceedings becomes. The merits of the application should be considered at the hearing of judicial review, if leave be granted. It is indeed undesirable that the merits are considered in depth until the case is fully prepared since even the expression of preliminary views can have undesirable effects. It is for this reason that in my view the application stage should be more of a weeding out process, stopping those applications doomed to failure."

43. In the present case, however, reasonably lengthy and complex arguments needed to be analysed to understand what lay at their core. Were they, despite the clothing of constitutional importance and the excitement of public interest, applications that were doomed to failure?

Conclusion

44. Employing the test stated earlier in this judgment, in my judgment, it cannot be argued that the applicant has a constitutional right to be tried by a judge who speaks whichever of the two official languages the applicant will use at his trial. He has no such right. The applicant's constitutional right is to use, that is, to utilize or employ Cantonese at his trial and, if necessary, to have himself understood by means of interpretation or translation.

45. The applicant does, of course, have a constitutional right to a fair hearing. His concerns over demeanour are legitimate concerns. Those concerns, however, have been anticipated by the Court of Appeal which has enunciated guiding principles for his protection.

46. As to the complaint that, in refusing the applicant's applications for re-listing before a bilingual judge, the listing judge acted in a manner that was Wednesbury unreasonable, in my judgment that matter too is not capable of argument.

47. Accordingly, the application for leave to apply for judicial review is refused.

48. As to costs, I have not had an opportunity to hear from the parties. Indeed, no respondent is cited in the Notice of Application. I also bear in mind that this application has been made ex parte albeit on notice. I will therefore order that costs be reserved with liberty to apply to set the matter down for argument.