XCHRX CHEUNG KONG (HOLDINGS) LTD. v. CHAN WAI YIP ALBERT

HCA16790/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.16790 OF 1998

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J U D G M E N T

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1. This is a defamation action by Cheung Kong (Holdings) Limited ("the plaintiff") against Albert Chan Wai Yip ("the defendant"). By a judgment of mine handed down on 4 August 2000, I refused the striking out application of the plaintiff.

2. There is now before me an application that has been referred by the master as part of the summons for directions where two matters had been troubling the parties. The first is a request by the defendant for a pleaded translations from Chinese to English of the five defamatory statements pleaded only in Chinese in the Statement of Claim; the second aspect is for the setting down and the determination of the mode of trial by a jury. The second aspect is no longer being pursued for the moment by Mr Lee for the defendant, because it is appreciated that this Action may not be ready for trial. So I would adjourn the hearing of the question of jury trial.

3. What divides the parties and what takes a little bit of time today before me is the unusual and difficult point raised by the parties in relation to the entitlement of a party to use mix languages in one set of pleadings. It seems to me that the question can be divided into two parts : the first is whether the plaintiff has a right to use mix languages in the Statement of Claim; and the second is if it does not have a right to use mix languages but is confined to use one language, whether the court should order an English translation of the defamatory statements pleaded now by the plaintiff only in Chinese.

4. The operative provision is section 5 of the Official Languages Ordinance, Cap.5. Section 5(1) of this Ordinance provides that :

"(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."

The reference to "both languages" under section 5(1) is to a hearing before the court and before a judge, and section 5(2) about the decision of a judge being final is also restricted to proceedings with an oral hearing. The debate is as to the scope of section 5(3), (4) and (5) which provide :

"(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."

5. Two rival contentions are put forward by the parties. The contention of Mr Jat for the plaintiff is that the plain reading of the words "any proceedings" and "may use either or both of the official languages" point to an unrestricted right to use both languages by a party throughout the proceedings and that the opening words of subsection (3) and for that matter of subsection (4), i.e. "notwithstanding subsection (1)" does not in any way cut down that right. Mr Jat contends that the words "notwithstanding subsection (1)" are for purposes of clarification and to indicate that the right of a party to use both languages are not in any way affected by the judge's decision in relation to proceedings before a judge, namely, oral proceedings.

6. The contention of Mr Lee for the defendant is that the words "notwithstanding subsection (1)" are important, because they delimit the right of the parties to use both languages and that they limited that right to the time when there is an oral hearing, that is to say a party can use both languages when there is an oral hearing in circumstances under subsection (1) before a judge. But legislature in Mr Lee's contention has left the use of language of proceedings not covered by an oral hearing to the wisdom of the Chief Justice under the rule-making powers of the Chief Justice pursuant to subsection (5). I must say this is not an easy exercise of construction. Apparently this is novel point and there is no previous decision on the point.

7. In favour of Mr Jat's contention is the argument that the intention of the Ordinance is to give a right to parties to use one or both languages and that must be throughout the whole proceedings and why should the provision not be read generously, liberally and purposefully. The problem with that construction is that it seems to run against the existence of rule 4 in the High Court Civil Procedure (Use of Language) Rules promulgated pursuant to section 5 of the rule-making powers of the Ordinance. Section 4(1) reads :

"(1) Any document which is required by any Ordinance to be -

(a) filed in the Court; or

(b) served on any person,

for the purposes of any proceedings may be in either of the official languages.

(2) Notwithstanding subrule (1), where any document which is filed in the Court by a party to any proceedings is in one of the official languages, a judge may direct the party to file a translation of the document in the other official language within such time as the judge may direct."

8. If the construction of section 5(3) is as contended by Mr Jat, then I find it difficult to understand why there is this rule 4(1) because if section 5(3) is all embracing in any event, how can rule 4(1) be put into the rules and is it ultra vires? Obviously, the court would lean against any construction which will render any of the rules ultra vires.

9. The statutory scheme proposed by Mr Lee, in my view, would reconcile the two provisions, section 5(3) and rule 4(1), quite happily, so that the statutory scheme is that in relation to court proceedings, because there is a judge in charge, a party can be given the right to use both languages, with the judge also having the similar ability to use one or both languages under section 5(1). But anything other than live court proceedings, that is oral hearings (whether by way of summons or trial and where there are appearances before the court), such as for example with court documents, then the language is restricted to one so that there should be at least internal consistency of language in that document. It is therefore said that in pleadings, use can be made of one language only, i.e. you choose your language in either English or Chinese, but you cannot use both.

10. The rival contentions, I must say, are finely balanced, but at the end of the day, I am persuaded that I should accept the reading of Mr Lee. My proper reading of section 5(3) is that it does not bite on the non-oral hearing part of proceedings such as pleadings, and that therefore, rule 4(1) is to be given its full effect. That being the case, it seems to me that Mr Lee is correct that when a party files a pleading, it must file it in only one language. I think it is accepted by Mr Jat that this is not what has been done. If the plaintiff had filed the Statement of Claim with the defamatory statements in Chinese, then it must also plead English translations of the important defamatory statements presently only pleaded in Chinese. On that issue, therefore, as a matter of construction, I am in favour of Mr Lee.

11. The fall-back position of Mr Lee is that if the court is wrong on the construction of section 5(3), the court in any event should order translations under rule 4(2). This has been resisted. The resistance is put very attractively on this basis : in defamation cases, very often the judge or the jury would tend to be bilingual, and therefore why should the defendant burden unnecessarily everyone with English translations and with a lot of time and expense involved in providing English translations which might even form the subject of translation dispute.

12. This Action is a somewhat unusual case where, I suspect, and I think Mr Lee has confirmed my suspicion today, that there may be considerably further interlocutory battles to be done between the parties. I think, as a matter of both good case management of the court system, where cases can go to various judges (some who are not bilingual) from time to time, as well as for the proper joining and clarification of issues, English translations of these important statements should be ordered. Translations, very often, would highlight the crucial differences between the parties especially when there is a dispute, and translations would allow the court system to operate smoothly so that any judge (whether bilingual or not) taking up the matter at the interlocutory stage would be able to quickly deal with it without the difficulty faced by the listing personnel or judges accompanied by the reaction : "Oh, the pleadings contain pleadings in Chinese without English translation". I think there are other considerations that would suggest it would be a good practice to have English translations supplied.

13. Of course, the requirement for English translation is a matter of quid pro quo. Now that Mr Lee is asking for English translations, his side must also provide English translations to the other side. So as a matter of exercise of discretion, I also order that English translations of the Defence should be pleaded. Therefore, on the issue of English translations, I find in favour of Mr Lee and I make an order accordingly.

[Submission on costs]

14. My order on costs is that the defendant shall have 80% the costs of the application before me.

15. On the matter of certificate for 2 Counsel, I think Mr Jat is an exceptionally able counsel. I was expecting Mr Tang to be here today to develop the argument. It is a matter which obviously would require the best each team can provide. This is a heavy piece of litigation and it is important to the parties. So I order certificate for 2 Counsel.