CHAN MING HUNG v. SUM CHOI WAN CHAU AND OTHERS

HCA 907/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 907 OF 2009

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BETWEEN

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REASONS FOR DECISION

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1.  This is the Defendants’ application for an order to set the case down for trial before a bilingual judge. The plaintiff opposes this application.

2.  The details of the fact of this matter are not important for the determination of this issue. Briefly, the plaintiff is claiming against the defendants for breach of fiduciary duties and for declarations that the 1^st defendant and the 3^rd defendant are holding the property on trust for the plaintiff and also for an order that the all defendants shall account for the trust property and the trust money to the plaintiff. The defendants defend and counterclaim for expenses for the management of the property in question.

3.  Mr. Wan, solicitor for the defendants submits the following reasons for his application for a bilingual judge:

(a) The 1^st defendant is an old lady who does not speak English;

(b) She had a bad experience herself in her appeal against the decision of the Director of Legal Aid, who had refused her application for legal aid. At the appeal, the proceedings were conducted in Cantonese, but she speaks Fukienese. She was assisted by an interpreter throughout the proceedings. She did not feel comfortable and was not able to concentrate her attention on the conduct of her appeal. As a result, she failed; and

(c) There will be more costs for the translation of the documents, which will even escalate further if the translation has to be certified. He has prepared a bundle of 183 pages of Chinese documents.

4.  Mr. Chan, the solicitor for the plaintiff opposes this application on the following reasons:

(a) His counsel can speak Chinese, but she cannot read Chinese documents. As a result she has to be provided with translation of the Chinese documents. If the Court orders a bilingual judge for the trial, he may have to consider changing counsel.

(b) He relies upon the authority of Jian Yu Qiang v. Li Shi Liang & Others HCA459/2003 by Madam Justice Chu, as she then was, delivered on 15 March 2004. In this case the defendant appealed against the Listing Master’s order refusing the defendant’s application for a bilingual judge. The defendant relied on 2 reasons for a bilingual judge: witnesses spoke Chinese and extra costs for translation of Chinese documents. In this case, the plaintiff’s counsel was a monolingual counsel. The Judge dismissed the appeal on this issue by saying:

“14. …What is implicit in this argument is that the plaintiff can always change his counsel, and he will have to do so if the trial is directed to be before a bilingual judge. But this is to ignore the fact that the plaintiff’s junior counsel has been involved in the case for some time by now. Additional costs and possibly additional time will be incurred if the plaintiff were to be forced to change counsel at this stage. I take the view that save in exceptional circumstances, parties’ right to be represented by counsel of their choice should be respected.”

The learned Judge had also held that the trial would not be affected by having a monolingual judge [para. 16]; and that if the trial were ordered to be conducted by a bilingual judge, there would be a delay as this would hamper the flexibility in listing and fixing the trial date [para. 17].

(c) The trial is not one that has to be tried by a bilingual judge and the parties can have the Chinese documents translated, bearing in mind the judgment of Deputy High Court Judge Carlson in Securities and Futures Commission v. Descartes Investment Management Limited & Others HCMP796/2009 delivered on 23 March 2010 at paragraph 10 he said:

“… I am satisfied that the correct direction is that this case need not be tried by a bilingual judge, with the result that the parties should now translate the Chinese documents and at this pre-trial stage, they should share the cost of translation equally. If the Defendants’ solicitors are agreeable then it will only be necessary to translate the core documents, otherwise all the documents will have to be translated with any costs implications as to unnecessary translation costs to be decided by the trial judge at the end of the trial.”

5.  I agree with the judgment of Chu J. that the parties’ choice has to be respected. There have been guidelines, after consultation with the Chief Justice, to offer judges and judicial officers assistance in the making of decision. They are, of course, not meant to fetter the exercise of their discretion. One of the guidelines is the choice of language where it states that the court must bear in mind that the lawyer, whether counsel or solicitor, also has the right to use either Chinese or English in representing his client. See HKCP 2011 Vol II at N2/3/5 page 846-7.

6.  As the 1^st defendant does not conduct the trial herself, but only acts as a witness, she will not be affected by the language at the trial. I am told that her witness statement was prepared in English.

7.  In the Case Management Summons and Case Management Conference hearings recently, I have incorporated the direction that if the party is to apply for a bilingual judge, the applicant has to prepare a bundle of the relevant Chinese documents by reference to the pleadings, which the parties will refer to at the trial. If there is more than one bundle of Chinese documents, an index should be prepared for the court’s consideration. The purpose of the direction is to assist the parties to focus their attention on the relevant Chinese documents that will be of use at the trial so that they will focus on the issues in dispute. On the other hand, the court will also be assisted to see if the documents are relevant for the issues in dispute and if so, how many of them will be necessary. This is to assist it to exercise active case management, in particular, in relation to proportionality test and distribution of the resources of the Court under Order 1A rule 1(c) and rule 1 (f) of the Rules of the High Court respectively.

8.  I can quote one recent example. I have dealt with one case where there were 2 bundles of Chinese documents, for which the parties asked for a bilingual judge for trial. On an analysis of the pleadings, it was discovered that of those Chinese documents, only a few pages on the issue of commission would be referred to at the trial. The parties then agreed that a bilingual judge was not necessary.

9.  I have therefore asked Mr. Wan if he can assist me on the relevant Chinese documents for the trial, he having produced a bundle containing 183 pages of Chinese documents. Mr. Wan said that he could not assist me.

10.  I ask both solicitors to take the bundle of Chinese documents outside the courtroom to go through them briefly in order to ascertain, roughly, the number of Chinese documents necessary for the trial. After 10 minutes, they return and tell me that only about 80 pages of the bundle will be necessary for translation. This number may be further reduced after counsel’s advice.

11.  The answer to this application is clear. Mr. Wan has not been able to persuade me that this matter has to be tried by a bilingual judge. The plaintiff’s counsel cannot read Chinese documents. Therefore the Chinese documents have to be translated in any event. The number of Chinese documents to be translated will be about 80 pages, which will cost, as according to the parties, about $9000 and take 3 weeks for the translation.

12.  I refuse the defendants’ application for a bilingual judge.

13.  As to the costs of this application, the costs of today, including the costs reserved, if any, should be awarded to the plaintiff and the defendants agree to pay $2,500, which the plaintiff agrees to accept. I so order and that the costs be paid within 14 days from the date hereof.

14.  With consent of the parties, I allow this Decision to be published for reference by the profession.