DBS BANK (HONG KONG) LTD v. SI, ECHINACEA

[English Translation – 英譯本]
HCA 1602/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1602 OF 2009

_________________

_________________

DECISION

Background

1. This hearing is about an appeal brought by the defendant, Madam Si, from an order made by Master Ko on 4 September 2009. Madam Si was a former customer of the plaintiff, DBS Bank (Hong Kong) Limited (hereinafter referred to as “DBS Bank” or “the Bank”). Due to the “Lehman Minibonds” saga, Madam Si was dissatisfied with the investment services provided to her by the Bank and therefore had a dispute with it. DBS Bank made an ex parte application to the High Court for an injunction on 17 July 2009 and was granted an interim injunction by Burrell J., which prohibited Madam Si from causing nuisance to the Bank. On the same day, DBS Bank immediately took out an inter partes summons to apply for an extension of the interim injunction granted by Burrell J., and served the summons and the affidavit in support of the application on Madam Si. Up to that time, all the documents given to Madam Si by DBS Bank were written in English.

2. On 20 August 2009, Madam Si for the first time requested DBS Bank to provide Chinese translations of those documents. DBS Bank had no response. So Madam Si took out a summons on 24 August 2009 applying for an order from the court that DBS Bank shall: (1) disclose 26 cassettes of audio/video tapes (hereinafter referred to as “the disclosure application”); and (2) provide Chinese translations of the documents already served on her (hereinafter referred to as “the translation application”). On 4 September 2009, Master Ko heard the summons. Regarding the disclosure application, Master Ko directed DBS Bank to file an affidavit in opposition in Chinese, and fixed a call-over hearing of the application for 16 September 2009. But the Master dismissed the translation application of Madam Si and ordered her to pay costs of $800 to DBS Bank.  

3. Between 10 and 18 September 2009, DBS Bank filed a statement of claim and a number of affidavits. With the exception of the affidavit in opposition to the disclosure application which was written in Chinese, all other documents were written in English. On 23 October 2009, Madam Si appealed against the order of the Master dismissing her translation application and the order of costs.  

Applicable legal principles

4. Due to historical reasons, social, political and economic needs, Hong Kong is a bilingual region. Section 3 of the Official Languages Ordinance (Cap. 5) affirms that the English and Chinese languages are the official languages of Hong Kong and they possess equal status and enjoy equality in use. Section 5 affords absolute power to a judge, magistrate or other judicial officer to decide to use either or both of the official languages in any proceedings or a part of the proceedings before him. As to the legal documents served for the purposes of any relevant proceedings on a party to the proceedings (hereinafter referred to as “the legal documents”), rule 5 of the High Court Civil Procedure (Use of Language) Rules (Cap. 5C) provides as follows:

“(1) A party to any proceedings who –

(a)  is served with a document in an official language with which he is not familiar; and

(b)  is familiar with the other official language,

may request the party to the proceedings serving the document to provide him a translation of the document in the other official language.

(2)  A request under subrule (1) shall be made -

(a)  in writing; and

(b)  within 3 days after the service of the relevant document.

(3)  A requested party shall -

(a)  notify in writing the requesting party within 3 days after receiving the request that -

(i)   he will provide the translation as requested; or

(ii)  he will not provide the translation;

(b)  where he notifies the requesting party that he will provide the translation, provide the translation to the requesting party within a reasonable period of time.

 (4)  Where a requesting party -

(a)  is not notified under subrule (3)(a);

(b)  is notified under subrule (3)(a)(ii) that the requested party will not provide the translation; or

(c)  is notified under subrule (3)(a)(i) that the requested party will provide the translation, but does not receive the translation within a reasonable period of time,

he may apply to the Court for an order that the requested party shall provide the relevant translation to him.

(5)  Upon an application under subrule (4), the Court may -

(a)  order the requested party to provide the relevant translation to the requesting party within such period of time as the Court thinks fit if it is satisfied that the relevant request is reasonable;

(b)  order that every document to be served by the requested party to the requesting party for the purposes of the relevant proceedings after the date of the order shall either -

(i)   be in the official language with which the requesting party is familiar; or

(ii)  be in the official language with which the requesting party is not familiar and accompanied by a translation of the document in the other official language; and

(c)  make such order as to the costs of and incidental to the application as it thinks just.

(6)  The costs of and incidental to providing a translation pursuant to -

(a)  a request under subrule (1); or

(b)  an order under subrule (5)(a) or (b),

shall be costs in the cause of the proceedings unless the Court otherwise directs.

(7)  In this rule -

“requested party” (被要求的一方) means a party to whom a request under subrule (1) is made;

“requesting party” (作出要求的一方) means a party who makes a request under subrule (1).”

5. The focus of this appeal is on the interpretation and application of this provision. Its correct interpretation is as follows. Subrule (1) implies that a party to any proceedings may choose to use either official language in the legal documents. If the other party is not familiar with that official language but is familiar with the other official language, he (the requesting party) may request the party issuing the documents (the requested party) to provide a translation of the legal documents in the other official language. Since both the Chinese and English languages are the official languages of Hong Kong and they possess equal status and enjoy equality in use, a party to any proceedings may freely choose to use either official language in the legal documents. As this is his constitutional right, the other party may not take issue with it but he may request the requested party to provide a translation in the other official language. However, the requesting party must first meet a precondition and comply with certain procedural requirements before he may request a translation.

6. The first precondition is that under subrule (1), the requesting party must be unfamiliar with the official language used in the legal documents but is familiar with the other official language. If he is familiar with both official languages, he is a bilingual party to the proceedings and he may not request the party issuing the legal documents to provide a translation in the other official language. Subrule (1)(b) does not provide that the requesting party may request a translation so long as he is more familiar with one of the official languages. Similarly, if he is not familiar with either official language, he may not request a translation since it will make no difference to him in which official language the legal documents are written and the provision of translation will only entail an unnecessary increase in litigation costs.

7. As to the standard of being “familiar with a language”, I am of the view that it is just an ordinary standard. A person who is familiar with a language needs not be proficient in that language. The standard of language ability that he needs to attain is that he is able to conduct ordinary conversation and to communicate by letters with others in that language, and is able to express his wishes clearly in that language and to understand what others express to him in that language. Generally speaking, a person whose language ability of a language is of the level of junior secondary school may already be regarded as being familiar with the language. Being familiar with a language is not tantamount to being familiar with the points and principles of law expressed in that language. The latter is about the ability to understand law but not about the language ability. Failure to understand the difference between the two would render the great majority of Hong Kong people being regarded as being unfamiliar with either official language.

8. Besides, the requesting party must also comply with certain statutory procedures before he may request the requested party to provide a translation. I must point out that “requesting party” and “requested party” are legal terms. They are not ordinary terms. These two terms have their specific legal definitions under subrule (7), which mean respectively a party who makes a request under subrule (1) and a party to whom a request under subrule (1) is made. Subrule (2) stipulates that a request under subrule (1) shall be made in writing and within 3 days after the service of the legal documents. The effect of subrules (1) and (2) is that a party to any proceedings must make the request to the party issuing the legal documents for a translation in writing and within 3 days after the service of the legal documents before he can become the “requesting party” and enjoy the rights under rule 5. Similarly, it is under these circumstances can a party to whom the request is made become the “requested party” and bear the duty to provide a translation.

9. Subrule (3) provides that the requested party shall notify the requesting party in writing within 3 days after receiving the request whether he will provide the translation as requested or not. If he does not respond or refuses to provide the translation or the requesting party does not receive the translation within a reasonable period of time, the requesting party may apply to the Court under subrule (4) for an order that the requested party shall provide the relevant translation to him. These are statutory procedures. If the requesting party fails to make the request in writing to the requested party or to apply to the Court for an order in accordance with the statutory procedures, he is deemed to have forgone his right to request for a translation and the Court does not have the judicial power to order the requested party to provide a translation or to give other directions.

10. In hearing an application requesting for a translation, the Court may exercise its judicial power in two ways. First, under subrule (5)(a), if the Court is satisfied that in relation to the legal documents involved in the application, the relevant request is reasonable, the Court may order the requested party to provide the relevant translation within such period of time as the Court thinks fit. In deciding whether the request is reasonable, the Court must keep in the forefront of its mind the consideration for the hearing of the dispute between the parties in the most effective manner and the most economical way in terms of legal costs. The Court shall take into account the nature of the dispute between the parties, the language used in the documents involved in the case, and the relative level of familiarity with the two official languages of the parties. In considering whether the requesting party meets the precondition under subrule (1), the relative level of familiarity with the two official languages of the requesting party is not a factor for consideration but it is a material point in assessing whether the request is reasonable. Although the power afforded to the Court to make orders under subrule (5) is a discretionary power, the Court must exercise this discretionary power in accordance with the legal principles. If the relevant request is reasonable, the Court must exercise this discretionary power upon the application of the requesting party.

11. Besides, under subrule (5)(b), the Court may of its own motion order and give directions as to the legal documents to be served on the requesting party after the date of the order. The Court may, if it thinks appropriate, direct that the legal documents to be served by the requested party shall be in the official language with which the requesting party is familiar or be in the official language with which the requesting party is not familiar and accompanied by a translation of the documents in the other official language. The factors to be considered by the Court in the exercise of its discretion under subrule (5)(b) are the same as that in the exercise of its discretion under subrule (5)(a).

12. In summary, according to the interpretation on rule 5, if a party to any proceedings intends to request the other party to provide a translation in the other official language of the legal documents served on him, he must make the request to the other party in writing and within 3 days after the service of the legal documents. He must be unfamiliar with the official language adopted by the legal documents and be familiar with the other official language. If the above conditions are met, he then becomes the requesting party and the party serving the legal documents becomes the requested party. If the requested party does not respond within 3 days or refuses the request or does not provide the translation within a reasonable period of time, then the requesting party may apply to the Court for directions. If satisfied that the request is reasonable, the Court may order the requested party to provide the relevant translation, and give directions which include the directions that the legal documents to be served on the requesting party after the date of the order by the requested party shall be in the official language with which the requesting party is familiar or shall be in the official language with which the requesting party is not familiar and accompanied by a translation of the documents in the other official language. However, if the party served with the legal documents fails to make the request in writing and within 3 days to the party issuing the legal documents for the provision of a translation, he will not become the requesting party and cannot apply to the Court for directions. Even if he makes an application, the Court will not have the judicial power to give the directions under subrule (5).

The course of the hearing before the Master on 4 September 2009

13. The Master did not give Reasons for Decision for dismissing the translation application of Madam Si. During the hearing of the present appeal, I take the view that it is necessary to understand the substance of the translation application of Madam Si and the course of the hearing. The translation application of Madam Si was prepared in English. She requested:

“Need DBS provides Chinese translation about HCA 1602 2009.”

It appears that Madam Si’s ability of expression in the English language was not high. Her grammar was wrong and her words failed to convey her idea. She could not express clearly of what documents she required a Chinese translation. It is only after reading the transcript of the hearing on 4 September 2009 can I ascertain that she requested DBS Bank to provide a Chinese translation of all the legal documents which have been and would be provided.

14. Although the Master did not give Reasons for Decision, yet I can infer the thinking of the Master at that time from the course of the hearing as recorded in the transcript. Between line L and line T on page 12 of the transcript, the Master briefly stated his reasons for dismissing Madam Si’s application:

“Master:     Regarding the request of Madam Si that the Plaintiff should provide English translation (sic) of all the documents which have been filed, I dismiss this application of hers. Why? It is because I do not think it necessary to provide a Chinese translation of those. First of all, the affidavit evidence that Madam Si filed into court is drafted by her in English too. I have read the English and they are indeed not bad.

Madam Si:  Not bad, okay, thank you.

Master: Not bad. Madam Si’s English obviously shows that she has the ability to understand some simple documents.

Madam Si:  Yes, simple documents.

Master: I have also read the affidavit evidence filed into court by the Plaintiff and the endorsement (i.e. the annotation) in the writ of summons. I am of the view that the English used in the documents are just some common and not complicated English. One may have to read them slowly but it does not mean that Madam Si does not have the ability to understand their contents.

Madam Si:  I have the ability to understand but I am afraid that my understanding may be wrong.

Master: So that being the case, I do not see the necessity to direct the Plaintiff to provide Chinese translation. Madam Si, if you think that there may be some words in some documents which you do not quite know, perhaps you can look them up in the dictionary. …”

Then, there is the following record from line D to line H on page 13 of the transcript:

“Master: Madam Si, what I just said refers to what is going to happen afterwards. Miss Li is willing to write in Chinese with regard to what is going to happen afterwards.

Madam Si:  Good, good, okay.

Master: And it is also for the avoidance of future argument. So I find this arrangement also a reasonable arrangement.

Madam Si:  Okay.

Master: As to the question of whether those documents which have already previously been filed require Chinese translation, I do not find it necessary. Do you understand? Clear now?”

(The underlined parts above are the parts which will be of my concern.)

I believe that the Master clearly understood the applicable legal provisions. After examining the affidavit of Madam Si filed and drafted in English and the writ of summons prepared in English by DBS Bank, the Master was of the view that Madam Si possessed sufficient English language ability to understand the legal documents already provided by DBS Bank. Therefore, he dismissed Madam Si’s request for providing translation of the documents already filed. Meanwhile, he might be thinking that although subrule (5)(b) gives the Court power to direct a party to the proceedings to use Chinese in the legal documents to be served, as Madam Si failed to prove that her request in this respect was reasonable, and the direction for the provision of Chinese translation would in the end result in the losing party having to pay the costs of translation, he persuaded the lawyer representing DBS Bank to prepare the affidavit in opposition to the disclosure application in Chinese so as to avoid the question of having to provide translation of the legal documents to be served.

15. The approach of the Master is very sensible and can save costs. However, it can be seen from the above transcript that DBS Bank misunderstood his intention. The Master might have thought that by having persuaded DBS Bank to prepare the affidavit in opposition to the disclosure application in Chinese, the parties reached a consensus that DBS Bank would use Chinese in the legal documents to be served and the question of providing Chinese translation could be dispensed with. This was also the understanding of Madam Si. The Master did not make this consensus an order of the Court. As shown by the said transcript, this consensus was only an arrangement to which the legal representative of DBS Bank agreed and was not an order of the Court. DBS Bank thought that the direction of the Master was only applicable to the disclosure application. The sealed order of the Court also only showed that the Master directed DBS Bank to file an affidavit in opposition to the disclosure application by 14 September 2009 and dismissed Madam Si’s translation application. The sealed order of the Court was consistent with the understanding of DBS Bank and reflected the agreement of the Master to the consensus being a non-binding arrangement only.

Grounds of appeal

16. Madam Si’s grounds of appeal are unclear and ambiguous. She claimed that the Master “clearly said that the plaintiff must provide a Chinese translation of the documents after 3 September”, which signified that the Master approved her translation application. If that was her understanding of the Master’s order, she should not appeal from it. She claimed that DBS Bank was in breach of the order by serving English legal documents on her. She also claimed that “but in the end (she) was adjudged to have to bear the costs and dismissed the case”, which signifies that her appeal is only against the costs order of the Master. She also complained that the Master “was unfair in adjudging against (her) merely on the ground that (she) wrote letters in English and filed English affidavit”, which signifies that she was also dissatisfied with the Master dismissing her request for the provision of (Chinese translation) of the legal documents served on her prior to 3 September 2009 by DBS Bank.

17. Having enquired of Madam Si at the appeal hearing, I understand her grounds of appeal are that the Master wrongly ruled that she was familiar with English and refused her request that DBS Bank should provide Chinese translation of the legal documents served on her before 4 September 2009 and those to be served on her. The focuses of the present appeal are:

(1) Whether Madam Si made a request for Chinese translation to DBS Bank in writing and within 3 days after the service of the relevant legal documents;

(2) Whether Madam Si was not familiar with English but familiar with Chinese;

(3) If Madam Si was not familiar with English but familiar with Chinese, whether her request for the provision of Chinese translation of the legal documents served on her before 4 September 2009 was reasonable; and

(4) Under the overall circumstances of this litigation, whether the Master should exercise his discretionary power under rule 5(5)(b) of the High Court Civil Procedure (Use of Language) Rules in respect of the legal documents served on Madam Si after 4 September 2009 and those to be served on her?

Appeal out of time

18. Mr. Lai, Counsel for DBS Bank, pointed out that the Master dismissed Madam Si’s translation application on 4 September 2009 and under Order 58, rule 1(3) of the Rules of the High Court, Madam Si should bring an appeal within 14 days after the making of the order. Thus, her appeal was out of time for 1 month. Under Order 3, rule 5 of the Rules of the High Court, the Court may, on such terms as it thinks just, extend the period within which a person is required to do any act in any proceedings. In such applications for leave to appeal out of time, the Court must consider all the facts of the case and the relevant factors, in particular:

(1) For how long it was out of time;

(2)  Reasons for the delay;

(3)  Prospects of the appeal; and

(4)  The likely adverse effects to the respondent if leave to appeal out of time is granted.

19. In the instant appeal, Madam Si was out of time for just one month. The dispute between the parties is about procedures, namely, whether it is necessary for DBS Bank to provide translation of the legal documents. Even if Madam Si was granted leave to appeal out of time and her appeal was allowed, DBS Bank would not suffer from any substantial adverse effects for the reason that if Madam Si’s appeal was allowed, it must be by reason of her request being reasonable and it follows that DBS Bank would have to provide translation. As a result, whether leave to appeal out of time should be granted to Madam Si is dependent upon whether she can show reasonable cause for the delay in her application for appeal and the prospects of the appeal.

20. Regarding the reasons for the delay in bringing the appeal, Madam Si explained that she had misunderstood the Master’s order. She wrongly understood the order to mean that DBS Bank had to provide Chinese translation of the legal documents to be served on her after 4 September 2009. So she did not bring the appeal until after DBS Bank had served on her a statement of claim and an affidavit prepared in English on 18 September 2009 and after she had tried to reason with DBS Bank and complain to the clerk to the Master but both to no avail.

21. The sealed order of the Master is abundantly clear. Madam Si should be able to understand that her application was adjudged unsuccessful and that she had to pay costs to DBS Bank. However, it can be seen from the transcript quoted in paragraph 14 above that her misunderstanding is completely understandable. Her subsequent correspondence with DBS Bank and with the clerk to the Master shows that her misunderstanding is genuine instead of being an excuse concocted for the purpose of trying to account for the delay in bringing the appeal.

22. I accept the reasons offered by Madam Si for the delay in bringing the appeal. As to the prospects of her appeal, I shall deal with them in conjunction with the grounds of the appeal. If the grounds were justified, I would grant her leave to appeal out of time and allow the appeal. Otherwise, I shall dismiss the appeal.

Determination on the instant appeal

23. In this application, it is not disputed that DBS Bank served 10 legal documents prepared in English on Madam Si in the month of July 2009 but Madam Si did not make a request either in writing or orally to DBS Bank for the provision of Chinese translation until 20 August 2009. Her application was not in compliance with the statutory procedures required under rule 5(2). Therefore, she may be regarded as having forgone and lost the right to request for a translation. The Master did not have the jurisdiction to hear Madam Si’s translation application. Nor did he have the discretionary power to order DBS Bank to provide a Chinese translation of the legal documents already served on Madam Si or give any directions in respect of the legal documents to be served on Madam Si after 4 September 2009. Similarly, I do not have these powers when I hear this appeal. Madam Si’s appeal has no prospects at all and her appeal must be dismissed. I also cannot grant her leave to appeal out of time.

24. However, I will take this opportunity to make some observations. The Master was of the opinion that Madam Si was sufficiently able to understand the legal documents served on her. This must be based on his opinion that Madam Si was familiar with the English language. This was a finding of fact. Since Madam Si chose to use English in her communications with DBS Bank and by reason of what she stated to the Master, it is understandable that the Master had such assessment of her level of familiarity with the English language. But having carefully read those English letters and the affidavit as well as the statement filed by Madam Si for the purposes of the instant appeal, I hold opposite views. Madam Si has never received any proper English language education. She only learned English in a learning class held for new immigrants after her emigration to Canada. Her English language ability is limited. Although the English letters that she wrote to DBS Bank can be said to be coherent, the English that she used is colloquial English. Both the grammar and the spelling are wrong and the words fail to convey the ideas. Her English can only be described as “Chinglish”. A reader has to guess before he can understand what she tries to express. Her application summons is a good example. I believe she also has difficulty in understanding the legal documents served on her. With her English language ability, she can only cope with some general, simple and daily living needs. She cannot be considered as being familiar with English. Even though I have re-assessed her English language ability in the light of these new pieces of evidence, it is of no assistance to her appeal since she had not made a request for translation to DBS Bank within 3 days after the service of the relevant legal documents.

25. DBS Bank has engaged counsel to conduct the proceedings on its behalf in this litigation. It makes absolutely no difference to either DBS Bank or its legal representative to use the Chinese or English language in the legal documents. If its lawyers chose to draft the legal documents in English (sic), it would not even involve additional costs for the provision of translation. On the contrary, Madam Si is not familiar with English but is familiar with Chinese. Her request for Chinese translation is reasonable. Besides, a direction that DBS Bank should use Chinese in the legal documents to be served on Madam Si is also consistent with the principle which I have mentioned in paragraph 10 above, namely, hearing the dispute between the parties in the most effective manner and in the most economical way in terms of legal costs. Therefore, had Madam Si complied with the procedural requirements under rule 5(2), I would have allowed her appeal and directed DBS Bank to use Chinese in or provide a Chinese translation of the legal documents to be served on Madam Si. But this opinion is just obiter dictum.

26. In view of this and in order to avoid any future translation application between the parties and any waste of costs, I have tried to persuade DBS Bank to use Chinese in the legal documents to be served on Madam Si. But the Bank was not persuaded. I can only give a detailed explanation to Madam Si as to the circumstances under which rule 5 is applicable and give her guidance that she must make the request, if necessary, to DBS Bank for a translation within the time limit. I have also explained to her the liability on the costs of providing a translation under rule 5(6).

27. In my view, Madam Si’s request for a translation is reasonable. Nevertheless, I cannot allow her appeal for legal procedures reasons. It is indeed beyond me that DBS Bank would rather pay an amount of legal costs which is far more higher than the costs of providing a translation so as to reject Madam Si’s request, to oppose her translation application, and to even engage counsel to defend the Bank in her appeal and not to take my advice to settle the dispute with Madam Si about providing a translation. I am of the view that the attitude of DBS Bank in dealing with the dispute is wholly unreasonable. As a result, although I have dismissed Madam Si’s appeal, I do not order her to pay the costs of the appeal to DBS Bank.

28. For the reasons given above, I dismiss Madam Si’s appeal but I make no order as to costs.

Application for leave to appeal

29. Dissatisfied with her appeal being dismissed by me, Madam Si applied to me on 22 January 2010 for leave to appeal to the Court of Appeal from my order. The affidavit that she filed repeats her grounds. There is nothing new with her grounds of appeal and I am not going to discuss them here in detail. And she did not dispute that she had not requested DBS Bank in writing and within 3 days after the service of the relevant legal documents for a translation. For the reasons given above, neither the Master nor I have the judicial power to order DBS Bank to provide a Chinese translation of the relevant legal documents or to give directions as regards the legal documents to be served on her. She has no justification whatsoever to appeal from my decision nor does her appeal from my decision have any prospects. Therefore, I dismiss her application for leave to appeal and order her to pay to DBS Bank the costs of the application, being taxed at $1,750.

30. Besides, I am given to know that Madam Si has, following my guidance, applied to a Master in relation to her request that DBS Bank should provide a Chinese translation of certain legal documents and use Chinese in the legal documents to be served on her and her application was allowed. At the original hearing, she also accepted that DBS Bank needed not provide a translation of the legal documents served on her before 4 September 2009. Therefore, it is completely meaningless for her to appeal from my decision. Her attitude in dealing with the litigation has become irrational and it is an abuse of legal proceedings as well as vexatious.