SECURITIES AND FUTURES COMMISSION v. MANDARIN RESOURCES CORPORATION LTD. AND ANOTHER

CACV 45/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 45 OF 1999

(ON APPEAL FROM HCCW 348 OF 1996)

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J U D G M E N T

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Leong, J.A. (handing down the reasons of the Court for its judgment pronounced on 23rd March 1999):

1. At a pre-trial directions hearing on 19th January 1999 relating to a winding-up petition presented by the Securities and Futures Commission, Burrell, J. refused a request by the 2nd respondent in the petition Mr. Chim, for translation of the English documents in the case into the Chinese language. The reasons for the judge's refusal was handed down on 22nd January 1999. Mr. Chim's present appeal (CACV 45/99) is against this refusal.

2. In deciding whether he should order translation of the documents, Burrell, J. had regard to Rule 3(1) of the High Court Civil Procedure (Use of Language) Rules that the paramount consideration is the just and expeditious disposal of the proceedings. In applying this Rule, the judge considered the degree of Mr. Chim's familiarity with the English language and the practical consequences of granting his request. He found Mr. Chim was familiar with the English language and absence of Chinese translation of the documents in the case would not prejudice his conduct of the proceedings in person. Given the enormous volume of documents in the case, he also concluded that the translation exercise would result in lengthy delay in getting the petition to trial and that the costs involved would likely be considerable. The judge was not persuaded that granting the request would enable the proceedings to be disposed of justly and expeditiously. In coming to this conclusion, the judge took into account Mr. Chim's failure to make requests for translation of documents before the pre-trial hearing, the evidence of Mr. Rogers of Herbert Smith, solicitors representing the petitioner that Mr. Chim spoke and understood English, and the substantial correspondence and court documents in English generated by Mr. Chim.

3. Mr. Chim put up a number of grounds of appeal and his submissions based on these ground may be summarised as follows:

"1. Both Chinese and English are official languages and official spoken languages include Cantonese and Putonghua. Although the judge may decide what language will be used in court proceedings, there must be reciprocal interpretation and translation of documents from one language to the other so that the parties may understand the contents of the documents. The Securities and Futures Commission, being a government supervisory body, should have its documents in both official languages, otherwise, it is discriminating the Chinese language. The judge refused his request because he was influenced by petitioner's solicitors.

2. He did not request translation of documents previously because he was then facing a criminal trial and he considered that all civil matters should be postponed until after his criminal trial. In any case such a request may be made at any stage prior to the commencement of the trial. The petitioner should not have relied on the time limit in Rule 5(1) of the rules to refuse his request.

3. The judge was wrong to consider him familiar with the English language on the basis of his correspondence and other documents. He was a Legislative Councillor at the time, the correspondence and other documents were handled by his staff and his lawyers. There was no evidence that he himself drafted those English documents.

4. Although he is able to converse in English generally, his knowledge of the language is not such that he could understand legal documents fully to enable him to conduct his case. Even Mr. Rogers whose evidence the judge had accepted stated that his English was not perfect.

5. The costs and time required to translate all the documents involved was not a valid consideration for refusing his request since the paramount consideration is that he should not be deprived of his legal right to have Chinese translation of the documents."

4. In our view, although the English and the Chinese languages are the official languages of the Hong Kong SAR, in any court proceedings, the judge has a residual the discretion to determine the official language to be used (s.5(1) of the Official Language Ordinance, Cap. 5). In deciding which language should be used, Rule 3(1) lays down the paramount consideration as the just and expeditious disposal of the proceedings. Rule 5(1) enables a party to request the court to order translation of documents in an official language with which he is not familiar into the other official language with which he is familiar. It also sets down the time limit for making the request. In deciding whether to make an order pursuant to the request, Rule 3(1) also applies.

5. Which official language or both will be used and whether translation of a document should be ordered is a matter of discretion. In the present case, unless it can be shown that Burrell, J. had misdirected himself or was plainly wrong, his exercise of discretion should not be disturbed.

6. Mr. Chim accepted that his request was made outside the time limit laid down in rule 5(1) but he complained that his request should not be refused merely by reason of his non-compliance with this time limit. But this non-compliance was not relied on by the petitioner to ask the judge to refuse Mr. Chim's request and neither did the judge regard this as the primary basis for his refusal. It follows that Mr. Chim has no substance in this complaint.

7. Based on the evidence he accepted, the judge's found that Mr. Chim was proficient in the English language and it would not be unjust not to grant his request. We see no reason to disturb this conclusion. Because of the magnitude of the translation exercise, in terms of 50 box files of documents, and the costs and time they were likely to involve, it was clearly impractical to accede to Mr. Chim's request. The judge's conclusion that this would not be a just and expeditious disposal of the proceedings could not be said to be wrong. Nothing has been shown that the exercise of his discretion should be disturbed.

8. Mr. Heslop, Q.C. leading counsel for the petitioner had indicated to the court that the petitioner was willing to provide assistance to Mr. Chim on any reasonable translation problem which was specific and would cause genuine difficulty. That being so, this will not be a case that Mr. Chim who is acting in person will be entirely helpless should he genuinely encounter a particular difficult translation problem with the documents. For all these reasons, the appeal is dismissed.