XCHRX Hebei Enterprises Ltd. and Others v. Livasiri & Co. (a firm)

HCA 20094/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 20094 OF 1998

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D E C I S I O N

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1. This is an appeal from a master who refused to make an order on a summons issued on behalf of the Plaintiffs which sought a total of 13 orders. The Master's order was that the summons be dismissed, but without prejudice to the Plaintiffs to join certain additional defendants and that there be no order as to costs.

2. In relation to the 13 orders sought on this summons, paragraphs 1 to 7 deal with the joinder of parties. Paragraph 1 is for an order that the original defendant be named as 1st Defendant and paragraphs 2 to 7 deal with the addition of certain other parties. There is no objection taken to these proposed orders and I will make an order in terms of paragraphs 1 to 7 of the summons of 28 October 1999.

3. In relation to paragraph 10 which is for service of the amended writ to be dispensed with, Mr. Chow has indicated this morning that he does not wish to proceed with that, so I make no order as to paragraph 10.

4. In relation to paragraph 11 which is in relation to the service of the Statement of Claim out of time, Mr. Thomas for the 1st Defendant has made no objection to that today, and since I have not been told of any prejudice to any party, I will also grant leave to serve the sealed copy of the Statement of Claim on the 1st Defendant within 14 days from the date of the order.

5. In relation to paragraph 12, since that does not include the 6th Defendant which is out the jurisdiction, I also see no objection to an order in terms of paragraph 12.

6. The matter which taxed the Master was paragraph 8 and paragraph 9 of the summons, and that was because the original Writ of Summons and Indorsement Claim was in English. Now, what the Plaintiff seeks is to amend that Writ and Indorsement of Claim deleting the English and putting it in Chinese.

7. I must say that at first glance, it proved very difficult to read, even for a bilingual reader, and it would appear to me that the nature of the amendment (if it is allowed) is such that the Plaintiff ought to proceed as per the notes to Order 20 Rule 10(1), in other words, to have the amended Writ re-issued and marked "re-issued on amendment" and to have the original writ marked "superseded on amendment" so that whoever has to read this amended Writ would be able to do so easier.

8. The Master's query, appearing from his notes, was as to his jurisdiction to amend in Chinese a writ which was issued in English. That may be a reference to Rule 4(1) of the High Court Civil Procedure (Use of Language) Rules, which is subsidiary legislation to the Official Languages Ordinance Cap. 5. Rule 4(1) provides that any document which is required by any ordinance to be filed in the Court for the purposes of any proceedings may be in "either" of the official languages. It may have been the case that the Master was concerned that this document which was in English is being sought to be amended in Chinese, so that it would not be in "either" of the official languages, but in "both" of the official languages.

9. In my view, one must give a fair and wide interpretation to subsidiary legislation which is meant to facilitate the use of both English and Chinese as official languages in Hong Kong pursuant to the Official Languages Ordinance Cap. 5. In my view, Rule 4(1) would not be offended in this case because what is sought is that the entirety of the original Writ and Indorsement of Claim in English would be crossed out, and the new amended Writ and Indorsement of Claim would be entirely in the Chinese language, and therefore, giving Rule 4(1) a fair and broad meaning, I find that there is jurisdiction to permit the Writ and Indorsement of Claim originally in English to be amended in Chinese.

10. Therefore, I would allow the appeal and I would give an order in terms of paragraph 8 of the summons. Paragraph 9 appears to be otiose in that an order of the court does not need to be made in relation to the matters sought in paragraph 9. However, I accept Mr. Chow's submission that it may be convenient and desirable to actually have an order in terms of paragraph 9 to provide some guidance to the Registry. I will now hear the parties as to costs.