Telings International Hong Kong Ltd v. John Ho and Others

CACV 10/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 10 OF 2010

(ON APPEAL FROM HIGH COURT ACTION NO. 2114 of 2005)

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Coram : Before Mr. Registrar K.W. Lung in Chambers

Date of Hearing :   12 August 2010

Date of Handing Down Reasons for Decision  : 12 August 2010

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Reasons for Decision

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1.This is an application from the appellants for directions that both parties should come to an agreed translation of the transcript of proceedings as set out in the summons pursuant to Order 59 rule 9(3) of the RHC.

2.Mrs. d’Almada Remedios, counsel, acts for the appellants and Mr. I. Chan, counsel, acts for the respondent, which is the plaintiff in the Action.

3.I am given to understand by counsel that the appeal has been set down to be heard on 16 September 2010 for 2 days and the deadline for the appellant to lodge the appeal bundles is on 2 September 2010.

4.The appellants wish to refer to certain transcripts (in Chinese) of the evidence of the defence witnesses at the trial.  They have selected such parts that they consider relevant themselves and are having the transcripts translated into English.  There are altogether 250 pages.  According to Mrs. Remedios, the translation will only complete at the end of August 2010.  However, there is simply not enough time for certification by the court interpreters of the translation.  Without certification of the translation, such translated transcripts will not be accepted by the Court of Appeal as evidence without special leave from the Court of Appeal.  The appellants have tried to obtain consent from the respondent to agree to the translation of the transcripts without certification.  The respondent has refused to do so.  It further imposes a condition that the appellants should put in the full transcript of the 2^nd defendant’s evidence, otherwise it will not give its consent.

5.I have asked counsel what order should I make to deal with their disputes, knowing well that this court simply has not power to order the respondent to give consent, against its own wish, to the translation without certification.

6.Mrs. Remedios suggests that I should ask the respondent to confirm that it will agree the translation without certification, giving them time to consider the translation as soon as it is available.  But the appellants will proceed with the appeal even if the respondent refuses to give the consent.  The appellants fully understand that the Court of Appeal may refuse to accept the transcripts as evidence without certification.  Mrs. Remedios says that the appellants are ready to take such risk as those transcripts are subsidiary evidence, the main evidence being the documentary evidence.

7.Mr. Chan now accepts that the respondent will not insist on having the full transcript of 2^nd defendant for their consideration of giving consent to the translation being admitted as evidence without certification provided that it is given sufficient time, which Mr. Chan proposes 14 days from the date hereof, to consider the translation.  Mr. Chan further submits that the respondent is keen to have the appeal heard by the Court of Appeal as soon as possible.

8.Both counsel say that they will not apply to the court to vacate the hearing because of the transcripts.

9.Mrs. Remedios has no objection to this timetable of providing the translation to the respondent.

10.I shall therefore make an order in the following terms:

a)  The appellants shall supply the respondent with translation of the transcripts as set out in this summons by 26 August 2010;

b) The respondent shall, within 7 days upon receipt of the translation, confirm in writing to the appellant whether it agrees that the translated transcripts can be admitted as evidence without certification;

c) If the respondent agrees part of the translated transcripts, but not the whole, the respondent shall within the same period, confirm in writing to the appellants such parts of the translated transcripts that they agree to be admitted as evidence without certification and which parts they do not agree; such parts not agreed shall be put into another bundle properly labeled for the Court of Appeal.

d) Costs of this application, including the costs of today’s hearing be in the cause of the appeal (with a certificate for counsel).

Mrs. Lisa d’Almede Remedios instructed by Messrs. John Ku & Co. for 1^st and 2^nd Defendants.

Mr. Isaac C.K. Chan instructed by Messrs. Yu, Tsang & Loong for Plaintiff.