True One Design & Decoration Co Ltd v. Ho Po Yin

DCCJ304/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 304 OF 2015

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DECISION

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1.The present action concerns a dispute over the payment for some household renovation work. This is an interlocutory hearing on the plaintiff’s application filed on 5 May 2015 for an order requesting the defendant to provide English translation for her defence and counterclaim.

2.On 22 January 2015, the plaintiff commenced proceedings in DCCJ 304/2015 to recover an unpaid amount of some HKD 200,000 for some renovation work done by it for the defendant.  The writ of summons and statement of claim were prepared in English.

3.On 24 April 2015, the defendant filed a 13 page defence and counterclaim primarily in Chinese, with some English phrases for the purpose of identifying the work items and individuals involved in the dispute, as well as citing one original statement from the statement of claim.

The plaintiff’s arguments

4.Mr Lai for the plaintiff acknowledges that his client would not be prejudiced due to unfamiliarity of the other language under Rule 3(7) of the District Court Civil Procedure (General) (Use of Language) Rules (Cap 5A).  He relies on Order 1B, rule 1(2)(l) of the Rules of the District Court (Cap 366H) on the court’s case management power to make orders “for the purpose of managing the case and furthering the underlying objectives set out in Order 1A”.  In particular, he argues that the objective under Order 1A r 1(b) to “ensure that a case is dealt with as expeditiously as is reasonably practicable” can be achieved by the translation of the defence and counterclaim into English.

5.Mr Lai cites the following cases to support his argument that maintaining language consistency in pleadings is a good case management practice allowing the court to deal with cases expeditiously:-

“Cheung Kong (Holdings) Ltd v Chan Wai Yip [2001] HKEC 307;

Yip Kee Wai v So Kim Wah [2010] 5 HKLRD 440; and

Grant Thornton International Ltd v Tang Chung Wah [2013] HKEC 1070.”

6.Mr Lai places heavy reliance on the ruling of Registrar Lung in para 18 of Yip Kee Wai where he discouraged the use of both official languages in pleadings:-

“…… this practice should not be encouraged as this would tie the Court’s hands when it came to the stage of setting down and the Court would have to assign a bilingual judge for the matter though the case might not require a bilingual judge. The parties should appreciate that the requirement of bilingual judge should be a necessity rather than a matter of convenience or preference only since this Court has the duty to ensure that the resources of the court are distributed fairly under O.1A r.1(f) of the Rules of the High Court (Cap. 4A, Sub. Leg.).”

7.Mr Lai also relies on the ruling of Waung J in Cheung Kong (Holdings) Ltd:-

“…… as a matter of good case management of the court system, where cases can go to various judges (some who are not bilingual) from time to time, as well as for the proper joining and clarification of issues, English translations of these important statements should be ordered. Translation, very often, would highlight the crucial differences between the parties especially when there is a dispute, and translations would allow the court system to operate smoothly so that any judge (whether bilingual or not) taking up the matter at the interlocutory stage would be able to quickly deal with it.”

8.In essence, Mr Lai relies on the above cases to show that the use of both official languages in pleadings would create “chaos” and tie the court’s hands in assigning bilingual judges to the present case.  Mr Lai also argues that he would have to file his reply to defence and defence to counterclaim in mixed official languages when quoting the contents from the defence and counterclaim filed by the defendant.  

The defendant’s arguments

9.In response, Mr Wong for defendant argues that the subject matter in the present case is best described in Chinese.  Most of the documents, including the quotation (which defines the renovation work to be done) and WhatsApp correspondences between the parties, are originally written in Chinese.

10.Mr Wong differentiates the present case from Grant Thornton International Limited and Cheung Kong (Holdings) Ltd on their different nature.  He points out that the present case does not require complex analysis on legal issues and most of the issues in dispute are questions of fact as to whether the plaintiff had completed the renovation work in the quotation properly. 

11.Mr Wong also mentions that the defendant would make her witness statement in Chinese.  He acknowledges that his client could read simple English, but it would be much more convenient and effective for her to use Chinese in the pleadings.

12.Mr Wong argues that it is likely that the trial of the present case may go before a bilingual judge.  His major concern is that substantial cost for translation of all documents and correspondences for the present case would be incurred unnecessarily.

Discussion

13.Registrar Lung’s ruling in Yip Kee Wai is highly persuasive.  Yet as a matter of case management, the circumstances of each case must be considered individually.  Yip Kee Wai differs significantly from the present case in that it concerns a dispute arising from joint venture agreement and settlement agreement to build a village home.  The sum claimed by the plaintiff in that case was about $3 million.  In contrast, the present case is a relatively simple one with a modest amount of claim (HK$200,000) and counter-claim (HK$100,000).  The dispute is whether certain renovation work had been done properly.  It is unlikely that it would involve interpretation of complicated legal documents or arguments over intricate legal issues.

14.As regards the Cheung Kong (Holdings) Limited case, the quotation cited by Mr Lai should be read as a whole with preceding paragraphs:-

“The resistance is put very attractively on this basis: in defamation cases, very often the judge or the jury would tend to be bilingual, and therefore why should the defendant burden unnecessarily everyone with English translations and with a lot of time and expenses involved in providing English translation which might even form the subject of translation dispute.

This Action is somewhat unusual case where, I suspect, and I think Mr. Lee has confirmed my suspicion today, that there may be considerably further interlocutory battles to be done between the parties.”

15.Hence it seems that the “considerably further interlocutory battles” feature importantly in Waung J’s decision.  In fact, Waung J also acknowledged that the tendency of assigning bilingual judges in defamation case is an attractive argument to avoid unnecessary expenses and disputes arising from translation.

16.Mr Lai suggested that there might be further interlocutory applications in the present action.  I doubt very much and in any event I would strongly discourage the parties from doing so.

17.In para 27 of the Grant Thornton case, Yuen JA also indicated the importance to consider whether undue burden would be imposed on the defendants before granting her direction for the translation of the defence and counterclaim into English.  The defence and counterclaim in the present action consists of 13 pages contrasted with only 2 pages in Grant Thornton.  Also, in Grant Thornton, some of the parties do not read Chinese.

18.In fact, all the above cases differ from the present one in a significant aspect: this case is a District Court case.  In the District Court the great majority of the judges and masters are bilingual.  The concern about tying the court’s hands in assigning judges or delay caused by queuing for a bilingual judge carries much less weight than in the High Court.  Whilst the learned Registrar is certainly right in reminding practitioners about the efficient use of the court’s resources, it should also not be forgotten that the courts primarily exist to serve the litigants, not the other way round.  Having read the pleadings filed so far, I do not have any difficulty and do not find that I require any extra effort to comprehend the issues between the parties just because of the use of Chinese by the defendant.  When I asked Mr Lai to give me concrete examples of prejudice or confusion that have been caused by the use of both official languages, he struggled to give me any. His suggestion that the judiciary may appoint more monolingual District Judges before this action would be heard merely shows how weak his case is.

19.Order 1A r 1(a) of the Rules of The District Court also identifies “to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court” as one of its underlying objectives.  Whilst the use of both official languages in the pleadings may be aesthetically undesirable, I prefer to put more weight on the convenience to the parties and the cost-effectiveness of the proceedings.  As such, I see no justification in forcing the defendant to incur substantial costs to translate the defence and counterclaim as well as other Chinese documents into English, not when the plaintiff fails to identify any concrete prejudice or confusion caused by the use of Chinese by the defendant.

Conclusion

20.For the above reasons, I dismiss the plaintiff’s application and order it to pay costs to the defendant assessed at HK$28,000.

Mr E Lai, of Lam and Lai, for the plaintiff

Mr TC Wong, of CW Chan & Co, for the defendant