PLC Paper No. CB(2)222
(These minutes have been seen
by the Administration and cleared
with the Chairman)
Ref : CB2/PL/AJLS
LegCo Panel on
Administration of Justice and Legal Services
Minutes of the Special Meeting
held on Saturday, 26 April 1997 at 9:00 am
in Conference Room A of the Legislative Council Building
Members Present :
Hon Margaret NG (Chairman)
Hon Andrew CHENG Kar-foo (Deputy Chairman)
Hon Martin LEE Chu-ming, QC, JP
Hon Emily LAU Wai-hing
Hon Albert HO Chun-yan
Members Absent :
Hon Ronald ARCULLI, OBE, JP
Mrs Mrs Miriam LAU Kin-yee, OBE, JP
Hon Eric LI Ka-cheung, OBE, JP
Hon James TO Kun-sun
Dr Hon Philip WONG Yu-hong
Hon David CHU Yu-lin
Hon Ambrose LAU Hon-chuen, JP
Hon Bruce LIU Sing-lee
Public Officers Attending :
- Attorney Generals Chambers
- Mr Tony YEN, JP
- Law Draftsman
- Mr Harry MACLEOD
- Deputy Crown Prosecutor
- Mr Kenneth YUEN
- Deputy Solicitor General (Acting)
- Judiciary Administrators Office
- Ms Alice TAI, JP
- Judiciary Administrator
- Mr David LEUNG
- Assistant Judiciary Administrator
- Administration Wing of the Chief Secretarys Office
- Mr Stephen FISHER
- Assistant Director of Administration
Attendance by Invitation :
- Hong Kong Bar Association
- Ms Audrey EU, QC, JP
- Mr Alan LEONG
- Council Member
- Mr Philip DYKES
- Council Member
- Mr Graham HARRIS
- Member of the Special Committee
on Criminal Law and Procedure
- Law Society of Hong Kong
- Mr Christopher CHAN
- Mr Vincent LIANG
- Mr Stephen HUNG
- Member of the Criminal Law & Procedure Committee
- Faculty of Law of the University of Hong Kong
- Mr Eric CHEUNG Tat-ming
- Ms Janice M BRABYN
Clerk in Attendance :
- Ms Doris CHAN
- Chief Assistant Secretary (2)3
Staff in Attendance :
- Mr Jimmy MA
- Legal Adviser
- Miss Flora TAI
- Senior Assistant Secretary (2)3
Use of Chinese in courts : progress of work
The minutes of the special meeting held on 3 March 1997 had been issued to members vide LegCo Paper No. CB(2) 1962/96-97 on 22 April 1997. No amendment was received and the minutes were confirmed.
II.Meeting with representatives from the Administration, the Judiciary, the legal profession, and the tertiary institutions
2. The Chairman welcomed representatives from the Administration, the Judiciary, the legal profession, and the University of Hong Kong to attend the meeting. The meeting then proceeded to review the progress in implementing use of Chinese in courts. The gist of the ensuing discussion is summarized in the following paragraphs.
Efforts made by the two branches of the legal profession on promoting use of Chinese in courts
3. At the invitation of the Chairman, Mr Alan LEONG briefed members on the paper entitled "Bilingualism - The Bars Update" provided by the Hong Kong Bar Association (the Bar) which had been issued vide LegCo Paper No. CB(2) 2030/96-97. Ms Audrey EU remarked that it was unfair to say that the Bar had not done much on promoting the use of Chinese in courts during the past years. Members noted that the Bar and the Law Society of Hong Kong (the Law Society) had set up a committee in 1988 chaired by Mr Ambrose LAU, the chairman of the Law Society at that time (the Committee) to study the way forward in implementing the recommendations made by the committee appointed by the then Chief Justice to study the prospects of using more Chinese in court proceedings. The Committee had proposed to conduct courses for legal professionals so that they could accustom to using Chinese in courts. Yet, no concrete work had been done probably because it was considered not urgent to do so at that time. Mr LEONG admitted that the pace had not been very satisfactory during the period between 1987 and 1994. He reiterated that it was very difficult for the legal profession to complement the Administrations effort without a clear policy of the Administration.
4. Mr Alan LEONG said that the Bar had always advocated a true bilingual court system where both parties would be at liberty to use either English or Chinese during court proceedings. Given the pace in implementing bilingualism in the past few years, the Bar was concerned that the trend had moved towards greater use of Chinese in courts which deviated from the Bars position. The Bar therefore considered that there was a need to set up the Special Committee on Bilingualism in the Law (the Special Committee) in order to review the situation and to advise the Bar Council on what to adopt as the policy on bilingualizing the legal system, having regard to the long term interest of Hong Kong, the impact on the quality of judicial service and the resources implications. He informed members that the Special Committee had gathered feedbacks from barristers about use of Chinese in courts. There were clear messages that: (a) there was no urgent need to greater use of Chinese in courts hastily without having carefully considered the long-term implications of the matter; (b) it might be useful if the Judges summing up was delivered in Chinese to facilitate jurors understanding but it did not mean that the whole proceedings had to be conducted in Chinese; and (c) there was no urgent need to conduct civil cases in Chinese. In response to the Chairmans enquiry about the studies and researches to be conducted, Mr LEONG explained that the Bar would: (a) communicate with barristers in Singapore and Malaysia which had experience in implementing a bilingual legal system; and (b) seek assistance from experts in the field of designing questionnaires and try to ascertain resources in conducting the survey.
5. At the invitation of the Chairman, Mr Christopher CHAN informed members that the Law Society had also been involved in various committees in relation to bilingualizing the legal system. He pointed out that the City University of Hong Kong, as appointed by the Law Society, was in the progress of analyzing the data of the survey on the multi-faceted problems involved in the process of transformation from monolingualism to a bilingual legal system. However, some preliminary results of the survey could be released as follows: (a) 80 % of solicitors surveyed feared that a greater use of Chinese in written communication would make them less efficient; (b) 60 % said that greater use of Chinese in written communication would affect their work quality; (c) 53 % were satisfied but about 40 percent were dissatisfied with the official translation of laws; and (d) 42 % had doubts as to whether judges would be capable of conducting trials in Chinese. Mr CHAN remarked that the results were quite alarming and therefore more in-depth surveys should be conducted in determining the way forward in implementing a bilingual legal system. Mr Vincent LIANG supplemented that the Civil Litigation Committee and Criminal Law Committee of the Law Society would study the issue of use of Chinese in courts and would report to members in due course. Messrs Martin LEE and Albert HO said that the feedbacks were not surprising in the light that legal professionals were not accustomed to using Chinese in their practice. The Chairman then asked and Mr LIANG estimated that the report might be completed in one months time. The Chairman urged the Law Society to forward the report to the Panel once it was available. In this regard, Mr Tony YEN pointed out that he was informed that dissatisfaction of the solicitors surveyed was mainly about difficulties in comprehending new terms and the fluency of language. Very few actually expressed dissatisfaction with the legal accuracy of the translation. He explained that it was very difficult to produce a fluent version of the translation because: (a) the translators had to be bound by the original language of the legislation; and (b) very old style of English was used in many ordinances. Mr YEN informed members that the Legal Department was planning to embark on a comprehensive review of statutory laws with a view to rewriting the laws in modern language. It would be a very time-consuming process because utmost care would be needed in order not to affect the accuracy in the course of rewriting. He appealed to the support from the legal profession, the Judiciary and the tertiary institutions in accomplishing the task. In this connection, Mr Philip DKYES said that he had urged that the Magistrates Ordinance (Cap. 227) be put into modern language over ten years ago. He therefore welcomed the Administrations plan.
Section 9 of the Basic Law (BL 9)
6. Mr Albert HO asked whether BL 9 had conferred a constitutional right on every citizen to use Chinese in courts as the interpretation would affect the timetable in implementing a bilingual court system. Mr Philip DYKES responded at the invitation of the Chairman that it was difficult to give a conclusive answer. However, the question at stake would be whether or not an individual could have a fair trial, no matter in what language the proceedings were to be conducted. A party of the trial might be justified to insist on the right to use Chinese if it was a simple and factual case before the Magistrate Court or the District Court. However, asserting such a right in private litigation might infringe the other partys right to a fair trial because: (a) the other party would have to bear all the expenses in translating the documents; and (b) the other party might prefer to use English. Mr DYKES reminded members that BL 9 conferred a right on both parties to the court proceedings to use either English and Chinese in courts. In this connection, Ms Audrey EU cautioned that a party to the court proceedings might be able to use any dialect, irrespective of the environment, if BL 9 was considered conferring a unconditional right on an individual to use Chinese or English. The Chairman then asked and Mr Stephen FISHER said that he was unable to confirm the final stance of the Administration on the matter without seeking legal opinion. To his understanding, the language of the court was to be determined by the judge whose decision was final even though BL 9 specified that either English or Chinese could be used in courts.
Efforts made by the Government in implementing a bilingual court system
7. Mr Albert HO was of the view that implementation of a bilingual court system was the responsibility of the Government. He pointed out that the pace in this respect was far too slow during the period from 1984 to 1992. Mr HO remarked that the target to achieve a bilingual court system should not be queried even though the means to achieve such a target might need to be re-visited because the right to use either English or Chinese as an official language in courts had been prescribed in the Sino-British Joint Declaration and the Basic Law. He agreed with the Bar that there should be a balanced use of English and Chinese in courts. Greater efforts would be required to change the habit of the legal practitioners who had been used to using English which was the language of training in law. However, Mr Martin LEE remarked that the result might not be satisfactory if bilingualism was to be implemented hastily. The Government must take the lead in moving forward.
8. In response to members enquiries about the glossary of terms and phrases commonly used in courts being produced by the Court Interpreters Service in the Judiciary (the glossary), Ms Alice TAI explained that although the original purpose of producing such a glossary was for internal use only, it was subsequently decided that it should be shared with fellow legal professionals. Arrangement had therefore been made with the Law Society that it would be published on a topical basis in its monthly bulletin entitled "Hong Kong Lawyer". The glossary was a loose-leaf edition on different areas of laws. The parts on Criminal Law and Family Law had been completed and work on Law of the Land was in progress. Copies would also be issued to each registered lawyer in Hong Kong. The Chairman opined that better co-ordination would be required so that there would be cross fertilization of ideas among the Administration, the Judiciary and the legal profession, resulting in a common language for the whole legal system. Ms TAI pointed out that the Judiciary was not the appropriate body to co-ordinate the matter. They could only work within their parameters and to serve the Judiciary. However, she agreed that there might be a need for overall co-ordination. Mr Tony YEN added that the English-Chinese Glossary of Legal Terms produced by the Legal Department was only about terms used in statutory laws but an ideal glossary should cover phrases and expressions in the common law. The Legal Department welcomed the opportunity to work jointly with the Judiciary in producing such a glossary.
9. Mr Eric CHEUNG suggested that an ad hoc committee could be formed with representatives from the Legal Department, the Judiciary, the legal profession and relevant tertiary institutions so that inputs from different parties could be collected in the process of compiling the glossary. Ms Janice BRABYN also supported the proposal. The Chairman therefore asked and Ms Alice TAI reiterated that the immediate task for the Judiciary was to produce the glossary in order to help all officers connected with the court to have a consistent glossary to handle use of Chinese in courts by 1 July 1997. However, she would relay the proposal to the Judiciary. For discussion at the next meeting, the Chairman suggested that: (a) the Judiciary Administrator should provide a paper on the progress in producing the glossary and the problems anticipated if there was participation from professional bodies in the process; and (b) the legal profession should indicate whether they wished to participate in the process, and if yes, what would be the desirable form of participation.
the Law Society
10. In view of the concerns among legal professionals about the pace and the present track in implementing a bilingual court system, Ms Emily LAU asked whether the Administration could consider conducting a review of the situation. Mr Stephen FISHER informed members that the Steering Committee on the Use of Chinese in Courts (the Steering Committee) had already been monitoring the progress in inplementing use of Chinese in courts. Members remarked that the scope of its terms of reference was too narrow and a higher level mechanism would be necessary. Members were of the view that substantial and long-term commitment in terms of resources and a systematic approach in implementing the policy of bilingualism were essential. There was a need for a mechanism to be set up to deal with the wider issue of policy as soon as possible to co-ordinate the efforts of all parties concerned and to oversee and facilitate the implementation of the policy of bilingualism. At members suggestion, the Chairman undertook to write, on behalf of the Panel, to the Chief Secretary regarding the proposal.
(Post-meeting note : The Chairmans letter of 5 May 1997 to the Chief Secretary and the Chief Secretarys interim reply have been issued to members vide LegCo Paper No. CB(2) 2214/96-97 on 9 May 1997.)
Section 10B of the Interpretation and General Clauses Ordinance (Cap. 1)
11. Members noted the paper on section 10B of the Interpretation and General Clauses Ordinance (Cap. 1) (the Ordinance) prepared by the Law Drafting Division of the Legal Department which had been issued vide LegCo Paper No. CB(2) 2028/96-97. Mr Tony YEN reiterated that the paper which represented the opinion of the Attorney Generals Chambers was an attempt to set out how section 10B should be interpreted and how it should apply in case of discrepancy between the English and the Chinese texts of a piece of legislation. With reference to the last sentence of paragraph 3.3 of the paper, i.e. "Given that both language texts of our statutes are part of the governing law, the court should be seen as no less competent in determining the legal meaning of a term in the Chinese text than one in the English text", Ms Emily LAU asked whether it would imply that all judges had to be bilingual. Mr YEN cautioned that it was only a broad statement of the AGCs view that judges in general should be able to do so. Ms LAU then queried how a judge who was English-speaking only could deal with controversy over the legal meaning of a term in the Chinese text of an ordinance during the court proceedings which was conducted in English. Mr YEN responded that an English-speaking judge had to listen to representations of both parties before forming a view on the meaning and interpretation of a certain part of that ordinance. Assistance from linguistic experts on the literal meaning of a term could be sought if appropriate. Mr Albert HO remarked that the primary task of a judge was to interpret the statute and it was not right for a judge to rely on a linguistic expert. In this connection, Mr Eric CHEUNG said that he tended to agree with Mr YENs view. He explained that such a scenario could happen in other jurisdictions such as Canada where both English and French were the official languages. The normal practice was to allow linguistic experts to give advice on the literal meaning of a term. There was no question of having an expert interpreting the laws. Mr Andrew CHENG shared a similar view because a judge might need expert advice to form a basis for his interpretation of the law. However, Mr Philip DYKES held a different view. He pointed out that it was the duty of the judge to interpret the laws and the judge should be functionally literate in both English and Chinese in such a case so that the judge could invoke section 10B in order to arrive at a proper construction of the term. It would be desirable to plan ahead during the listing of cases so that a monolingual judge would not be presiding a case in which controversies over discrepancy between Chinese and English texts were anticipated.
13. The Chairman then asked and Legal Adviser explained that the Ordinance had two assumptions, namely both the Chinese and English texts carried the same meaning and enjoyed the same status. In case of discrepancy, section 10B(3) could be invoked to reconcile the difference, having regard to the object and purposes of the statue. However, the judge was the only person given the right and duty to interpret the law and it would be ideal to have a bilingual judge. If a judge considered himself unable to conduct the trial in a fair manner, he could withdraw from the trial and the parties to a litigation could also appeal if they were not satisfied. The Chairman agreed that options were available to deal with the situation as the judge was only required to listen to the representations of both parties under the common law system and the judge was entitled to call for expert advice. It did not mean that the linguistic expert would pass judgement on behalf of the judge. The court should therefore issue instructions to all parties concerned in a trial that any party who wished to raise any points about discrepancy between the two texts should notify all other parties in advance. At Ms Alice TAIs suggestion, the Chairman asked and Mr Alan LEONG agreed to reflect all these points at the next meeting of the Steering Committee with a view to drawing up an instruction which was acceptable to the court and the legal profession.
III.Date of next meeting
14. Members agreed to schedule another meeting for Monday, 2 June 1997 at 4:30 pm to discuss the matter of co-ordination and to conclude discussion on the use of Chinese in courts
15. The meeting ended at 11:15 am.
19 May 1997
Last Updated on 20 October 1997