LegCo Paper No.CB(2)623/96-97 (These minutes have been seen
by the Administration)

LegCo Panel on Administration of Justice and Legal Services

Minutes of the Special Meeting held on Saturday, 26 October 1996 at 9:00 am in Conference Room B of the Legislative Council Building

Members Present :
    Hon Margaret NG (Chairman)
    Hon Martin LEE Chu-ming, QC, JP
    Hon Ronald ARCULLI, OBE, JP
    Hon Mrs Miriam LAU Kin-yee, OBE, JP
    Hon Emily LAU Wai-hing
    Hon Albert HO Chun-yan
    Hon Ambrose LAU Hon-chuen, JP
    Hon Bruce LIU Sing-lee
Members Absent :
    Hon Andrew CHENG Kar-foo (Deputy Chairman)*
    Hon Eric LI Ka-cheung, OBE, JP*
    Hon James TO Kun-sun*
    Dr Hon Philip WONG Yu-hong*
    Hon David CHU Yu-lin*
Public Officers Attending : Attorney General's Chambers
    Tony YEN, JP
    Law Draftsman
    Deputy Law Officer
    Mr Harry MACLEOD
    Deputy Crown Prosecutor
Judiciary Administrator's Office
    Ms Alice TAI, JP
    Judiciary Administrator
    Mrs Susan MAK
    Assistant Judiciary Administrator
Administration's Wing of the Chief Secretary Office
    Mr Stephen FISHER
    Assistant Director of Administration
Attendance by Invitation :
Hong Kong Bar Association
    Ms Audrey EU, QC
    Mr Lawrence LOK, QC
    Council Member
Law Society of Hong Kong
    Mr Christopher CHAN
    Mr Vincent LIANG
    Mr Stephen HUNG
    Member of the Criminal Law & Procedure Committee
Clerk in Attendance :
    Mrs Betty LEUNG
    Chief Assistant Secretary (2) 3
Staff in Attendance :
    Mr Jimmy MA
    Legal Adviser
    Mr Arthur CHEUNG
    Assistant Legal Adviser 5
    Miss Flora TAI
    Senior Assistant Secretary (2) 3

Use of Chinese in Courts : the target date and the preparatory work

(Relevant papers are:
- LegCo Paper No. CB(2) 231/96-97 attaching an information paper from the AGC
- LegCo Paper No. CB(2) 239/96-97 attaching a paper from the Judiciary Administrator)

I. Meeting with representatives of the Administration, the Judiciary and the legal profession

The Chairman welcomed representatives from the Administration, the Judiciary and the legal profession to attend the meeting on the use of Chinese in courts. The meeting then discussed the preparatory work, the target date and problems for the use of Chinese in court. Members and legal professionals raised a number of questions and concerns. The Chairman then invited representatives of the Administration and the Judiciary to respond accordingly. The gist of the discussion is summarised in the following paragraphs.

Preparatory work

2. Mr Tony YEN assured Members that the preparatory work for the use of Chinese in courts would be done steadily and gradually. He informed the meeting that various parties had been working for the wider use of Chinese in courts. They included: (a) the Legal Department, its work had been set out in the information paper; (b) both the University of Hong Kong and the Chinese University of Hong Kong which had conducted courses on the use of Chinese in laws; (c) the City University of Hong Kong which was compiling an outline on common law in force in Hong Kong; (d) the Law Society of Hong Kong (the Law Society) and the Advocacy Institute of Hong Kong which were organising courses on the use of Chinese in laws; and (e) members of the legal profession who had actively participated in the Bilingual Laws Advisory Committee and the Steering Committee on the Use of Chinese in Courts. At the Chairman's suggestion, Mr YEN undertook to consider publishing a Chinese-English glossary of authentic Chinese texts, and he said he would welcome suggestion from the legal profession, tertiary institutions and the Judiciary.

3. Ms Alice TAI stressed that the Judiciary was committed to the use of Chinese in courts because (a) Chinese would be an official language in all courts on 1 July 1997; and (b) restricting the use of Chinese in courts after 1 July 1997 would contravene Article 9 of the Basic Law. It was the objective of the Judiciary to provide a framework whereby a party wishing to conduct his case in either official language could apply to do so at all levels of court.

4. Mr Christopher CHAN said that the pursuit of using Chinese in courts should be the ultimate objective, and the activity should in the meantime be proceeded with care because there would be numerous difficulties involved if Chinese was to be used in courts as the main language. The Government should put in more resources and take the lead in creating a bi-lingual environment. Mr Vincent LIANG informed the meeting that the Law Society had recently set up a task force to look into bi-lingualism in courts. He also suggested that (a) more reference books for drafting documents in Chinese should be published; (b) commonly used legal documents should be translated into Chinese; and (c) law students should be required to pass an examination in the use of Chinese language in law before they could become lawyers. In this connection, the Chairman suggested that the use of Chinese by barristers and solicitors would form an issue for future discussion.

5. Mr Albert HO expressed dissatisfaction at the slow progress made by the Administration and the Judiciary on the use of Chinese in courts despite the fact that the right to use either English or Chinese as an official language in courts had been prescribed in the Sino-British Joint Declaration since 1984.

A bi-lingual court system

6. At the invitation of the Chairman, Ms Audrey EU asked whether bi-lingualism meant that either one language (be it English or Chinese) or the mix of both languages could be used, for and in any case. Mr R ALLCOCK said that section 5 of the Official Languages Ordinance (Cap. 5) provided the legal framework for Chinese to be used in courts, and provided for a judge, a magistrate or other judicial officers to use either or both of the official languages in any proceedings or a part of any proceedings as he thought fit. A party to or a witness in any proceedings or a part of any proceedings might still address the court or testify in either or both of the official languages or any language. The Chairman asked and Mr ALLCOCK confirmed that it was the long-term policy for either Chinese or English to be used in courts. As regards the present practice in courts, Ms Alice TAI pointed out that when the accused requested the case to be conducted in Chinese, the judge would consider the views of the defendant and that of their legal representatives, the complexity of the case and the volume of court papers to be translated. The guiding consideration in the choice of language should be to ensure the just and expeditious disposal of the case. If it was decided that Chinese should be used for a case but a non-Chinese speaking party was involved, interpretation facilities would then be provided. The Chinese record would be the official authentic record of that case. Mr Ronald ARCULLI opined that all law students should be trained bi-lingually in order to achieve a bi-lingual legal system. A twin system should only be a transitional arrangement.

7. Ms Audrey EU queried how a judge could decide on what language to use if there was disagreement over it. She expressed grave concern that the legal practitioners who were not bi-lingual would be driven out of practice Mr Lawrence LOK added that about 60% of the criminal lawyers were not proficient in Chinese. He worried that the rights of an accused would be compromised if he/she appointed a non-Chinese speaking lawyer to represent him. He was also concerned that there were judges who could command English only and could not conduct hearings in Chinese. At the invitation of the Chairman, Ms Alice TAI pointed out that the existing system allowed for the use of Chinese in a hearing when all parties were agreeable to the choice. She added that about half of the 11 bilingual High Court Judges would be comfortable in conducting cases in Chinese. Of the 11 judges, two specialised in civil cases, two in criminal cases, whilst the rest would be able to do both. Mr Ronald ARCULLI then said the Court of Final Appeal could experience a language problem in view of the ratio of four to one for local and foreign judges.

8. As regards the actual operation in court, Mr Stephen HUNG said that although Chinese was used more often in Magistracies, lawyers would use English in the submissions in order to facilitate the delivery of judgement by the magistrate. Two languages were used because of the tight time schedule, as summary procedures were used in the Magistracies. He then asked through the Chairman how many cases in District Courts had been conducted in Chinese so far. Ms Alice TAI undertook to provide the details later.

(Post-meeting notes : Judiciary Administrator provided the required information in her letter dated 8 November 1996 which was issued to members vide LegCo Paper No. CB(2) 417/96-97 on 13 November 1996.)

Judiciary Administrator

9. Ms Audrey EU held the view that both Chinese and English should be allowed at the same hearing if interpretation service was available, provided that both languages were not used in the same sentence. She reckoned that it was the only best possible way to take the issue forward, although it might be costly. She added that bi-lingual transcript could be prepared.

10. Ms Emily LAU worried that the court proceedings would be unduly lengthened if there was disagreement over the language to be used in court and Chinese version of case laws were to be cited. Ms Alice TAI agreed with her that it was possible that court proceedings might take longer when counsel took issue with a particular interpretation used. In this regard, Ms LAU expressed concern that injustice would arise if law was made too expensive for the general public because of prolonged court proceedings.

11. Ms Emily LAU held the view that there should be a measure to ensure that lawyers who could speak English only could continue to practise in a bi-lingual court system. Mr Tony YEN said that there was no intention to drive away mono-lingual lawyers since bi-lingualism was only to provide an additional choice of language in courts.

Amendments to the Jury Ordinance (Cap. 3)

12. Ms Emily LAU asked whether there would be two lists of jurors, drawn up according to language ability, if Chinese was introduced in courts. Ms Alice TAI replied that the Judiciary had no plans to operate separate lists of jurors based on language ability. Jurors of a case would be chosen according to their language ability and the language by which the case would be conducted. When a person was selected but felt uncomfortable that he had the necessary language competency to serve as a juror, the person could ask for exemption. The Chairman suggested and Members agreed to discuss the concern of Ms Audrey EU regarding whether such arrangement would actually amount to more than one list of jurors at a later meeting.

13. Regarding Ms Audrey EU's other question of how the Jury Ordinance would be amended to facilitate the use of Chinese in courts, Ms Alice TAI replied at the invitation of the Chairman that an amendment to the Ordinance was sought to the effect that the qualifying criteria of an juror should include a language competency of either the English or Chinese language. She added that the Judiciary had expressed views on the proposed amendments to the Administration who was taking lead on the exercise.Adm

Discrepancies between English and Chinese texts

14. In response to Members' concerns over the problems arising from discrepancies between English and Chinese texts and the common law precedents being in English, Ms Alice TAI explained that the judge had to make reference to the purposes and functions of the ordinance if there was a discrepancy between the two authentic versions before he/she formed a view on the meaning and interpretation of a certain part of that ordinance. Mr Tony YEN added that it was foreseen that there would be problems since the two texts could not be identical to the smallest detail. Section 10B of the Interpretation and General Clauses Ordinance (Cap. 1) had to be invoked if there was discrepancy. Section 10C of that Ordinance also provided for an expression of the common law term to be construed in accordance with the common law meaning of that expression, no matter it was in Chinese or in English. However, the Chairman took the view that it would be extremely difficult to equate a Chinese term with one in English, if it had never appeared in English documentation. She then queried how the rights of a mono-lingual person would be protected. Mr YEN said that the judge could always make reference to case laws. If it was a technical term, the judge should refer to the actual section of the ordinance for a judicial interpretation. Although there were two languages, the spirit and the system of common law remained the same. In this regard, Mr Albert HO took the view that bi-lingualism or its feasibility should not be questioned at this stage in view of the fact that it was the constitutional right to use either Chinese or English as an official language. Lawyers should make preparations for such a system. Concerted efforts had to be made by all parties to solve all problems. Mr Martin LEE said that since the quality of the legal system should not be compromised, it was important to identify major problems at an early stage with a view to perfecting the system. Mr Ronald ARCULLI said that Members affirmed the bi-lingual court system and they were worried about the slow progress of the preparatory work.

15. Mrs Miriam LAU shared her experience in drafting the first authentic Chinese text of legislation with other Members. She said that the spirit of common law behind the English text of the legislation had been followed closely as far as possible during the translation process. Improvements could be made through court hearings, judges' verdicts and judicial interpretation. Mr ALLCOCK suggested that actual problems in cases where injustice had been done due to the use of Chinese should be cited for future discussion. Ms Emily LAU then asked and Ms TAI said that there was an appeal case involving the use of a term which did not have the same meaning in English and Chinese. She could provide additional information to Members after the judgement had been made.

(Post-meeting notes : Judiciary Administrator has attached the judgement of the Queen and TAM Yuk-ha case to her letter dated 8 November 1996, issued vide LegCo Paper No. CB(2) 417/96-97.)



Target date

16. In response to Members' concerns, Ms Alice TAI remarked that there were problems in the course of putting in place a bilingual court system. The pragmatic way to proceed was to adopt a gradual approach. It was a momentous undertaking that would take time to develop and mature. Its rate of progress and outcome could depend ultimately on the state of readiness of all participants in the legal system and whether they wish to make it work.

Legal impediment to the use of Chinese in law

17. Mr Vincent LIANG informed members that the Law Society had encouraged its members to use Chinese as far as practicable. However, he pointed out that the Companies Registry and the Land Registry only accepted English documents for registration purposes. (Post-meeting notes : Mr LIANG qualified this remark that the Land Registry would accept documents in Chinese provided they were accompanied by an English translation.) Mr Albert HO also quoted an example in which some Chinese-speaking people could not file papers in Chinese to the High Court to apply for deferral of a case and they did not have legal aid for representation. He therefore emphasised that Chinese should be given equal status as English in the legal field in the light that an overwhelming majority of people in Hong Kong were Chinese. In this regard, Mr Ambrose LAU remarked that for a bi-lingual legal system to be implemented fully, it would be essential to remove the legal impediment for the use of Chinese and to enlist co-operation from all parties concerned.

Preservation of the common law system

18. Ms Emily LAU expressed concern that the common law system could be adversely affected by the bi-lingual legal system. Mr Albert HO held the opinion that the common law system had over the years spread to and developed in other countries with their own legal characteristics without having been adversely eroded. Mr Tony YEN also said that using Chinese in court would not change the spirit of the common law which was the foundation of the legal system in Hong Kong. Ms TAI shared his view. Members and representatives of the legal profession, the Administration and the Judiciary all subscribed to the view that it was essential to keep the common law system in tact.

Experience in other jurisdictions

19. Mr Vincent LIANG drew Members' attention to the unsuccessful experience of Malaysia where they had to revert to use English in courts after trying to use Malay in courts for many years. Mr Albert HO suggested that perhaps reference could be made to the Canadian system where both English and French were official languages. Mr Martin LEE however opined that reference to the Canadian experience might not be very fruitful in the light that the legal system there was different from that in Hong Kong. Mr Christopher CHAN remarked that the Canadian experience of a bi-lingual legal system was a failure. He suggested that Members should refer to Cyprus as a successful model instead. Mrs Miriam LAU added that Members could refer to the experience of Macau too. She then opined that Hong Kong should learn from successes and failures in other jurisdictions. Members therefore took the view that reference to experience in other jurisdictions would be useful. In this connection, Mr Tony YEN undertook to provide a report on the views of the legal professionals in Macau on their experience for Members' information.

II. Way Forward

20. At the Chairman's suggestion, Members agreed that the issue on the use of Chinese in courts should be monitored by the Panel on a regular basis. The next meeting would focus on (a) the ways and means to implement the use of Chinese in courts; (b) the resources required to achieve the target; and (c) analysis of problems encountered in cases in relation to use of Chinese in courts. In this regard, the Chairman asked the Administration and the Judiciary to provide relevant discussion papers. She further asked the Administration to provide information as to : (a) whether non-Chinese speaking counsel had been replaced because of the judge's decision to use Chinese to hear a case; (b) whether Chinese could be used for pre-trial discussion for civil cases if hearings were to be conducted in Chinese; and (c) the experience in other jurisdictions of bi-lingualism or adopting the local language for common law.Adm
Adm/ Judiciary Administrator

III. Date of next meeting

21. The next meeting would be held on Saturday, 14 December 1996 at 9:00 am to continue discussion. Other LegCo Members and representatives from the respective law faculties of the tertiary institutions would also be invited to attend.Clerk

22. The meeting ended at 11:05 am.
LegCo Secretariat
3 December 1996
* -- other commitments

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