LegCo Paper No.CB(2)1961/96-97
(Thess minutes have been seen by
the Administration)

LegCo Panel on Administration of Justice and Legal Services

Minutes of the Special Meeting held on Monday, 3 March 1997 at 4:30 pm 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 Mrs Miriam LAU Kin-yee, OBE, JP
    Hon Emily LAU Wai-hing
    Hon Ambrose LAU Hon-chuen, JP

Members Absent :

    Hon Ronald ARCULLI, OBE, JP*
    Hon Eric LI Ka-cheung, OBE, JP*
    Hon James TO Kun-sun*
    Dr Hon Philip WONG Yu-hong*
    Hon Albert HO Chun-yan*
    Hon David CHU Yu-lin*
    Hon Bruce LIU Sing-lee*

Public Officers Attending :

    Attorney General’s Chambers

    Tony YEN, JP
    Law Draftsman
    Mr Harry MACLEOD
    Deputy Crown Prosecutor
    Mr Kenneth YUEN
    Principal Crown Counsel (Acting)

    Judiciary Administrator’s Office

    Ms Alice TAI, JP
    Judiciary Administrator
    Mr David LEUNG
    Assistant Judiciary Administrator

    Administration Wing of the Chief Secretary’s Office

    Mr Stephen FISHER
    Assistant Director of Administration
Attendance by In Invitation :
    Hong Kong Bar Association

    Mr Alan LEONG
    Council Member
    Mr Philip DYKES
    Council Member and Vice-Chairman of Special Committee on Criminal Law and Procedure
    Mr Graham HARRIS

    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 City University of Hong Kong
    Mr Derry WONG
    Associate Professor

    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

I. Meeting with representatives from the Administration, the Judiciary, the legal profession and the tertiary institutions

The Chairman welcomed representatives from the Administration, the Judiciary, the legal profession, and the tertiary institutions. The meeting then proceeded to discuss all the outstanding issues. The gist of the deliberations is summarized in the following paragraphs.

Experience of other jurisdictions of introducing bilingualism in courts

(LegCo Paper No. CB(2) 658/96-97)

2. With reference to the summary of transition experience of implementation of bilingualism in other jurisdictions (Annex A to the information paper from the Attorney General’s Chambers which had been issued vide LegCo Paper No. CB(2) 658/96-97), Ms Emily LAU said that Hong Kong might find it useful to refer to the Malaysian experience where bilingualism had progressed very slowly. She therefore asked and Mr Tony YEN agreed to provide further information on the Malaysian experience in the 1990’s so that members could understand the latest development. Ms LAU also referred to the difficulties experienced in other jurisdictions and echoed the concern expressed by the legal profession that Hong Kong might be moving too fast in implementing bilingualism in courts. In this regard, Mr Stephen FISHER assured members that a gradual approach would be adopted in moving towards the ultimate goal of bilingualism in courts.AGC

Ways and problems of and resources required for promoting bilingualism in court

(LegCo Paper Nos. CB(2) 658/96-97, CB(2) 920/96-97, CB(2) 925/96-97 and CB(2)1075/96-97)

3. Mr Derry WONG informed the Panel of his own experience in conducting both civil and criminal cases in Chinese in the Magistracies with members. He said that he did not encounter any major difficulties in the process. He suggested members to refer to the judgements of the two cases which were conducted in Chinese in the High Court, which were not inferior in any way to those delivered in English. Mr WONG further informed members that the City University of Hong Kong and the University of Hong Kong had conducted mock trials in Chinese and the standard was very high. He therefore did not think that use of Chinese in courts would compromise the legal system in Hong Kong. In this connection, Mrs Miriam LAU remarked that the view of the whole legal profession in using Chinese in courts was more important and it might be easier to use Chinese for criminal cases than civil cases. She therefore suggested that a step-by-step approach should be adopted in promoting use of Chinese by starting with the lower courts for criminal cases during the initial stage in order to provide opportunities for various parties to accumulate relevant experience.

4. Mr Andrew CHENG referred to the composition of the Standing Committee on the Use of Chinese in the Legal Department (the Standing Committee) set out in the Appendix II to the letter dated 10 January 1997 from the Attorney General’ Office (LegCo Paper No. CB(2) 920/96-97 referred) and queried why members participated in the Standing Committee on a personal basis, instead of as representatives of respective divisions. Mr Kenneth YUEN explained that although members participated in the Standing Committee on a personal basis, they actually represented each and every division in the Legal Department. He also pointed out that: (a) the work of the Standing Committee was targeted at promotion on the use of Chinese in the Legal Department, which was not very closely related to the use of Chinese in courts; and (b) due regard to practical considerations was necessary in promoting use of Chinese in the Legal Department because there were many non-Chinese speaking staff members in certain divisions. Mr CHENG remarked that it might be more appropriate for members of the Standing Committee to participate as representatives of different divisions in the Legal Department so that they could report to the Attorney General in their official capacity so as to demonstrate the importance of its work. Mr Tony YEN undertook to relay Mr CHENG’s view to the chairman of the Standing Committee.AGC

5. In response to the Chairman’s questions about the Judiciary‘s resource allocation for the use of Chinese in courts (LegCo Paper No. CB(2) 925 referred), Ms Alice TAI explained that the additional Court Interpreter posts in para. 5 of the paper were dedicated to supporting the Use of Chinese in Courts Programme. A large number of Court Interpreters of different ranks were also engaged on a part-time basis, after court work, in translation work connected with the Programme. Their work included translation of statutory forms, non-statutory forms, headnotes of selected landmark cases, and a glossary of terms and phrases commonly used in courts. Translation work was also required for individual litigant who sought assistance from the court. She stressed that the Judiciary had to take care of the daily operations of the court on the one hand and bear in mind the time-table for implementing use of Chinese in courts by 1 July 1997.

6. Mr Andrew CHENG asked and Ms Alice TAI responded that all the courts in the High Court already had a recording system in place but the remaining 26 courts would be provided with a computerized recording system by 1999. In view of the computerized recording system soon to be in place, Mr CHENG then suggested that use of simultaneous interpretation in courts might be feasible provided that there was a good team of simultaneous interpreters. Ms TAI informed members that the Judiciary had conducted a series of mock trials to assess the feasibility of using simultaneous interpretation in courts, in response to a suggestion of the Panel in 1994 and the views of the legal profession at that time. However, it was decided after two years of experiment that simultaneous interpretation was not an acceptable mode of interpretation in court because without a full translation of the exchange, material mistakes could be made through simultaneous translation and, if incorrect, could lead to miscarriage of justice. Mr CHENG also asked and Ms TAI explained that the law and language course attended by the three Senior Court Interpreters at the Beijing University in August 1996 was on contemporary Chinese writing and the writing of judicial documents in Chinese.

7. Mr Andrew CHENG opined that as a matter of discretion, mixed languages could be allowed at the initial stage so that lawyers could cite case laws in English. Ms Alice TAI said that the use of cocktail language might lead to arguments as to which should be the correct version if the prosecution and the defence counsel used different languages. Mr Eric CHEUNG held a different view. He referred to the experience of conducting court hearings in Chinese in the Magistraies where counsel could switch to using English when technical or legal matters were being discussed. He therefore opined that flexibility in switching languages in courts could encourage counsel to use Chinese more. In this regard, the Chairman pointed out that some judges would permit counsel to quote original texts in its original language too.

8. After discussion, the Chairman stressed that it was of paramount importance to secure resources for bilingualism such as hiring more interpreters and translation of case laws. Mr Eric CHEUNG pointed out that the party who wanted to use a document in Chinese for court proceedings at present would have to bear the translation cost. He therefore suggested that the Judiciary could consider providing resources for translating documents as a measure to encourage use of Chinese in courts. Mr CHEUNG added that proper co-ordination of resources would also be of assistance. In this connection, Ms Alice TAI informed members that there was a steering committee chaired by a High Court Judge on use of Chinese in courts which provided a co-ordination mechanism in court proceedings. The membership of the steering committee included representatives from the Hong Kong Bar Association (the Bar) and the Law Society of Hong Kong (the Law Society), tertiary institutions as well as the relevant government departments. However, the Chairman remarked that an overall co-ordination mechanism overseeing the implementation of a bilingual legal system might be necessary.

Efforts made by the two branches of the legal profession on promoting the use of Chinese in courts

(LegCo Paper Nos. CB(2) 1072/96-97 and CB(2) 1166/96-97)

9. With reference to the paper provided by the Law Society entitled "The Law Society and Bilingualism" (issued under cover of LegCo Paper No. CB(2) 1166/96-97), Ms Emily LAU asked and Mr Vincent LIANG said that the Working Party on promoting use of Chinese in law had held its first meeting in September 1996 but some preparation work had already been done in advance. The Law Society considered that it should actively promote and implement bilingualism in the legal profession. The work was focused on daily practice of law firms such as translation of sample documents commonly used in the profession (such as sale and purchase agreement, tenancy agreement and assignment) and encouraging solicitors to use Chinese in correspondence. In response to the Chairman, Mr LIANG informed members that the survey on the multi-faceted problems involved in the process of transformation from monolingualism to a bilingual legal system had been completed but analysis was still in progress. Ms Emily LAU suggested that the Panel should be informed of the result of the survey once it was available. Mr Stephen HUNG also informed members that the Law Society and the Bar had conducted courses to use Chinese in courts for lawyers with less than five years’ practising experience. However, Mr Christopher CHAN commented that response to these courses was not very enthusiastic. Mr HUNG stressed that availability of Chinese textbooks in law as well as case laws in Chinese was also important in promoting bilingualism in courts. In response to Ms LAU’s concern that the Law Society had not done much about use of Chinese in courts. Mr CHAN further explained that it was extremely difficult for the Law Society to translate judgements or case laws into Chinese, having regard to the constraints on its manpower and resources.

10. With reference to the paper prepared by the Bar entitled "Efforts made by the Hong Kong Bar Association towards bilingualism in the Law and the Courts" (issued under cover of LegCo Paper No. CB(2) 1072/96-97), Ms Emily LAU asked and Mr Alan LEONG informed members that the Bar had just set up the Committee on the Use of Chinese (the Committee) which was chaired by himself. The target of the Committee was to identify the problems involved in the establishment of a bilingual legal system and make recommendations on how such problems could be solved. Members would be appointed to the Committee shortly and work would then start. Apart from organizing mock trials in Chinese with the Judiciary and the Law Society, the Bar had encouraged members to share experience with court interpreters in using Chinese in courts. Ms LAU further asked how many barristers could use Chinese in courts at different levels of court. Mr LEONG estimated that : (a) about 60% of barristers who practised in the magistracies could use Chinese for cases tried in magistracies; (b) not more than 30% of barristers (who practised criminal cases at the High Court) could use Chinese for criminal cases in the High Court; and (c) there was a very small number of barristers who practised civil cases could use Chinese for civil cases in the High Court. He explained that although about 80% of those barristers who practised civil cases were bilingual, to use Chinese for civil cases was very difficult because these cases often involved legal concepts and quotations from case laws which were in English only and yet there was no common set of translated glossaries.

11. Some members expressed concern that the progress in promoting use of Chinese in court in the legal profession was very slow. In response to Mr Ambrose LAU’s query, Mr Alan LEONG said that the Bar supported bilingualism in courts, that was, use of either Chinese or English in courts, and not just having trials in Chinese only. However, the policy of the Administration in this respect was rather unclear so that it was difficult for the legal profession to complement the Administration’s effort. Mr Philip DYKES supplemented that the Administration should have given a clear direction in implementing bilingualism in courts long time ago so that there would be more publications of legal texts in Chinese and the legal profession could have a more structured response to the issue. In this connection, the Chairman pointed out that the Bar had in fact urged the Administration to direct more resources to implement a bilingual legal system years ago. Unfortunately, the Administration was unable to clarify the exact meaning of bilingualism. Mr Martin LEE also remarked that the court should accommodate use of either Chinese or English in hearing a case. It would mean a completely different route if bilingualism meant using one of the official languages only in conducting court proceedings.

II. Any other business

12. Mr Tony YEN referred to the appeal case of R v TAM Yuk-ha which had been discussed at previous meetings. He informed members that the problems relating to discrepancies between English and Chinese texts had been anticipated when bilingual legislation was started in 1986. Amendments were therefore made to the Interpretation and General Clauses Ordinance (Cap. 1) and Section 10B was to be invoked for reconciliation of the two authentic texts of the same law. In order for the Judiciary and the legal profession to understand the historical background of this particular section, the Attorney General’s Chambers was preparing a paper setting out their views on how section 10B should be interpreted and how it should apply in case of discrepancy. Views of the Legal Service Division of the LegCo Secretariat had been sought when preparing the paper. Mr YEN emphasized that the paper was not meant to be a guideline. The Chairman agreed that the paper could be circulated to members of the Panel for their reference once available.AGC/

III. Date of next meeting

13. Members agreed to hold another meeting on Saturday, 26 April 1997 at 9:00 am to review the progress in implementing use of Chinese in courts. The Chairman also suggested that: (a) the Bar could report on the identification of the problems involved in the establishment of a bilingual legal system; (b) the Law Society could inform the Panel of the result of the survey; and (c) the Judiciary Administrator’s Office could provide a progress report on the Use of Chinese in Courts Programme.the Bar
Law Society
Judiciary Administrator‘s Office

14. The meeting ended at 6:30 pm.

LegCo Secretariat
10 April 1997

* other commitments

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