Legco Panel on Public Service
Meeting on 28 April 1997
Written Submission by the Local Crown Counsel Association
The Association trusts that members of the Penal are fully aware of the general position. Accordingly, we concentrate on the operational need regarding knowledge of Chinese, and in particular, the situation in the Legal Department.
2. We understand that the CSB will ask certain law related departments including Legal Department for their views as to whether knowledge of Chinese is required. We wish to remind honourable members that some of such official views are written by high ranking officers who themselves are not bilingual. It is hard to expect that they would suggest government lawyers need to be bilingual as this is tantamount to admitting that they cannot do their jobs. We offer the Associations view for your consideration.
3. There are 5 divisions in the Legal Department, namely, Legal Policy, Law Drafting, Civil, Prosecutions and International Law.
Legal Policy Division
4. Members of Legco and the public often write to the AG in Chinese. Bilingual counsel make replies. Counsel who have no knowledge of Chinese cannot do such work. All Legco documents have to be in both languages. Indeed, if a bilingual counsel is supervised by a high ranking officer who has no Chinese knowledge, there is no supervision when it comes to Chinese letters and Legco documents. Such lack of supervision also occurs when legal advice, especially those on China Law is given in Chinese.
5. Officials from the PRC visit the Division very often and only bilingual counsel can attend to these visits effectively. Before and after such visits, correspondences with them could only be handled by bilingual counsel.
6. In the future, it is envisaged that work requiring Chinese language proficiency will increase. An officer who has no knowledge of Chinese could only perform part of the duties.
7. Government should encourage the use of Chinese within the Civil Service. In future legislation will be drafted in Chinese, rather than have them translated from English. Thus, legal advice on such drafts will have to be in Chinese. Besides, if the SAR Govt submits its human rights report to the UN, this Division will have to draft such report in Chinese.
8. The Secretariat to the Law reform Commission (LRC) is a part of the Legal Policy Division. Seven counsel work for the Secretariat. Only 4 are bilingual.
9. Since 1986, the policy of the LRC has been to publish all reports in both official languages and, since 1993, the aim has been to issue all consultation papers in both languages. Bilingual counsel prepare reports and consultation papers in both languages. Non-bilingual counsel only prepare the English texts of such reports and papers, which are then translated. However, the responsibility for ensuring that the two language texts convey the same message has to be passed to a bilingual counsel. Experience has shown that it is more efficient and effective to have a bilingual counsel responsible for the two texts.
10. So far, little or no experience has been drawn from mainland China in relation to proposals for law reform and there has been little liaison with the counterpart Chinese authorities or bodies. This practice is expected to change in the future. There will be more liaison and exchange of correspondence with our counterparts in China. Chinese language proficiency will then be essential.
Law Drafting Division
11. This Division comprises the English Drafting Unit and the Chinese Drafting Unit. The former comprises mainly monolingual counsel while the latter comprises solely local counsel who are conversant in both languages. Most of such bilingual counsel are relatively junior.
12. All legislation has to be drafted in both languages. However, so far, all drafting instructions have been in English and almost invariably, draft legislation is first prepared in English. Monolingual counsel are only responsible for drafting the English text. The few bilingual counsel in the English Drafting Unit may be responsible for drafting both the English and Chinese texts of a legislation. Bilingual counsel in the Chinese Drafting Unit are responsible for preparing the Chinese texts based on the English texts prepared by counsel in the English Drafting Unit. They also draft some legislation in both texts where appropriate.
13. In the future, drafting instructions could be in either language. Some legislation will have to be drafted in Chinese first. In time, say, about 3 to 5 years, when bilingual counsel acquire more drafting skills, they would then be able to draft both the Chinese and English texts of legislation. Bilingual counsel could take over from the expatriate counsel progressively, in stages or in batches.
14. For advisory work, most documents have English translations as most client departments have translated all documents in their files. However, some lengthy but relevant documents like codes of conducts or rules of certain bodies are in Chinese and are not translated. Some client departments may regard those as unimportant and would rather not waste the resources. Then only bilingual officers could advise on such files. Some contracts involving the Govt, especially those involving parties from China are in both languages. Monolingual officers cannot deal with the Chinese version at all. In short, there are certain areas of work that monolingual counsel cannot perform.
15. Unusual areas like Ching Law still have a legal force when it comes to certain legal aspects, especially when the New Territories are concerned. Also, like counsel in other Division, counsel in this Division often have to draft letters in Chinese. Chinese knowledge is a must.
16. Furthermore, it is projected that advisory work requiring knowledge of Chinese will only increase in the future.
17. Concerning court work, court proceedings in Hong Kong have been conducted in English for the past 150 years until a few years ago. Indeed, the first High Court trial in Chinese was only done last year. Litigants have a right to have their cases heard in Chinese. In disciplinary proceedings against professionals like accounts or dentists, if the litigant chooses Chinese, the counsel has to be bilingual.
18. Also, whenever there are contractual disputes involving the Govt, monolingual counsel simply cannot handle cases where a Chinese version of a contract is involved.
19. For advisory work, the vast majority of witnesses of criminal cases give statements in Chinese. Law enforcement agencies like the Police, C&E, ICAC try
their best to translate all documents (including witnesses statements) in their files before they obtain legal advice. Delays are inevitable because of the time needed for translation. Enormous resources are utilised - all for the sake of the group of monolingual counsel. If for any reason e.g. lack of resources, such enforcement agencies see fit not to translate the files, monolingual counsel will not be able to carry out their function as legal advisor.
20. Indeed, too often, because of shortage of time and scarcity of resources, untranslated files come for urgent advice and only bilingual counsel could do such advice. This happens very often to cases which are dealt with at Magistracy courts. Some High Court files also come in without translation. Naturally, bilingual counsel are asked to deal with such files - and such advice cannot be scrutinised by their supervisor if the latter is monolingual. Furthermore even if there are translations, bilingual counsel can check original statements for mistakes or omissions in the translations.
21. Also, when letters from public and Legco Members are in Chinese, we reply in Chinese.
22. As for court work, the majority of trials involve witnesses testifying in Chinese. Without translation of all documents, monolingual counsel simply cannot work in court. Moreover, monolingual counsel do not have the ability to check translations for errors or omissions.
23. It is impossible to sort out cases which do not require Chinese proficiency, as further evidence/witnesses may come to light in the course of trial.
24. Defendants now have a right to choose the language of trials. Chinese can be used at all level of Courts, i.e. Magistracies, District Court, High Court, Court of Appeal and Court of Final Appeal.
25. Since August 1996, trials in the District Court can be heard in either Chinese or English. On the plea day, a defendant is asked to choose the language that he wishes the trial to be conducted in. If the defendant elects Chinese, then the trial will, subject to the availability of a trial Judge who is fluent in Chinese, be conducted in Chinese. So far, about 100 cases have been tried in Chinese.
26. The above figure does not reflect the true position because some defendants forgo their choice of having their trials in Chinese because the waiting period is longer - due to the lack of bilingual judges. The trend is clear and we project that after1.7.97, the number of Chinese trials will increase substantially.
27. In the past defendants had no choice. Now they do. When they choose Chinese, monolingual counsel will not be able to perform their duties in court and many of them will become redundant. Accordingly, it makes no sense to transfer them to Permanent and Pensionable (P & P).
28. In the High Court, the Govt has not yet amended the Jury Ordinance to allow jury trials in Chinese. Defendants have to wait for the amendment. One case is waiting as the defendant insists on having his trial conducted in Chinese. More of these will come. In the past, the Gov't has not done enough, but the trend of defendants choosing Chinese will continue. In the Magistracy, Chinese trials are very common. In the District Court, it has just started. In the Court of Appeal and the High Court, there has been appeals in Chinese.
International Law Division
29. ILD Counsel need to be bilingual as they have to vet Chinese text of international agreements or documents including correspondence with Chinese side. Informal and social contacts with the Chinese side are common. Those officials prefer to converse in Putonghua.
30. They also deal with oral and written enquiries from members of the public. Some of such enquiries are in Chinese.
31. After 1.7.1997, the need to use Chinese in ILD will increase especially if the ILD is to have direct working relationship with the PRC authorities.
Progress of localisation in the Legal Department
32. Legal Department is slow to localise. Annex "A" shows the position. Over half (33/61) of the directors are expatriates. They do not push for localisation which may lead to their leaving offices. Although schemes have been created to groom local counsel and new "intermediate" posts have been created, yet, as long as such high ranking expatriates are in their posts, those "intermediates" being groomed have nowhere to go. If such high ranking expatriates join the P & P establishment, the Legal Department structure at the directorate level will remain the same for a long time to come.
33. Expatriate officers have been on favourable terms although they lack the Chinese language skill. Yet, because the expatriates are at a higher rank, they create an impression that there is no operational need for Chinese. That cannot possibly be correct. Chinese and English will be equally important and monolingual counsel may become redundant in the years to come. If they become P& P staff, Hong Kong will face huge compensation claims when they need to be retrenched.
Legality of Language Requirement
34. The Court of Appeal, in the judgement of AECS V CSB case, did not rule that language requirement by itself was unlawful. The judgement says there is no evidence before the court that there was a service need of Chinese skill (p. 30 Line K of the judgement). That is so because the Govt did not produce such evidence.
CSBs proposal and our view
35. The CSB proposes that those expatriates who applied to transfer to local agreement terms before 31.10.95 (date of the HC judgement) needs no language requirement whereas those who applied after that date may have to fulfil such a requirement. As a matter of fact, the language requirement for expatriates who applied after that date may be dispensed with by their respective departmental heads. We submit this is not a good way to handle it because civil servants need to be able to speak, read and write both Chinese and English to serve HK. Further, having the judgement date as a cut off line does not make sense. We suggest that language requirement for civil servants should be service wide, not to be waived by Department heads.
36. An agreement is a commitment for a certain period, not a never-ending commitment. An expatriate applying for transfer came as agreement officer and they knew agreement was for a term, and could not now claim they had an expectation to became P & P. If they suggest Govt must give them a contract after a contract - why need a contract in the first place?
37. If expertise of monolingual counsel is needed for the while, they could be offered consultant terms until their service is not required. Legco could monitor the departments handling of such applications.
38. We suggest that we have a transition, of say a 5 yr projection period. The Legco monitors it and see how it goes. There is no need to rush and transfer all such non-bilingual civil servants to P & P establishment. In the future, bilingual officers who can do their jobs can replace them .
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Last Updated on 21 August 1998