3 Language Rights and the Hong Kong Courts a5 aaacaes.hku.hk/hkjalonline/issues/download_the_file... · scale civil disturbances in Hong Kong. Facing political uproar, the Government

Hong Kong Journal of Applied Linguistics 2,2 (1997); pp. 49–76

Language Rights and the Hong Kong Courts

Anne Cheung Department of Law

University of Hong Kong

Abstract

Ever since the signing of the Sino-British Joint Declaration in 1984, legal bilingualism has become the leading fashion. However, the implementation of legal bilingualism in the court rooms is a difficult, complex and on-going gradual process. This paper will concentrate on the assertion of language rights in four different aspects, namely pre-trial process and trial process, in jury participation and in the law reporting and recording system. There are strong theoretical grounds for the recognition of language rights, yet Hong Kong may not be ready for their full enforcement. Hong Kong has to juggle with the problems of relying on enormous amount of English cases, a lack of legal personnel that are proficient in both official languages and financial concerns. It is hoped that the implementation of language rights and the legal principle of upholding language rights can be matched in the near future.

Introduction

The buzz-word in the opening ceremony of the legal year of 1997 was ‘legal bilingualism’. It was echoed in its various aspects in everyone’s speech. Its pace, its goal, its development and the difficulty of its implementation were all touched on respectively by the President of the Law Society, by the Chairperson of the Bar Association, by the Attorney General and by the Acting Chief Justice.1 With the change of sovereignty to China on 1 July 1997, the increasing use of Chinese in law is beyond dispute.

Hidden behind legal bilingualism is the core issue of language rights. The

scope of language rights includes the right to speak and be understood in commerce, in educational institutions, in communication with the Government, and in the legal, legislative and judicial process. In particular, the scope includes the right to speak and be understood in the legal language before emanations of

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the state, for example the judicial and administrative tribunals, government departments, ombudsmen, the electoral system, and educational institutions. This may entail affirmative and positive duties on the government to promote participation in the system, to eliminate indirect obstacles to participation and to make information available (Magnet, 1986). Broadly speaking, the language of the legal system and courts should reflect to some degree the language used by the population of a state. Failure to do so constitutes discrimination against a segment of the population. This problem was especially serious in Hong Kong before the 1960s. In the prevalent discourse of human rights, language rights have often been classified under the headings of equality rights or minority rights (Braën, 1987). Ironically, the assertion of language rights in Hong Kong takes the form of assertion of majority rights. Ever since Hong Kong became a British colony in 1842, English has been the language of the ruling class. The local population, 98% ethnic Chinese, can be said to be living in a world of ‘linguistic apartheid’ (Roebuck, 1989: p.396). The mother tongue of the majority population is Cantonese, but local subjects who are not proficient in English are in a disadvantaged position in their dealings and communications with the government. No one can deny the fact that some command of English in Hong Kong affords entry into a different social world in addition to opening up a wider range of employment opportunities. The tide of events experienced a sudden turn in 1984 when the Sino-British Joint Declaration on the issue of Hong Kong was signed, stipulating that Hong Kong would revert to China in 1997. The increasing significance of the Chinese language was a necessary consequence.2 One cannot help wondering, however, whether the sudden elevation of the status of the Chinese language is simply a historical and political outcome of this event. The high-sounding rhetoric these days is for ‘bilingualism’. In fact, the Government instituted a limited form of bilingualism from 1974, but it was only from 1984 that the process of bilingualism suddenly gained speed, most obviously in the legislative process.3 In the court room, the implementation of bilingualism is a difficult battle. The Bar Association criticized the recent move towards bilingualism as a mere form of ‘selective monolingualism’.4 The courts have witnessed an increasing use of Chinese rather than the development of bilingualism and a curious twist of fate nowadays is that English-speaking counsel are forced to use Chinese regardless of their wishes (Chan, 1996).5

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Due to the diversified areas that language rights in the law may cover, this paper will limit itself to discussing the different aspects of the use of legal language in court proceedings, namely, the use of legal language (1) in pre-trial preparation, (2) during the trial process, (3) in jury trial and (4) in the law recording and reporting system. Chinese language, as it is referred to in this paper, is spoken Cantonese and the written form of traditional Chinese characters. The paper will first outline the language environment in Hong Kong and then trace the source of language rights in legal documents before discussing the use of legal language in court. In the discussion, one will find that though language rights have been recognized in Hong Kong, their interpretation and implementation are complex. Language rights have been formulated in the context of a power relation, as a form of political compromise, as an expression of identity and as a form of fundamental human rights grounded in equality. Legal problems will arise when Hong Kong has to take language rights seriously in the courts. Hong Kong's language environment The right to use a specific language is closely tied to the legal status of the languages that the state recognizes. From this perspective, it is ‘natural’ that English was designated as the only official language of Hong Kong for more than 100 years (1842-1974) in which the colonial legal system was run in the language of the metropolitan power. On the other hand, it was far from ‘natural’ that English was the only official language when the vast majority of the population were Chinese. The language environment produced by the colonial Hong Kong Government was particularly efficacious to the imposition of foreign values. The colonial experience was one of surrender and submission to a dominant culture. There was strong pressure to assimilate and the tacit acknowledgment that one’s native language (Chinese) lacked an equal status to English. Colonial subjects were governed by a law that they could hardly read or comprehend. Legislative debates were conducted in a language alien to the majority of the people. Defendants in criminal cases did not have the right to fully understand the trial.6 The resulting language barrier made a complete mockery of the common law legal system which was supposed to uphold the cardinal legal principles of accessibility and equality. The development of the Chinese language movement in Hong Kong can be seen as a product of the coincidence of various phenomena: improvement of education and urbanization, the change of sovereignty and the rise of

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national sentiment since the 1960s. Between 1966 and 1967, there were large-scale civil disturbances in Hong Kong. Facing political uproar, the Government set up a commission of inquiry. In the ‘Kowloon Disturbances 1966 - Report of Commission of Inquiry’, warning was sent out that the language of the law and much of the administration was not understood by the bulk of the population, resulting in a gap between the Government and the people (quoted by Chen, 1989). The Government was forced to face the language issue when a tertiary student campaign asserted the use of Chinese language as an official language in 1969 and in 1970. The assertion of language rights gained widespread support from various sectors in society. There was growing awareness and desire among the local population for a wider use by Government of Chinese for the sake of the convenience of the people7 and the Government responded by appointing a Chinese Language Committee in October 1970 to examine the use of Chinese in official business and in the administration of the Government (Chen, 1985). Finally, in 1974, Chinese became an official language to be used in meetings of the Legislative Council, Urban Council, Regional Council and the District Boards.8 The more recent implementation of official bilingualism, however, was prompted by the signing of the Sino-British Joint Declaration in 1984, which rekindled awareness of the use of Chinese. With its recovery by China in sight, Hong Kong experienced a sudden change from an essentially monolingual legal system to a bilingual legal system within a short period of 13 years. For the first time in history, the Hong Kong Government in 1995 began its ‘Report on the Use of Chinese in the Civil Service’,9 with the Chinese section. In the past, English language schools were considered to be more prestigious than Chinese language schools. Mastery of the English language was essential while Chinese language only played a marginal role. Now Putonghua (the official spoken language of China) is included in the primary school syllabus and recently, the Education Department has promulgated a new syllabus for education through the mother tongue. All these reforms are by-products of the changing linguistic relation between Hong Kong people and the Government, which in turn are influenced by various factors. To understand the history of the language movement in Hong Kong requires attention to be paid to the social nature of language choice. Post-war expansion of education gradually made its impact on the local population in the late 1960s. The upward social mobility of local Chinese improved the status and increased the use of Chinese language in communication between citizens and the Government. However, the language


reform started in 1984 was entirely different from the one of the late 1960s. The latter was mainly a grass-roots movement, but the former was generated from the top. From 1 July, 1997, the Basic Law became Hong Kong’s constitution. Article 9 of the Basic Law states that ‘in addition to the Chinese language, English may also be used as an official language by the executive authorities, legislature and judiciary of the Hong Kong Special Administrative Region’. Though the SAR Government is eager to maintain the role of both English and Chinese languages, the fact that English language needs this additional reassurance for its survival as an official language reveals a change in power relations. Though it is always hazardous to predict the future, it seems clear that the switchover from a monolingual legal system to a bilingual system will extend well beyond 1997. Certainly it cannot take place overnight. Thirteen years have passed. Hong Kong, at best, is only partially bilingual. The development into a fully bilingual legal system, especially in the judicial process, is a winding road to tread. Source of language rights In the midst of all these rapid political and legal changes, one may overlook the issue of language rights. The assertion of language rights is often formulated in terms of freedom of expression in the private domain and equality or non-discrimination rights in the public domain (de Varennes, 1996). Language rights as a form of freedom of expression imply non-intervention by the state in private or non-governmental affairs.10 As this paper is concerned with the language requirement inside the court rooms, the discussion will concentrate on the issue of equality and examine mainly the mode of criminal trials, where the government is a party. A trial is clearly a public activity for it is ‘conducted under the auspices of the state for the public good’ (de Varennes, 1996: p.44). The notion of language rights as an equality issue is enshrined in human rights documents. Article 1 of the Hong Kong Bill of Rights11 (BOR) affirms the enjoyment of language rights and article 22 guarantees language rights on the ground of equality and non-discrimination.12 In this respect, the Hong Kong standard follows the standard of international law.

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The Hong Kong BOR, is to a large extent a replica of the International Covenant on Civil and Political Rights (ICCPR). Article 1 of the BOR is a mirror version of articles 2 and 3 of the ICCPR, guaranteeing rights without distinction. Article 22 of the BOR is an equivalent version of article 26 of the ICCPR, guaranteeing equality before law without discrimination on any grounds, including language. Article 11 of the BOR, the equivalent of article 14(3) of the ICCPR, states that anyone charged with a criminal offence has the right ‘to be informed promptly and in detail in a language which he understands’.

Though the Hong Kong Bill of Rights Ordinance no longer enjoys an

entrenched status13 after 1 July 1997, the Basic Law of the Special Administrative Region (SAR) has implied provisions for language rights. Article 39 of the Basic Law stipulates that provisions of the ICCPR ‘as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong SAR’. Though protection of language rights is not explicitly spelled out, article 25 states that ‘all Hong Kong residents shall be equal before the law’. Recognition of language rights as an essential component of equality requires that an individual be protected against unreasonable or unacceptable differential treatment. The test to apply in the determination of what is and what is not unreasonable is that of balancing the legitimate interests of the state and those of individuals. It is an issue of proportionality (de Varennes, 1996: p.58). This implies that language rights are never ‘absolute’ rights or ‘fundamental’ rights as it is impossible to grant official status to all the languages spoken by all the people in Hong Kong. Only English and Chinese are official languages in Hong Kong. Vietnamese is not an official language because the Government can easily argue that most Vietnamese in Hong Kong are refugees and, therefore, transient. Similar arguments apply to the different Chinese dialects such as Fukienese, Chiu Chow and Shanghainese, other than Cantonese. The Government will be unduly burdened if measures have to be made to accommodate all these dialects as official languages. In Hong Kong, since Chinese is an official language, it is reasonable that it should have recognized status as a language of the law.


The language of the courts The recognition of the right to use one’s mother tongue in the court room has long existed in English law. As early as 1362, Chapter 1514 of the English statute already stated that all pleadings and arguments in court should be debated in English but enrolled in Latin. In 1731,15 another statute stated that all proceedings in courts, including summons should be issued in English instead of Latin or French. The rationale behind this was that the people could be better governed through a language they knew and understood. Only in this way could they be law-abiding citizens. Only in this way would law not be a ‘mischief’ to the citizens. Ironically, the mischief was transplanted to Hong Kong for more than a century in which language reforms in the court room proved to be an uphill battle. In 1988, ‘A Working Party Into Greater Use of the Chinese Language In Courts and Court Procedure’16 was set up to consider the implementation of a bilingual court system in Hong Kong. An ambitious project was recommended for the implementation of Chinese language in courts at all levels starting from the magistrates’ courts to include the translation of documents used in courts, translation of records of proceedings and judgment, and for the admission of Chinese speakers as jury members regardless of their English language proficiency. By 1997, only part of the recommendations had been put into effect but many other issues have been raised and dropped. This is certainly not due to a lack of awareness but due to practical problems. One reason is the difficulty of translating English case law into Chinese. It is hard to envisage that thousands of case materials dating back hundreds of years can be easily expressed in a language other than English. A second reason is the lack of judicial personnel who are proficient in both Chinese and English. A third reason is financial constraints on having documents and reports in both languages. It is in this difficult arena that language rights are being asserted as human rights. The following discussion will cover (1) assertion of language rights in pre-trial process, (2) assertion of language rights during trial process, (3) jury participation and (4) the law-reporting process. In each section, arguments for language rights are formulated on different grounds. Finally, language rights in Hong Kong emerge as a hybrid of both political and human rights concerns.

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Pre-trial preparation It goes without saying that to prepare for a trial, the parties concerned have to understand the notice or the information or the summons issued by the court. If one is unable to read the summons in English, one is hardly aware of the legal problem. A person must be alerted to the problem before he knows how to seek help. The problem is most acute in criminal cases where an individual’s liberty is at stake. The litigant has the right to know exactly what is being alleged against him. Magnet (1982) argues that in criminal proceedings, the state has an obligation to provide a bilingual forum and not to burden the citizen’s right to choose the language by unilingual initiation of the process. The state is more resourceful than an individual and should bear the responsibility to give ‘actual notice’ to the defendants, which De Aviso (1973: p.388) defines as a notice by which the person ‘sought to be affected knows thereby of the existence of the particular fact in question’. In the area of pre-trial preparation, arguments based on human rights and language rights have been made in Hong Kong. In R v. Tse Kim-ho & Anors,17 the two defendants were charged with traffic offences. Each defendant was served with notices and subsequently a summons printed in a combination of the English and Chinese languages. The English version contained full information whereas the Chinese version lacked certain factual allegations and information on the nature of the offence. The defendants argued that the summons had violated article 11(2) of the Bill of Rights which stipulates that -

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality- (a) to be informed promptly and in detail in a language which he

understands of the nature and cause of the charge against him;

The defendants are entitled to know in advance the allegations against them so that they can prepare the defence.

Mr. White, a magistrate, held that article 11(2)(a) had been unduly compromised. Since summons formed a vital part of pre-trial procedure, the defendants had been denied a fundamental right. The discrepancy between the English summons and the Chinese summons might entail the risk of misinformation and consequent confusion. This would easily lead to


resentment and cynical distrust of the legal system. Further, the defendants had been denied the early opportunity to recall and collect evidence. Most important of all, in the supplementary reasons, Mr. White sent a strong and forceful message on the recognition of language rights.18 He said that the BOR, s. 5 of the Official Languages Ordinance19 and the common law required the court to ‘protect the equal right of all defendants to hear and understand the proceedings against them and this is of fundamental importance to any reasonable system of justice.’ He also said that ‘such an approach has always been used to ensure that language has not been a barrier to legal protection in full equality and the pre-trial issue of a summons can only be fitted to this legal framework if similar protections are held to apply’. In the end, Mr. White ruled that article 11(2)(a) of the BOR had been unduly breached and that an adjournment or amendment of the proceedings would not be able to rectify the mistake. The charge and the case were dismissed. The move made by the magistrates’ court was sadly stifled by the Court of Appeal in AG v. Tang Yuen-lin,20 where the defendant invoked article 11(2) of the Bill of Rights to challenge the validity of a summons issued only in the English language. While the defendant did speak some English, his friends read the summons to him and told him the time and place of the court hearing. Only in the magistrates’ court was the charge read out and fully explained to the defendant in Chinese. In contrast to Mr. White’s ruling, the Court of Appeal held that as long as the full particulars of the charge had been explained to the defendant by a person in authority or even by the defendant’s own legal advisor, there was no violation of the Bill of Rights. In the appeal, Mr. Justice Penlington preferred the ‘plain meaning’21 approach of article 11(2(a), for he said ‘the words “informed promptly” do not convey the idea that the defendant must be informed in writing, nor do they mean that he must be informed immediately. The information may be conveyed orally and at a reasonable time after the charge has been laid, as was done on the first occasion on which the respondent appeared before a magistrate’.22 Ultimately, the court adopted a result oriented approach by stating that ‘what is essential is that rights guaranteed are such as will ensure a fair trial’.23 Since the defendant could not prove he had suffered any delay or prejudice, justice had been done.24

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If the right of the defendant is grounded in the cardinal principles of due process, fair trial and natural justice, it is a mockery of the judicial system if the defendant is not made aware of the legal problem in the first place. Unless he is alerted to the need for translation of notice and has it translated to him promptly, how can he even seek legal advice? The defendant’s right to a fair trial would be unduly prejudiced. For instance, in R v. Tse Kim-ho & Anors,25 the defendants could only read Chinese. They were certainly unable to detect the discrepancy between the English version and Chinese version of the summons. In AG v. Tang Yuen-lin,26 the defendant only found out the charge at the first hearing. In addition, the Court of Appeal’s ruling was contradictory to the spirit of s.5(3) of the Official Languages Ordinance. Section 5(3) states that a party in any proceedings may use either official language. This right to choose the language in court will be rendered hollow if the party does not have the right to be informed of the case to which he is responding. This directly affects the right of equal access to the court. AG v. Tang Yuen-lin is a far cry from the principle of equality and contrary to the development of a bilingual legal system in Hong Kong. In interpreting a constitutional document, the BOR, the court should adopt a liberal approach. Once the defendant has established that there is a breach of procedural fairness, the burden should not be on him to prove prejudice and delay. It is urged that court documents (including charge sheets or indictments, depositions, witness statements, pleadings, affidavits, judgment reasons and orders) should be made available in both official languages for parties in need. They are essential for the fair running of the legal system. Trial process Under s.5 of the Official Languages Ordinance,27 proceedings in the Magistrate’s Courts, Juvenile Courts, the Labour Tribunal, the Small Claims Tribunal, the Immigration Tribunal, and any inquiry by a coroner may be conducted in either English or Chinese language. Under s.6 of the Official Languages Ordinance, English remains the primary language of business in the Land Tribunal, the District Court, the High Court and the Court of Appeal. Under s.6(2), the Chief Justice may, by notice published in the Gazette, specify that proceedings in the aforesaid tribunals and courts be conducted in Chinese. However, this can only be done at the ‘discretion’ of the Chief Justice. It is not the ‘right’ of the parties involved. A big step forward was made when the District Court Civil Procedure (General) (Use of Language) Rules and the


Criminal Appeal (Amendment) Rules came into operation on 16 February 1996.28 Civil proceedings in the District Court and criminal appeals in any appellant jurisdiction in Hong Kong may now be heard in either official language. From January 1997, defendants can also choose to have criminal cases in the District Court heard in Chinese.29 However, judges have the final decision making power on the choice of the language in any proceedings. The choice of official language in criminal proceedings in the High Court, and civil proceedings in the High Court and the Court of Appeal are still dependent on the ‘discretion’ of the Chief Justice under s.6(2) of the Official Languages Ordinance. Discussion in this section will, therefore, be divided into two parts: first, where there is a prima facie right to use the official language of one’s choice; and second, where language rights are dependent on the discretion of the Chief Justice. The right to use the official language of one’s choice? If the right to use the official language of one’s choice has been duly recognized, the next question will be to decide the ‘scope’ of this right. Does the right to use one’s language in court imply the right to have a judge who understands the language spoken? Is the party entitled to have a counsel who speaks and understands his language? What if there is more than one defendant in a criminal trial and they cannot agree on the choice of language to be used? In simpler terms, can a defendant insist that his trial (except for the examination of a witness who does not understand and speak the chosen language) be conducted entirely in the language of his choice? Answers to the above questions have to be further divided into the theoretical and practical aspects. On legal principle, I would argue strongly that the party involved should be able to exercise his right. However, the reality is that Hong Kong may not be ready to take up the consequences of the full enforcement of language rights during trial process at the present moment. The authority30 that supports the right of the defendant to have a criminal trial conducted in his language is Paquette v The Queen.31 Mr. Justice Sinclair in ruling that the reliance on interpretation services would prejudice the rights of the accused said, ‘if one person speaks a language to another who is unable to directly understand what is being said, the language is not being used for its fundamental purpose of effective communication...’.32

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However, this ruling was overruled by the Supreme Court of Canada in Société de Acadiens du Nouveau Brunswick v. Minority Language School Board No. 50 and Association of Parents for Fairness in Education.33 The Court was asked whether a hearing of the New Brunswick Court of Appeal should be declared null by reason of the fact that one of the three judges sitting in a case conducted in French was not French-speaking and allegedly did not understand the language. Mr. Justice Beetz, who delivered the majority judgment made three controversial points. First, the Supreme Court held that the ‘right to address’ the Court in a given language must be distinguished from the ‘right to be understood’ in that language. Second, a distinction was drawn between fair hearing rights and equality rights of the official language. Third, language rights are founded in political compromise and should not be viewed as ‘seminal rights’. The court concluded that ‘unlike language rights which are based on political compromise, legal rights tend to be seminal in nature because they are rooted in principle...’.34 The question of whether language rights are seminal or not naturally leads us to look at the nature of the interests involved. Individual rights are intrinsically valuable for the security and identity of a person. The importance of language rights is best articulated in Re Manitoba Language Reference, 35 in which the Supreme Court of Canada had this to say:

The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing human beings to delineate the rights and duties they hold in respect of one another, and thus to live in society.

Language is a ‘constitutive feature’ of common life (Green, 1987: 651). If the right to use, to speak one’s language does not go hand in hand with the right to be understood in the language of one’s choice, the rights are ‘handicapped’ rights.

The second argument propounded by the court was that the right to be understood and to receive the services of an interpreter arose from the requirements of natural justice and was not related to the principle of the equality of the official languages. As long as the judge could understand the proceedings, the evidence and the arguments, regardless of which language the case was heard in, justice had been done. If there is a fine distinction between


procedural fairness and language rights based on equality, one can equally argue that the right to use an interpreter is entirely distinct from the right to be tried in a particular language.36 Interpretation is an indirect form of communication, which often comes at the cost of the loss of important meanings. For example, in Hong Kong most witness statements are originally recorded in Chinese but examination (including cross-examination and re-examination) of witness in courts is done in English. Discrepancies between the original statements and oral evidence, and between the original statements and their English translations often arise. If trials are conducted in Chinese, such problems can be avoided. In Woodrow Wilson’s terms, interpretation is the ‘compound fracture of an idea’ (Stevens, 1967: p.705). Psychological nuances such as ‘the effect of intonation, of candour, of inflexion, of command of language and a cultivated presentation of the case, of mastery of complicated issues, and, where appropriate, a touch of humour, of drama, a well-timed quotation’ (ibid.) cannot be easily interpreted. Adherence to language rights implies an offer of ‘a real choice’ to the parties. Equal opportunity should be given to members of a language group to appear before a court and to be heard, to be understood, in their official language of the place of trial; as well as an opportunity to appear before officers of the court who speak that language (Bastarache, 1987). The right to use the language of one’s choice in courts entails not only the right to effective communication, but also the assurance of equal access to courts.

Rarely does one see a distinction drawn between political compromise and seminal rights in human rights analysis. The Supreme Court of Canada’s decision of Société de Acadiens du Nouveau Brunswick raises the fundamental question of what the objective of legal bilingualism is. It must be more than the mere proper functioning of the court proceedings. The ultimate goal should be the enhancement of the right of equality before the law to which all those affected by it are entitled. The choice of language used in court also goes beyond the issue of political compromise. The language chosen may have a direct effect on the functioning of the judicial process and particularly on the effectiveness of those who participate in it. Lawyers might be discouraged to use their clients’ official language in court if the judges do not understand that language. Greater pressure will be exerted on lawyers, whose primary duty is to persuade the judges, to render interpretation service unnecessary, and to adopt the language of the judge rather than that of his client (Magnet, 1982). As a result, I would argue that the Canadian authority of Société de Acadiens du Nouveau Brunswick should not be followed in Hong Kong. The upholding of language rights in the lower courts in Hong Kong requires that the parties have

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the right to use the language of their choice and to be understood in that particular language. Parties should be able to choose to have cases heard before judges who are proficient in that language. What would the position be if the defendants concerned had a conflict in the choice of the language to be used? In the Canadian case of R v. Lapointe and Sicotte,37 the two defendants were charged with robbery and the use of firearms in the commission of an offence. The legal counsel of Sicotte only spoke English while the counsel of Lapointe wished to use French. One thing that both counsel agreed was severance of trials. However, the court ruled that for jointly charged offences, it was ‘in the interests of justice’ that the accused be tried by a bilingual judge and jury. This was also in compliance with the interests of the accused and the interests of the administration of justice. The issue of cost could never outweigh the probability of a miscarriage of justice. The Canadian position is certainly a welcome move in the area of bilingualism and the recognition of language rights in the court room. However, the practical implementation of bilingualism or the exercise of one’s right to use Chinese in court may prove to be difficult. Insistence on having a case heard in Chinese may easily backfire on the party concerned. Given the predominant number of expatriate judges and legal counsel in Hong Kong, defendants very often have to face an English-speaking judge or be represented by an English-speaking lawyer. If a defendant insists on being tried by a Chinese-speaking judge or on being represented by a Chinese-speaking counsel, he may face a longer waiting period and a limited choice of counsel and judges will be available to him. A recent study revealed that 80% of solicitors fear greater use of Chinese in written communication would make them less efficient. About 61% said greater use of Chinese would affect the quality of their work. 40% were dissatisfied with the official Chinese text of the statute and the ability of judges to hear cases efficiently in Chinese.38 One can only say that bilingualism or the use of Chinese language in court is a long-term and gradual process. It is hoped that the implementation of language rights and the legal principle of upholding language rights can be matched in the near future. Right vs. discretion The problem facing the High Court and the Court of Appeal is entirely different from that facing the lower courts. One does not have a ‘right’ to use the official language of one’s choice (except in criminal appeal cases). The


distinction between higher and lower courts is based on the belief that higher courts have to deal with legal points calling for the support of authorities (the sources of which are in English with no available Chinese translation) while lower courts are more concerned with factual arguments (Chen, 1985). However, this confirms and reinforces the image that English is the superior language, which belongs to the authority and represents the ‘strongest’ law, when used in the higher courts. A distinction is also drawn between ‘force’ and ‘form’ of law (Derrida, 1990). When law is clothed in English as in the higher courts, it has ‘persuasive-rhetorical force’. Though law can also be argued and understood in Chinese in the lower court, it is reduced to a mere ‘performative force’ for basic communication. It loses its authoritative backing. This may be illustrated in the exercise of the Chief Justice’s discretion to have cases heard in Chinese in the High Court. In December 1995, Hong Kong had its first High Court case heard in Chinese. The Chief Justice exercised his discretion to use Chinese in the case of Sun Ey-jo v. Lo Ching and others,39 where the plaintiff brought an action against her children, claiming that they were holding property on trust for her on the basis of an oral arrangement. The title deeds of the land concerned were all written in Chinese and dated back 30 years. The parties did not know English and were not represented by lawyers. In 1996, Ng Ching-man & others v. Eliza Ng Lai-wah & others40 became the second High Court case to be heard in Chinese. The case centered around the validity of a marriage celebrated in accordance with the Chinese tradition in the period of Japanese occupation of Hong Kong in World War II. Surprisingly, cases heard in Chinese in the High Court are civil disputes.41 From the two cases of Sun Er-jo and Ng Ching-man, one can deduce that the ‘special reason’ for the High Court to exercise its ‘discretion’ to hear cases in Chinese is that the written documents at issue or the customary rites date back to the war time period. In this regard, the use of Chinese in the High Court may not bear any connection with language rights. It may have a closer connection with the difficulty of obtaining and translating evidential documents and establishing a customary practice. In the editorial note of the case Sun Er-jo, a note was made that the case was a ‘landmark in the maturation of a bilingual legal system in Hong Kong’.42 Despite the increasing use of Chinese in higher courts, Hong Kong people cannot insist on the use of Chinese as an official language in their dealings with the Judiciary. In 1996, the Hon. Mr. Justice Michael Wong refused to hear appellant cases in Chinese from magistrates courts where both parties were

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Chinese, although he was fluent in both spoken and written Chinese.43 The discretionary nature of the present court system actually involves a denial of the fundamental right of equality and non-discrimination. Worse, there is no guideline for the exercise of discretion on the judges’ part.44 It can be an entirely arbitrary process. Under the present system, parties are forced to rely on interpretation services. Article 11(2)(f) of the Hong Kong Bill of Rights provides that a defendant in a criminal trial shall be entitled in full equality ‘to have the free assistance of an interpreter if he cannot understand or speak the language used in the court’. Though interpretation is provided in court, it is to be noted that consecutive interpretation service is for parties and witnesses in examination (including cross-examination and re-examination). While simultaneous interpretation is given by a dock-side interpreter to the defendants during counsel arguments and submissions, and the delivery of judgment, the court interpreters are not trained for simultaneous interpretation. The arguments and submissions may not be fully and correctly conveyed. Criticisms have been levied at the competence of court interpreters and the standard and quality of court interpretation has been described as ‘variable’ or even of ‘execrable quality’ (Zhao, 1997: 301). It may be better if the entire process of interpretation were consecutive and done in open court, where misinterpretation can be detected and brought immediately to the attention of the parties concerned. The disadvantages in having an English only trial can be devastating and involve issues of discrimination and denial of justice against Chinese-speaking individuals. Inaccurate interpretation may even lead to miscarriage of justice (Lau, 1997). Jury participation It was not until July 1997 that Hong Kong had its first jury trial in Chinese. In the past, under the then s.4 of the Jury Ordinance,45 a juror needed to have ‘a knowledge of the English language sufficient to enable him to understand the evidence of witnesses, the address of counsel and the Judge’s summing up’. The requirement of proficiency of English in Hong Kong, an overwhelmingly ethnic Chinese city, implied that most jury members were well-educated, middle class, professional or business persons. The great majority of the local population, whose native language was Chinese, were ineligible for jury service. Given that the majority of evidence in most cases was given in Chinese, whereas the jurors were proficient in English, there was a growing gap between


various sectors in society. Moreover, expatriates were grossly over-represented in the list of eligible jurors. In 1989, Hong Kong’s population was 5.75 million, of which 4 million were in the right age group for jury services. Yet only 143,798 names appeared on the latest List of Common Jurors issued in 1987. About two-thirds of these were Chinese. Expatriates from Europe, Australia and North America, who only constituted 2% to 3% of the total population ended up composing one-third of the jury list (Duff, 1992). In 1996, the potential pool of jurors were 260,000, about 6.5% of the adult population in Hong Kong (Lau, 1997). The small percentage was due to the fact that the jury list only comprised adults who had passed A-level examinations. Thus, Hong Kong’s juries were hardly representative of a cross-section of society, nor were they a ‘microcosm of democratic society’ (Duff, 1992: p.118). This might defeat the primary purpose of having a trial jury if the jury is the last guarantee of popular justice, the epitome of the ‘rule of law’ and the symbol of representative government. The language requirement resulted in the systematic exclusion of a large group of local people from jury service. Wong (1995: p.156) criticized the jury criterion as a form of ‘wholesale discrimination’ which deprives one of equal protection under the law. According to Chen (1989: p.217), this system may only ‘intensify the professional and elitist character of the legal system and ignores the democratic ideal of popular understanding of and participation in the legal system by which the masses are governed’. Trial by jury in Hong Kong has become a peculiar institution of colonial rule in which the defendants may lack a sense of identification with the legal system. Even the jurors, whose daily language for communication is Chinese, may also suffer from a sense of alienation. Trials have been aborted because jurors confessed they could not comprehend the trial proceedings in English (Lau, 1997). This situation may improve as the recently enacted Jury (Amendment) Ordinance of 199746 has abolished the English language requirement. Section 4(1)(c) of the amended Jury Ordinance only requires a person to have ‘a sufficient knowledge of the language in which the proceedings are to be conducted to be able to understand the proceedings.’ Hong Kong had its first trial in Cantonese in August 1997.47 Counsel on both sides agreed that the trial process had been speeded up. However, it may be too early to draw conclusions on the actual effect of having jury trials in Chinese. In fact, a second jury trial was due to commence in August but the defendant changed his mind and opted for an English trial at the last minute.48 One of the

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potential problems of jury trial in Chinese is that longer waiting time (including appeal procedure) is required as the case cannot be considered by lawyers and judges who are only fluent in English. There is also the problem of balancing written Chinese and colloquial Cantonese. Law-recording and law-reporting system The recognition and development of Chinese language in court must go hand in hand with a bilingual law-recording and law-reporting system. The records of proceedings or transcripts of proceedings are the official records of trials made by judges. They serve two important functions. Judges keep the transcripts to enable them to come to a decision and the transcripts are required for appeals. The present practice is that judges keep notes of evidence and submissions in English even if the trials are run in Chinese. This happens frequently in the magistrates’ courts. This is partly due to the fact that judges receive legal education in English and partly due to the fact that it usually takes longer to write in Chinese than in English. Most magistrates, presiding officers and adjudicators find it difficult to keep records in Chinese.49 The problem ensuing from such practice is that error can easily occur. When a judge writes his notes of proceedings in English while the trial is conducted in Chinese, he has to be an interpreter himself. Mistakes or discrepancies in translation will not be immediately known. In addition, this may prejudice a subsequent appeal case by the defendant when he has to rely on the record of the court proceedings. The significance of a law recording system in the original language of the trial has been outlined in the Canadian Supreme Court judgment in R v. Mercure.50 Mr. Justice La Forest held that court proceedings must be in the language used in making the statement.51 The right and the power of the defendant to use the language of his choice in court will be seriously ‘truncated’ if records are in another language as the case may continue in an appellant forum and judges may need to refer to the exact words used by a person at trial. From a macro perspective, the systematic records of judgments also serve a vital function in the development and standardization of Chinese legal


language.52 The problem in Hong Kong may be more complicated than in Canada as there is a discrepancy between spoken Cantonese and written Chinese.53 There are many colloquial terms which are said to be ‘unsuitable’ to be written down. This problem can, however, be easily solved. Since all courtrooms have been equipped with audio-recording systems and trials are recorded on tape, the tape should be the official record. The tape can be transcribed and translated into English when the defendants or the non-Chinese speaking judges of the Court of Appeal require the records. In this way, trials can be conducted faster and interpretation error caused by trial judges will be minimized. In the event of appeals, parties should be entitled on application to a translation of the transcripts of proceedings or the tapes of record. Until fairly recently, the Hong Kong law-reporting system was unilingual. Most cases were heard and reported in English. Lately we have seen cases reported in Chinese when they are heard in Chinese. No case has been reported in bilingual form. However, occasionally, ‘Hong Kong Cases’ published by Butterworths have bilingual headnotes for cases. A bilingual law-reporting system is important for the future standardization of legal language, the setting and following of precedents, and for reference in legal education. The difficulty facing the recording system and a bilingual law reporting system is largely the constraints of finance and manpower. First, the cost of having law reports in more than one language is high. Secondly, a bilingual law reporting system will certainly give rise to disputes as to the meanings of words in the two languages. Lastly, lawyers and judges will be expected to have a good command of both languages before they can fully grasp the intricacies of legal arguments. This indirectly implies reform of the present legal education system. Legal education in the City University and the University of Hong Kong is mainly in English. The development and continuing survival of a bilingual legal system is dependent on future lawyers. Legal education should therefore be geared to language proficiency in both Chinese and English legal language. These practical and economic concerns should not be viewed as insurmountable obstacles. They are problems that Hong Kong must face and must tackle.

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Conclusion As Magnet (1986: p.230) states, an ‘effective system of official bilingualism must embody an intelligible network of principles by which the exercise of official language rights by a person or groups can be reconciled with equal opportunity for other persons or groups to enjoy them’. The development of a bilingual legal system and the recognition of the Chinese language in court are fairly recent events. They started as a political effect of the change of sovereignty in 1997. Prima facie, the rights of the local population to use Chinese in the judicial system have been enshrined in the Official Languages Ordinance and the Bill of Rights. On closer examination, the language rights recognized in the legislature are only ‘permissive’ and passive. The parameters of legitimacy have been redefined and highly regulated by a conservative attitude of the judiciary, especially in pre-trial proceedings. In trial proceedings, defendants are forced to rely on interpretation services. Their language rights have further been reduced to the status of a ‘discretion’ beyond their reach. Since there is a growing trend to use Chinese in the District Court and the High Court, clear guidelines should be set for the use of the official language of one’s choice. This will certainly have drastic implications for appeal cases.

At this stage, it is unclear what the legal language policy is for the Court of Final Appeal in Hong Kong. The parties concerned need to know whether it is their ‘entitlement’, their ‘right’ or whether it is just a ‘policy’ for judges to implement bilingualism in court. Furthermore, the implementation of jury trial in Chinese is at an embryonic stage. Though the principle behind it is welcome, there are administrative problems to be solved. Until the administrative problems of waiting time, the discrepancy between written and colloquial Chinese and the lack of bilingual personnel can be solved, parties may be reluctant to exercise their ‘rights’, feeling that their interests have been endangered. Lastly, the development of a Chinese law-recording and law-reporting system is essential but overburdened by concerns of economic and manpower feasibility. A bilingual legal system cannot be sustained without the training of bilingual legal personnel. At the present moment, the lack of bilingual judges results in longer waiting time for parties who choose to have cases heard in Chinese. Parties may also have a limited choice of counsel to represent them.


This paper has pointed out more problems in our present legal bilingual system than it has tried to solve. The recognition of language rights goes beyond a political aspiration: it implies recognition of affirmative duties on government to promote and stimulate participation in and access to the system. Hong Kong is changing from a monolingual legal system, alien to the vast majority of the local population, to a bilingual legal system. A truly bilingual legal system will mean equal status of English and Chinese as the legal language, not just the replacement of English by Chinese. A bilingual legal system cannot come into being overnight, yet the difficulties that the system is facing should be tackled. Measures which disallow the full implementation of a bilingual legal system, especially those caused by financial constraints and lack of manpower, should be viewed only as transitory and ‘stop-gap measures’. Concrete long-term plans with deadlines for the implementation of a bilingual legal system should be made without delay. Notes * I would like to thank my colleagues Professor Johannes Chan and Professor Betty Ho for their valuable comments. Errors are my own responsibility. ______________________________ 1 Speakers for the legal year of 1997 were Mr. Christopher Chan, President of the Law

Society; Ms. Gladys Li, Chairperson of the Bar Association; Mr. Jeremy Matthews, the Attorney General and Mr. Justice Power, the Acting Chief Justice. See Hong Kong Lawyer, ‘Bilingual Debate Dominates Opening of Legal Year,’ February 1997, pp.4-5.

2 Annex I of the Joint Declaration states that ‘[i]n addition to Chinese, English may also be used in organs of government and courts in the Hong Kong Special Administrative Region’.

3 Before 1989, all ordinances were enacted and published in English only. The Official Languages (Amendment) Ordinance (Cap. 5) in 1987 and the Interpretation and General Clauses Ordinance (Cap. 1) of 1986 laid down the legal framework for bilingual legislation. The Bilingual Laws Advisory Committee (BLAC) was set up in October 1988 to scrutinize translated texts produced by the Law Drafting Division of the Legal Department. In the first two years, the work of BLAC in scrutinizing the Chinese texts was very slow. However, the process was suddenly speeded up in 1994. In December 1996, the Attorney General announced that the Chinese translation of all ordinances and subsidiary legislation which were enacted in English had been completed.

4 Defending the Law’, Hong Kong Lawyer (May 1997) pp.38-39.

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5 ‘Justice Yang Heard Appeal Case in Chinese, Expatriate Counsel Agreed Under Efficiency Principle’, (translation by author) Ming Pao (May 3, 1997) A9.

6 Although consecutive interpretation service is now provided by the Judiciary in court proceedings, it is insufficient to protect a defendant’s rights. This will be discussed in the section ‘Trial Proceedings’.

7 The First Report of the Chinese Language Committee, chaired by Sir. K.P.F. Fung. (Hong Kong Government Printer, February 1971).

8 In 1974, the Official Languages Ordinance (Cap 5, L.H.K. 1974 ed., later amended in 1987) was enacted. Section 3(1) provided that ‘the English and Chinese Language are declared to be the official languages of Hong Kong for the purposes of communication between the Government or any public officer and members of the public’. However, section 4(1) added that ‘every Ordinance shall be enacted and published in the English language’. Section 5 and the Schedule stipulated that proceedings in the magistrates’ courts, any inquiry by a coroner, any juvenile court, any labour tribunal, any small claims tribunal and any immigration tribunal might be conducted in Chinese; whereas proceedings in the Court of Appeal, the High Court, the District Court and any other courts not specified in the schedule must be conducted in the English language. As a result, Hong Kong only witnessed a growing trend towards the use of Chinese in public administration but not as the language of the legal system.

9 The report recommended greater use of Chinese within the government, setting up new training programs, new entry qualifications and the use of Chinese computer programs.

10 In Ford v. Quebec ([1988] 2 S.C.R. 790), the Canadian Supreme Court ruled that the legislative requirement for the exclusive use of French in commercial and financial documents would violate freedom of expression as a private activity.

11 Cap. 383, Laws of Hong Kong (L.H.K), (1991 ed.). Article 1(1) stipulates that ‘[t]he rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status’.

12 Article 22 states that all persons ‘are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language..’.

13 Entrenchment in law means an overriding power or a superior status over other legislation. Until June 30, 1997, the Hong Kong Bill of Rights Ordinance was entrenched through article VII(3) of the Letters Patent which stated that ‘no law of Hong Kong shall be made after the coming into operation of the Hong Kong Letters Patent 1991 (No. 2) that restricts rights and freedoms enjoyed in Hong Kong in a manner which is inconsistent with that Covenant as applied to Hong Kong’. The


Covenant refers to the ICCPR. From July 1, 1997, the Letters Patent, as a piece of colonial legislation, is no longer applicable to Hong Kong. Automatically, this leads to the loss of the entrenched status of the Hong Kong Bill of Rights Ordinance.

14 Edward III, c15.

15 4 George II, c.26.

16 The Chief Justice, Mr. T.L Yang (Chairperson), ‘Report of the Chief Justice’s Working Party Into Greater Use of the Chinese Language In Courts and Court Procedure’, 1988. In 1992, Mr. Justice Patrick Chan chaired the ‘Working Party on the Use of the Chinese Language in the District Court’. In 1993, Mr. Justice Henry Litton chaired the ‘Working Party on the Use of the Chinese Language in the Law’.

17 (1993) 3 H.K.P.L.R. 298.

18 p.307, Ibid.

19 Section 5 states that except for certain circumstances, judicial proceedings or any part of them can be conducted in either official language.

20 [1995] 1 H.K.C. 209, also in (1995) 5 H.K.P.L.R..

21 p.213, Ibid.

22 p.213, Ibid.

23 p.215, Ibid.

24 Both the results in Tse Kim-ho and Tang Yuen-lin can be said to be unsatisfactory. In Tse Kim-ho, language rights were recognized but the ruling of dismissing the charge and the trial could be seen as a drastic measure. A retrial should have been ordered. On the other hand, Tang Yuen-lin did not even recognize right of the defendant to be informed in a language that he knew. Mr. Johannes Chan urged that a distinction should be drawn between language rights and the appropriate remedy (personal communication).

25 Supra note 17.

26 Supra note 20.

27 Cap. 5 of 1987 was amended by the Official Languages (Amendment) Ordinance (No. 51 of 1995) in July 1995.

28 The District Court Civil Procedure (General) (Use of Language) Rules (L.N. 589 of 1995) and Criminal Appeal (Amendment) Rules 1995 (L.N. 53 of 1996) attempt to amplify the rights of various parties to use either official language in District Court civil proceedings and in criminal appeal proceedings. The Rules have been operative since February 1996 (L.N. 107, B522; L.N. 111, B530).

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29 Circular No. 20/97 (PA) of the Law Society, ‘District Court: Criminal Trials in Cantonese,’ Circular no. 20/97 (PA), mentioned that legal representatives may be asked by the Listing Judge whether their clients prefer their trial to be conducted in English or Chinese.

30 Traditionally, Canadian cases only have persuasive but not binding authority in Hong Kong courts. Essentially, it is a judicial decision as to how much weight the court is willing to condone on Canadian authorities. In the area of human rights, there has been heavy reliance on Canadian authorities as witnessed in R v. Sin Yau Ming (1991) 1 H.K.P.L.R. 88; [1992] 1 H.K.C.L.R. 127. After 1 July, 1997, there may be a growing recognition of Commonwealth cases in addition to English authorities.

31 (1985) 40 Alta, LR (2d) 38 (QB).

32 p.57, Ibid.

33 [1986] 1 S.C.R. 549.

34 p.578, Ibid.

35 [1985] 1 S.C.R. 721 at 744.

36 The Canadian decision has been subjected to severe academic criticism. For further discussion, see L. Katz’s and A. Tremblay’s comments in M. Bastarache, ‘Bilingualism and the Judicial System’, in Language Rights in Canada, p.137.

37 (1982) 64 C.C.C. (2d.) 562.

38 G. Manuel, ‘Judiciary Crisis Over Use of Chinese’, South China Morning Post (27 April 1997) p.1.

39 [1996] 1 H.K.C. 1.

40 Case No. MP 2546/94.

41 As civil cases are disputes between individuals in their private capacities, they are rarely formulated as an issue of ‘language rights’. Definition of official legal language in court covers mainly the area of criminal cases or administrative matters where the government is a party.

42 Supra note 39, p. 4.

43 ‘Mr. Justice Michael Wong Refuses to Hear Cases in Chinese,’ (translation by author) Ming Pao (24 December 1996).

44 Back in 1993, the ‘Working Party on the Use of the Chinese Language in the District Court’ had already recommended a Practice Direction for the exercise of discretion. Trials should be conducted in Chinese if four conditions are satisfied. They are: (1) when both parties are Chinese speaking or consent to the use of Chinese at the trial; (2) when both legal representatives are Chinese speaking; (3) when the judge is conversant with Chinese; and (4) when there is no good reason nor special


circumstance against the use of the Chinese language at trial. (Mr. Justice Patrick Chan, Chairperson, ‘Report of the Working Party on the Use of the Chinese Language in the District Court’, December 1993. Document kindly obtained from the Judiciary, para.10.9.) These recommendations were not adopted.

45 Cap. 3, L.H.K. (1995 ed.) Section 4 states ‘Every person between the ages of 21 and 65 years, being of sound mind and not afflicted with deafness, blindness or other such infirmity, who is a good and sufficient person resident within Hong Kong, and who has a knowledge of the English language sufficient to enable him to understand the evidence of witnesses, the address of counsel and the Judge’s summing up’.

46 Ordinance No. 72 of 1997, enacted on 27 June 1997.

47 ‘Seven Jurors Chosen For First Trial in Cantonese’ South China Morning Post (5 August 1997).

48 ‘Chinese in Trials Meets With Approval’ South China Morning Post (7 August 1997).

49 Mr. Justice Patrick Chan (Chairperson), ‘Report of the Working Party on the Use of the Chinese Language in the District Court’, December 1993. para. 10.16.

50 [1988] 1 S.C.R. 234.

51 p. 276, Ibid. 52 As Hong Kong’s legal system is largely based on the English common law system,

there is a lack of uniform standardized Chinese legal terms. At the present moment, the Hong Kong Government has published the English-Chinese Glossary of Legal Terms (Hong Kong Government Printer, 1996) as a reference for standard translation of English expressions and terms that appear in the statutes. However, in the area of case law, there has not been a coordinated effort to compile such a standardized Chinese reference for English common law terms.

53 For examples illustrating the difference between spoken Cantonese and written Chinese, see Leung Fook-lun, ‘The Problem of Colloquial Chinese In Court,’ (translation by author) Xin Pao (10 January, 1997) p.5.

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