LegCo Panel on Administration of Justice and Legal Service
Meeting on 26 October 1996
The Judiciary’s Preparation for
the Use of Chinese in Courts

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Purpose
Objective
Use of Chinese in Court Programme
The Judiciary’s Preparation

A. Legislative amendments and Rules of Court
B. Equipment
C. Court Operation
D. Training

• Judges and Judicial Officers
• Non-Judicial Personnel
Conclusion

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Purpose

This paper seeks to state the Judiciary’s objective in the Use of Chinese in Courts Programme and to inform Members of the Judiciary’s preparation made in support of that programme.

Objective

2. The Judiciary’s objective in the use of Chinese in courts is to put in place a bilingual court system in which either English or Chinese can be used by 1 July 1997.

3. All along, accused persons, litigants and witnesses have the right to use whatever language they wish, with interpretation if necessary. Since 1974, lawyers and magistrates can use either of the official languages in the Magistracies. The same applies to the District Court since February 1996. At present, Judges of the High Court and above and lawyers appearing in those courts are prohibited from using Chinese in court. The Judiciary is seeking to remove this restriction on a phased basis.

4. Contrary to a misconception voiced regrettably by some lawyers and legislators, the Judiciary does not push parties and lawyers to use Chinese. The responsibility for the proper conduct of a case remains always that of the judge. In this regard the use of language will be an important factor since, by 1 July 1997 at the latest, Chinese will be an official language in all the courts. Before deciding whether the use of Chinese is appropriate for a particular case, the judge will of course consult all parties concerned. The guiding consideration in the choice of languages should be to ensure the just and expeditious disposal of the cases.

5. From the experience of the Magistrate’s courts and the District Court where Chinese can now be used, the Judiciary anticipates the use of Chinese in courts to be a gradual process. It is a momentous undertaking that will take time to develop and mature. Its rate of progress and outcome depend ultimately on the state of readiness of all participants in the legal system and whether they wish to make it work.

Use of Chinese in Court Programme

6. The Chief Justice appointed a Steering Committee in 1994 to plan and co-ordinate the use of Chinese in the higher courts. The Steering Committee was chaired by a High Court Judge. Its membership comprises Judiciary representatives and representatives of the Director of Administration, the Bar, the Law Society, the Attorney General’s Chambers, the Legal Aid Department, the Faculty of Law of the University of Hong Kong, the Department of Chinese, Translation and Linguistics of the City University of Hong Kong.

7. In September 1994, the Steering Committee responded to a suggestion from the then LegCo Panel on the Administration of Justice and Legal Services to look into the feasibility of using simultaneous interpretation in court proceedings. It appointed a study group to conduct an in-depth study into this matter and to identify any difficulties arising therefrom. After from studying the issue and reviewing practical examples of simultaneous interpretation to assess their applicability to court proceedings, the Study Group also initiated two mock trials to test the operational viability of simultaneous interpretation. After much deliberations, the Judiciary has concluded that simultaneous interpretation was not a feasible mode of interpretation for court proceedings and that consecutive interpretation will continue to be used as the means of interpretation in the courts.

8. The timetable laid down by the Steering Committee is as follows:

The Judiciary’s Preparation

9. In pursuance of the phased implementation strategy laid down by the Steering Committee, the Judiciary undertook the following preparatory work:

A. Legislative amendments and Rules of Court

1. Seek amendments to the Official Languages Ordinance to remove the legal impediment to Chinese being used in the higher courts. The Official Languages (Amendment) Ordinance was enacted in July 1995.
2. Preparation of eight sets of Rules governing the use of Chinese in District Court and Lands Tribunal. These enabled Chinese to be used in the District Court and Lands Tribunal can use Chinese since February 1996.
3. Preparation of Practice Directions on the use of Chinese in the High Court is now in hand.
4. Seek amendments to the Jury Ordinance.

B. Equipment

1. Implementation of Digital Audio Recording and Transcription System (DARTS) in all courts not covered by court reporting services.
2. Pilot scheme for the production of Chinese transcriptions.
3. Extension of DARTS to the remaining courts of the High Court to ensure the keeping of comprehensive and accurate court records.
4. Exploring with the City University the feasibility of developing a Computer Aided Transcription system.

C. Court Operation

1. Non-statutory forms have been translated and are being vetted.
2. Judges’ specimen directions and specific directions for jury trials have been translated.
3. To facilitate the work of judges, judicial officers and court staff, the Judiciary’s Translation Service has undertaken the compilation of a glossary of terms and phrases commonly used in court proceedings. Sections relating to criminal cases, family cases and land cases have been completed;
4. The Judiciary’s Translation Service is starting to translate headnotes of cases reported in the Hong Kong Law Report and selected quotations from judges in landmark cases. Consideration is being given to having these translations published in professional journals.
5. Monitor and identify suitable trial cases so that operational problems could be addressed before the general uplifting of restriction for a particular level of the court. Two High Court cases conducted in Chinese in December 1995 and September 1996 respectively. Other suitable cases continue to be identified.
6. Feasibility study on the use of Simultaneous Interpretation in court concluded.

D. Training

Judges and Judicial Officers

1. Bilingual judges are having weekly discussions on Chinese specimen directions and specific directions for jury trials.
2. Bilingual judges will be asked to conduct mock summing-ups for training and evaluative purposes.
3. Bilingual judges are taking a course on Chinese writing skills.
4. Further mock trials will be organised in December for judicial officers. The legal profession has been invited to take part.

Non-Judicial Personnel

1. Court Interpreters are attending courses on Chinese writing and translation.
2. A few Court Interpreters attended a special course on the writing of legal documents in Chinese organized by the Beijing University.
3. Court Reporters have set up a core group to search for a suitable Chinese transcription production method and to design training for staff.

Conclusion

10. The Judiciary is committed to the use of Chinese in courts because:

1. any restriction on the use of Chinese in courts cannot survive after 1 July 1997 as it will contravene Article 9 of the Basic Law;
2. under the official languages policy, both the English and the Chinese versions of legislation are authentic texts. Under section 10B of Cap.1 (extracted at Annex A), the courts are obliged to reconcile any difference between the English and Chinese versions of legislation. It would be absurd if despite the enactment of bilingual laws by the Legislative Council, the courts are restricted to interpreting only the English version of the law. This point recently came up for decision in the High Court.

11. It is important to bear in mind that permitting Chinese to be used in courts does not necessarily mean that Chinese will be used in all cases. In each case, the judge has a discretion to use one of the official languages with the aim to ensure the just and expeditious disposal of the cases. The extent to which Chinese is used in the courts depends largely on the requirements of justice, taking into account the views of the accused, the litigants, their legal representatives and the suitability of using Chinese in each case. The Judiciary’s role is to provide a framework whereby parties wishing to use either official language may be able to do so.

12. The use of Chinese in courts is a complex programme. There are operational problems that require long-term solutions. Such problems include: common law precedents being in English, translation of the Laws of Hong Kong and the training of judges and lawyers etc. The Judiciary is committed to establishing a bilingual court system by 1 July 1997 and is satisfied that progress is being made on various fronts to remove the restriction on the use of Chinese in the higher courts. It recognizes that in the final analysis, it is up to the professional participants in court proceedings to see to it that using both official languages at all levels of court is not an objective but a reality.

Judiciary Administrator’s Office
16 January, 1997

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