DMA#1888

A PAPER DISCUSSING CASES WHERE THE TWO LANGUAGE TEXTS OF AN ENACTMENT ARE ALLEGED TO BE DIFFERENT

1.Background of bilingual legislation

1.1 English and Chinese were established as both the official languages of Hong Kong for the purposes of communication between the Government and the general public with the passage of the Official Languages Ordinance (Cap. 5) in 1974. However, until 1987, Cap. 5 had only provided for our statute law to be enacted in the English language.

1.2 The need for the production of an authentic Chinese version of Hong Kong’s written law was officially brought about by the Sino-British Joint Declaration. Section I of Annex I to the Joint Declaration provides that "in addition to Chinese, English may also be used in organs of government and in the courts in the Hong Kong Special Administrative Region".

1.3 In 1986, the Hong Kong Royal Instructions were amended to allow laws to be enacted in English or Chinese. This was followed by the amendments to Cap. 5 and to the Interpretation and General Clauses Ordinance (Cap. 1) in 1987. All those steps paved the way for the implementation of bilingual legislation in Hong Kong.

1.4 Section 4(1) of the Official Languages Ordinance (Cap. 5) now provides that all ordinances shall, subject to certain exceptions, be enacted and published in both official languages. The first bilingual Ordinance is the Securities and Futures Commission Ordinance (Cap. 24) enacted in April 1989. At present, except for subsidiary legislation made under existing monolingual Ordinances and for Ordinances amending those monolingual Ordinances, all statutes are enacted bilingually.

1.5 Apart from drawing up current legislation in bilingual versions, the Law Drafting Division of the Legal Department is also responsible for preparing Chinese texts for the statutes originally enacted in English only. The Chinese texts are declared authentic under section 4B of Cap. 5 by the Governor in Council after consultation with the Bilingual Laws Advisory Committee. The orders declaring the authentic Chinese texts are laid on the table of the Legislative Council and are subject to LegCo’s negative approval under section 34 of Cap. 1.

2.Status of two texts of a bilingual ordinance

2.1 In 1987, there was inserted into the Interpretation and General Clauses Ordinance (Cap. 1) a new Part IIA on the "General Provisions as to Laws in Both Official Languages". The principal provision in that Part is section 10B which lays down the general rule on construction of bilingual statutes1 .

1 Section 10B of Cap. 1 was modelled on Article 33 of the 1969 Vienna Convention on the Law of Treaties ("the Convention"). This papers makes reference mainly to the discussion on the drafting and interpretation of that Article in chapters 3 and 4 of Mala Tabory, Multilingualism in International Law and Institutions (Sijthoff & Noordhoff, 1980)

Another similar provision can be found in the previous section 8(2) of the Official Languages Act of Canada which was repealed in 1988. That section was worded differently from our section 10B and dealt also with reconciling the underlying common law and civil law systems in different parts of Canada (see generally Michael Beaupr,, Interpreting Bilingual Legislation ( Carswell, 1986 2nd edn) for the Canadian jurisprudence developed before and after the passage of section 8(2) of their Official Languages Act).

2.2 Section 10B(1) states the fundamental principle of equality between the two language versions of our laws. It provides that both language texts of an Ordinance shall be equally authentic, and the Ordinance shall be construed accordingly. This means the Chinese text is neither subordinate to, nor a mere translation of, its English counterpart.

2.3 Even in the case of an original monolingual enactment with its Chinese text subsequently declared authentic, although the two versions came into being at different times, they both had gone through the official scrutiny in their respective legislative procedures. Therefore whether the Chinese text of an Ordinance was enacted simultaneously with the English text, or was later declared authentic, it should be construed as equally valid and authoritative with the English text.

2.4 It is inappropriate to use words and phrases which suggest that the English texts enjoy a higher status or the Chinese texts are mere translations. The following table shows some examples.

To be avoided


To be used

l the Chinese translation


l the Chinese text/version

l the expression is translated as ....


l the Chinese equivalent of the expression is ....

l an error in the Chinese text/incorrect translation


l a difference of meaning/divergence/ discrepancy

2.5 The two authentic texts together make up the legislation. The court and legal representatives are therefore entitled to refer to and rely on both texts of an ordinance, whether the trial is conducted in English or in Chinese or partly in English and partly in Chinese2 .

2.6 Having said that, attention should be paid to the temporal application of the authentic Chinese text of an enactment if it was originally monolingual. This is where the two language versions of the same statute come into existence or take effect one after the other. The Chinese text of this kind should be regarded as operative from the date of its gazettal. It should not apply retrospectively to factual situations which arise after the commencement of the original English text but before authentication of the Chinese text3 .

2 The Queen v Tam Yuk-ha (MA No. 933 of 1996).

3 of The Queen v Tam Yuk-ha (note 2 above). In this case , the alleged offences were said to have taken place on 5th and 18th of December 1995 respectively. The Chinese text of the legislation in issue, the Food Business (Urban Council) By-laws ( Cap. 132 sub.leg.), was declared authentic by an Order of the Governor in Council made on 16 April 1996 and published in the Gazette on 26 April 1996. The issue on whether the court is entitled to refer to such Chinese text which existed at the time of the hearing but not at the time when the alleed offenceds were committed was ignored in that case , The court hsould be invited to examine this question further on an appropriate occasion in future. (see the detailed analysis in Part V of the paper entitled "R v Tam Yuk Ha and its implication" of December 1996 prepared by the Legal Services Division of the Legislative Council Secretariat.)

3. Interpreting Bilingual Legislation : General

3.1 Cases which turn on the meaning of words in the legislation are not uncommon. Interpreting modern legislation can be complicated and will be more so in a bilingual context. No particular rule of thumb may ‘unlock all mysteries’. The courts have over the years developed many rules or criteria for statutory interpretation. These rules4 should apply to interpreting both language texts, whether or not a discrepancy in meaning between them is alleged. In each case involving construction of legislation, the relevant rules and factors which may lead to different possible construction of the enactment in issue will be gone through in a weigh and balance process in order to arrive at a construction appropriate for application to the facts in that particular case.

4 This paper is unable to reproduce exhaustively the current juridical system governing the interpretation of legislation which comprise various binding rules, principle derived from general legal policy, presumptions of the legislative intenet and linguistiv canons of construction. Reference can be made to F.A.R. Bennion, Statutory Interpretation: codified with a critical commentary (London: Butterworths, 1984) and other authoritative texts on this subject.

3.2 The object in statutory interpretation is to determine and apply the "legal meaning" of an enactment, i.e. the meaning that conveys the legislative intention. Therefore legislative intention is said to be the paramount criterion in statutory interpretation and all interpretative rules and principles are the guides to arriving at the legislative intention5 .

5 Bennion (note 4 above), Part IV, V, VI and VII.

3.3 The legislature has generally delegated to the court the duty to provide an ultimate interpretation of the meaning of an enactment intended by it. The question of what an individual word or phrase means in the context of a statute is a matter of law. Even if the legal meaning of a term is uncertain, the court is obliged to take judicial notice of it and must determine its meaning where the decision of the case requires it. Given that both language texts of our statutes are part of the governing law, the court should be seen as no less competent in determining the legal meaning of a term in the Chinese text than one in the English text6.

6 Bennion (note 4 above), pp 806 & 819. It is submitted that the court should not, on the principle non liquet (it is not clear), decline to rule on the meaning of a Chinese term (see Bennion, p4).

3.4 When it comes to a technical non-legal term (i.e. a term other than that of the law prevailing within the court’s jurisdiction) which is shown to be intended for use in its technical sense, evidence may be adduced if its meaning is doubtful, whether it is a Chinese or English term7 .

7 Bennion (note 4 above), pp 821-2

3.5 If a statute contains a term derived from Chinese law and custom, which is one of the sources of our domestic law, the court can similarly take judicial notice of its meaning. Some areas of Chinese law and custom are said to have become common knowledge and may be accepted by the court without proof. Nevertheless, expert evidence has usually been sought for proving Chinese law and custom as if they were foreign law. When handling a case involving aspects of Chinese law and custom, besides looking up judicial precedents on the subject, expert evidence may also be considered if warranted in the circumstances 8.

8 Peter Wesley-Smith, The Sources of Hong Kong Law (Hong Kong University Press, 1994), chapter 12 and particularly pp216-7.

3.6 Not all plausible arguments on the uncertainty of statutory meaning are justified. There may well be difficulties in comprehending certain passages in a statute. However, once they are penetrated, the text may not truly pose any doubt as to its legal meaning. In bilingual context, it should first be decided, on an informed basis (taking into account, inter alia, the context and legislative history of the statute)9 , whether or not there is a ‘real’ (i.e. substantial as opposed to merely conjectural or fanciful) doubt or conflict as to the legal meaning of the two language texts of the law. Only if there is, will there be a need to proceed to resolve the doubt by applying the rules of bilingual interpretation10 .

9 For an informed construction, see Bennion (note 4 above), Parts X and XI

10 The Queen v TSE Hing San and others (MA No. 1395 of 1996).

4. Presumption of same meaning in bilingual texts

4.1 Section 10B(2) of Cap. 1 presumes the provisions of a statute to have the same meaning in each authentic language text. The two texts are taken to communicate an equivalent message in their own fashion. They are but two expressions of the same intent and together constitute one law embodying a single meaning. Words and expressions in one language should be deemed to bear the same legal effect as their counterparts in the other language of the same legislation11 .

11 Tabory (note 1 above), pp176 and 195 : Article 33(3)(the equivalent provision of our section 10B(2) in the Convention is said to safeguard the equal authority of all the authentic texts of multilingual treaties in interpretation, by stating the presumption that the terms of the treaty are intended to have the same meaning in each text.

4.2 Statutory interpretation is mainly concerned about the search of the legal meaning of an enactment, and that its legal meaning usually corresponds to its grammatical or literal meaning. It is when the two do not correspond, or when the grammatical meaning is ambiguous and thus causing a doubt in the legal meaning, that the need for statutory interpretation arises. The court will then have to decide whether the words of the enactment should be given a literal or strained construction in arriving at the legal meaning intended by the legislature12 .

12 Bennion (note 4 above), Part IV.

4.3 In bilingual interpretation, the court has to duplicate this process by construing the two versions of a statute together in order to arrive at a unified legal meaning so that a horizontal equilibrium between both texts can be attained.

4.4 When a real doubt about the single legal meaning of an enactment arises out of a divergence in the grammatical or legal meanings obtained from the two individual texts, the presumption of section 10B(2) becomes insufficient for solving the problem. At this juncture, one has to move on to section 10B(3) to resolve the "discrepancy". Section 10B(2) should not be treated as implying an interpretation which is semantically compatible with the two texts. The version which bears a narrower meaning does not necessarily prevail13 .

13 Tabory (note 1 above), pp198, 201 and 202: it is suggestion that upon discovery of an unclear passage, a textual divergence or a difference of opinion, the presumption in Article 33(3) ceases to hold and that it is uncertain wherther, and to what extent this presumption continues to provied guidance in those circumstances. It is therefore submitted that section 10B(2) itself should not be construed as a prescription for adoption the highest common meaning to both language texts.

5. Reconciliation under Section 10B(3)

5.1 Section 10B(3) deals with the case of a difference of meaning disclosed by comparison between the two authentic texts. Section 10B itself does not impose an express legal obligation to consult and compare both texts14 . Although there is no indication at what point in the interpretative process a comparison is to be undertaken, only parallel reading of the two versions can point to the existence of such a difference. In reconciling that difference, one should also ask the court to compare both versions despite the absence of an express statutory obligation to do so15 . Neither one of the versions should be preferred without considering the other.

14 Tabory (note 1 above) pp172, 198 and 198 and 199: Although the importance of comparing different texts in the process of interpretation was recognised during the drafting process of Article 33 of the Convention, it was not includded in the final version as a general principle of treaty interpretation. It was felt that to grant text comparison the status of a canon of interpretation would imply that it was impossible to rely on a single text to interpret a multilingual treaty.

15 Tabory (note 1 above), pp199 and 200.

5.2 Bilingual discrepancies are to be tackled in two steps according to section 10B(3). The rules of statutory interpretation ordinarily applicable should first be invoked to resolve the difference, failing which, the meaning that best reconciles the texts, having regard to the object and purposes of the statute, should be adopted.

5.3 Step One: Recourse to the Rules of Statutory

Interpretation Ordinarily Applicable

5.3.1 Section 10B(3) calls for an attempt to resolve the difference by first using the rules of statutory interpretation ordinarily applicable. These rules16 are voluminous and are partly statutory and partly decisional17 . A few guiding points are highlighted below.

16 Note 4 above.

17 Peter Wesley-Smith, An Introduction to the Hong Kong Legal System (OUP, 2nd edn), p.77 ff.

5.3.2 Basic enough, many terms are expressly defined in the statutes where they appear. Other definitions are found in Cap. 1 which applies generally to all statutes unless the contrary intention appears.

5.3.3 Cap. 1 in fact contains the general statutory interpretative guidelines. Apart from section 10B, there are two other provisions which are particularly relevant to bilingual construction -

· Section 10C

If an expression of the common law or rules of equity in force in Hong Kong is used in the English text while an analogous expression is used in the corresponding Chinese text, the statute should be construed in accordance with the common law meaning of that expression.

· Section 9

Chinese words and expressions in the English text should be construed according to Chinese language and custom.

5.3.4 Above all these, section 19 of Cap. 1 sets out the general principles of interpretation: a statute is deemed to be remedial (i.e. to supply defects in the law or give relief to aggrieved parties) and shall receive such a fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the ordinance according to its true intent, meaning and spirit18. Although there is no judicial consensus on the meaning and effect of section 19, it is generally contrasted with the traditional rule of strict construction which allows the benefit of doubt to be granted to the party against whom the statutory provision is to be enforced.

18 Wesley-Smith, (note 8 above), see chapter 14 for a review of the various cases in which section 19 of Cap. 1 had been discussed.

5.3.5 Section 19 reminds a court to so construe a statute as to give effect to the intention of the legislature. This may lead to either a restrictive or a more extensive meaning to the words than a literal interpretation can afford. It can be argued in a meritorious case that section 19 does authorise departure from a strict, literal construction in order to avoid unreasonableness or injustice especially in the light of a clear legislative purpose19 . Having said before, section 2(1) of Cap. 1 expresses that the application of any provision of Cap.1 to other statutes can be excluded where the contrary intention appears20 . The applicability of particular sections in Cap. 1 should be examined when interpreting an enactment.

19 Wesley-Smith (note 8 above), pp.240-1: citing Clayton [1973] 2 NZLR 211; Peter Klauser v R [1968] HKLR 201 and Kong Kam-pui v R [1973] HKLR 102.

20 Wesley-Smith (note 8 above), pp.233-4: discussing Sin Poh Amalgamated (Hong Kong) Ltd v Attorney General [1963] HKLR 77, [1964] HKLR 879, [1965] WLR 64. Three principles for establishing the contrary intention have been identified: that the person who alleges a contrary intention has the burden of proof, that the burden of proof needs only to be discharged on the balance of probabilities, and that a contrary intention should be discovered from the substance and tenor of the legislation as a whole. As such, it is submitted that the interpretative rules contained in section 10B and section 19 of Cap. 1, insofar as they ultimately fall back on the purpose and intent of the entire statute, should not be circularly displaced by virtue of section 2(1) of Cap. 1.

5.3.6 Judges have traditionally recognised three different rules of statutory interpretation: the mischief rule, the literal rule and the golden rule21 . Recent developments see a fusion of the several traditional rules, bringing about the interpretation of both the letter and the spirit of the law, i.e. the statutory context and the object of the legislation are to be considered altogether so that anomalous decisions will be avoided.

21 See generally Glanville Williams, Learning the Law (London : Stevens 11th edn) and Wesley-Smith (note 17 above).

The Mischief Rule refers to the legal position before the statute was passed and the mischief that the statute was intended to cure. The statute is then construed in such a way as to suppress the mischief and to advance the remedy.

The Literal Rule applies words of a statute in their natural and ordinary sense with nothing added and nothing taken away, even if an inexpedient, unjust or immoral outcome occurs, i.e. the court can neither extend the statute to a casus omissus [an omitted case which should have been, but has not been, provided for in the statute] nor curtail it by leaving out a casus male inclusus [a case that the statute literally includes, though it should not have].

The Golden Rule so construes a statute as to avoid absurdity or anomalies by adopting a secondary (or less usual) meaning which is also linguistically possible in order to produce a reasonable result. Sometimes, a judge may read in words which he considers to be necessarily implied by words already in the statute. He may even, to a limited extent, alter or ignore statutory words for reconciling an unintelligible provision with the rest of the text (for example, judges have occasionally corrected an "and" in a statute when it meant "or").

5.3.7 Section 19 of Cap. 1 has been said to 'enshrine' a purposive approach which is the modern version of the 'mischief rule' in legislative interpretation22 . Its essence is to take and give effect to the overall purpose if that can be done without straining the words or violating the intention of the legislature23 . In fact the process of judicial reasoning is so sophisticated that no one cure-all formula is available for the purpose of statutory interpretation. Different interpretative criteria and factors must be sifted and weighed against one another in each individual case24 .

22 Wesley-Smith (note 8 above), p238: citing Lee Pui-wah v Lam Wing-chung (1981) Vic DCt, CJA No.6538 of 1980.

23Wesley-Smith (note 17 above), p80.

24see Bennion (note 4 above) for a systematic approach of statutory interpretation.

5.4 Step Two: The Meaning which Best Reconciles the Texts

5.4.1 Section 10B(3) of Cap. 1 says if the rules of statutory interpretation ordinarily applicable do not resolve a difference of meaning, then "the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance shall be adopted". This second limb of section 10B(3) is itself open to interpretation

5.4.2 Section 19 of Cap.1 speaks of an interpretation which will "best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit" whereas section 10B(2) refers to the "object and purposes of the Ordinance". While "intent" and "meaning" relate more specifically to the imputed meaning and effect of the enactment in its application to particular factual situations (i.e. its legal meaning), "purpose" or "object" has an overall reference to the mischief which the enactment is designed to remedy.

5.4.3 Sections 19 and 10B(3) cannot be taken as in conflict because section 19 is of general application and looks for an interpretation that best ensures the attainment of the "object" according to the true "intent, meaning and spirit" of the enactment in question. The second limb of S10B just reiterates the relevance of the "object" of an enactment when resolving bilingual discrepancy25 . It is still subject to the approach of "a fair, large and liberal construction" in the light of the legislative intention under section 19.

25Tabory (note 1 above), p.174: there has been objections during the drafting of Article 33(4) of the Convention to a double reference to "object and purpose" as it has already appeared in the general rule of interpretation. The repetition of the element of object and purpose can be seen as a warning against abandoning the consistent regard for it even in the second step of reconciliation, when the other elements of the general rules of interpretation have been exhausted under step one.

5.4.4 What can "best reconciles" is a question of degree. A word can be given a strained construction so as to achieve the meaning that best reconciles the two texts even though its grammatical meaning may be stretched or twisted in the process. It should be pointed out that the courts have in fact time and again attached to statutory provisions meanings which by no stretch of the imagination the words are grammatically capable of bearing. It is said that sometimes the arguments against a literal construction are so compelling that even though the words cannot possibly carry another meaning within linguistic rules, they must be given one26 .

26Bennion (note 4 above), p212; see also p213 for the four broad reasons justifying (or even positively requiring) the strained construction of an enactment :

  1. a repugnance between the words of the enactment and those of some other enactment;

  2. outcome of a literal construction so undesirable that the legislature cannot have intended it;

  3. an error in the text which plainly falsifies the legislative intent;

  4. the passage of time since the enactment was originally drafted.

5.4.5 The process of reconciliation is different depending on the nature of the alleged divergence and the context of the statute. A direct solution is to adopt a meaning that is shared by both versions where one text is ambiguous and the other is plain and unequivocal, or where one text has a broader meaning than the other. However, the common meaning obtained by a purely semantic approach may not be decisive. It must correspond to the legal meaning intended by the legislators27 .

27Tabory (note 1 above), p.200: The International Law Commission in its Commentary on the 1966 draft articles on the law of treaties, discourages any possible departure from the principle of the unity of the treaty and equality of the texts, rejecting even the principle of restrictive interpretation which incorporates the element common to all texts.

5.4.6 Hence, the problematic expression has to be contextualized in order to deduce an objective solution that best gives effect to the legislative intent. In other words, the process of reconciliation does not stop at extracting the highest common rendering in both texts which may possibly be repugnant to the spirit of the statute as a whole. It must still be related back to and tested against the backdrop of the overall objective of the statute in issue.

5.4.7 In fact, sometimes a shared meaning may not be found if the two texts are manifestly inconsistent. Therefore, the bilingual versions of an enactment must be read together and compared with each other by the purposive and contextual approach. A construction so arrived at should accommodate the legislative intent. It can be a construction that may have no grammatical analogue in one or both of the language versions .28

28Beaupr* (note 1 above), pp21-28: citing the cases Food Machinery Corp. v Registrar of Trade Marks [1946] 2 D.L.R. 258 (Ex. Ct.) and Jones and Maheux v Gamache (1968), 7 D.L.R. (3d) 316 (S.C.C.). At p.25, the former case was summarised to the effect that it is not enough to say, if one version is clear while the other is unclear, that the clear version shall be preferred and applied ... the clear version must be in harmony with a reasonable construction of the unclear one. But what is reasonable can only be determined by reference to the whole Act. Both versions, in such a case, must be compared and, where possible, justified; .... If that is impossible, the context naturally rules the inevitable choice of the version to be preferred. At p.28, it was concluded from the latter case that the search for 'context' is still at the root of even a bilingual approach to the interpretation of legislation.

Example 1

The English text of a statutory provision regulates the vehicles "entering or leaving" a delineated area. In the Chinese text, "¶i¥X" (jin chu) is adopted as the rendition of "entering or leaving". Exactly which vehicles are regulated under the enactment may be subject to different interpretations in the Chinese text. For example, it may be a vehicle which -

  1. is either entering or leaving the area; or

  2. having entered the area earlier, is now leaving the area.

Construction (A) is consistent with the meaning of the English text while construction (B) has a more restrictive meaning than the English text. This is a case where the English text is specific and the Chinese text ambiguous. The easiest route is to take construction (A) which is the meaning shared by both versions. However, the context as well as the purpose and object of the enactment in question should also be examined to ensure that construction (A) is indeed consistent with the meaning intended by the legislature.

Example 2

The English text of an enactment forbids the manoeuvring of "sharp" objects in certain circumstances. The word "sharp" is polysemous and can refer to objects which are either thin-edged or fine-pointed. The Chinese text adopts "¦y" (jian) as the corresponding expression of "sharp". "¦y" refers only to objects with fine points. This is a case where the English term bears a broader grammatical meaning than the Chinese. If the narrower meaning of the Chinese text is opted for, an object with thin edges will fall flatly outside the ambit of this prohibitory enactment.

Again, the approach should be to construe the two versions in the light of the context and object of the statute. Even though the more restrictive construction is compatible with the two texts, it is still unacceptable if the outcome will defeat the legislative intent. Therefore a straightforward linguistic resolution is not applicable in all cases. In this example, if the clear legislative intent is to catch both fine-pointed and thin-edged objects in the circumstance, a strained construction may have to be given to the Chinese word "¦y" in order to reconcile with the polysemous English term "sharp".

6. Out-and-out conflict between

the two authentic texts

6.1 A case of bilingual linguistic discrepancy should be distinguished from one of a technical drafting error. As said before, reconciliation is not necessarily the finding of a meaning common to both versions. This is actually impossible in cases of mutually incompatible texts. The court in those circumstances may have to decide on the selection of a version that correctly expresses the underlying legislative purport29.

29Chan Fung Lan v Lai Wai Chuen (MP No. 4210 of 1996).

6.2 For example, the English text of a provision stipulates the duration of "28" days from a reference date to be the time limit for taking certain action. The Chinese text however provides for "25" days. This kind of inconsistency derives apparently from an error in one of the two language versions and may not be removed by the general means of statutory interpretation. It should be handled differently depending on whether the Chinese text was declared authentic subsequent to the commencement of the English text or whether both texts were enacted simultaneously.

6.3 In the case of a statute which was initially enacted in English only with its Chinese text subsequently prepared and declared authentic, the English version was the original official text on the sole basis of which the Chinese counterpart was prepared. In ascertaining its legal meaning, the English text should be taken as more accurately reflecting the legislature's intent when the statute was initially passed. In this case, the meaning borne by the English version will therefore take precedence over the Chinese one30.

30Tabory (note 1 above), pp.172-3: There has been a view during the drafting of the Convention that if a meaning reconciling divergent multilingual texts could not be found, the language to be considered should be that in which the treaty had been drawn up. Another view however held that while reference may be made during interpretation to the preparatory works and to the circumstances under which the treaty was concluded, one should not go so far as to place a premium on the version drafted in a language which might have been used for purely fortuitous reasons.

6.4 If both versions of a piece of legislation, though enacted at the same time, are found to be at odds with each other, still the legislative intent has to be determined and possibly with the aid of any admissible extrinsic materials31 so that the court may ascertain which of the versions gives effect to that intent correctly. It is objectionable in this case to speculate arbitrarily as to what the intent of the legislature might have been, and then to strain the language of the enactment in order to bring particular cases within such assumed intent32 .

31Wesley-Smith (note 8 above), chapter 15 on "Resort to Hansard". See also the "Report on Extrinsic Materials as an Aid to Statutory Interpretation" prepared by the Law Reform Commission of Hong Kong in March 1997.

32Wesley-Smith (note 8 above), p.240, also citing Calvert v Mackenzie [1937] NZLR 966. One of the interpretative criteria is that a person should not be penalized under a doubtful law. Still, it is necessary that all relevant factors be considered and weighed against one another in the light of the context of the statute in order to arrive at a fair construction.

6.5 The pink page titled "Check List and Instructions for the AB Ordinance" in the Loose-leaf Edition of the Laws of Hong Kong will tell whether the Chinese text of the ordinance is enacted simultaneously with the English text or declared authentic under section 4B of Cap. 5. In the case of an Ordinance the Chinese text of which is declared under Cap. 5, an entry "L.N.(C) XX of 199X (Chinese authentic version)" can be found under the heading "Enactment History". If the Chinese text of an ordinance has not been included in the Loose-leaf Edition of Laws and only appears in Legal Supplement No. 7 of the Gazette, it is declared under Cap. 5.

7. Concluding Note

It must be acknowledged that S10B of Cap. 1 provides only broad guidelines for bilingual interpretation and is not a foolproof formula for the resolution of linguistic discrepancies. Statutory interpretation is after all the province of the judiciary. Statutory guidelines can only offer a general framework which is to be filled by judicial rulings according to the particular context of each individual case.

Law Drafting Division

Legal Department

April 1997