Information Paper

Provisional Legislative Council
Panel on Administration of Justice and Legal Services
Meeting on 13 October 1997

Use of Chinese in Courts PURPOSE

This paper updates Members on the implementation of the use of Chinese in courts and provides information on resources available to the Judiciary for this programme.

BACKGROUND

2.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.

3.Article 9 of the Basic Law provides 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."

4.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. The Judiciary does not push parties and lawyers to use the Chinese language. The responsibility for the proper conduct of a case always remains that of a judge. Before deciding whether the use of the Chinese language is appropriate for a particular case, the judge will consult the parties concerned. The guiding consideration in the choice of languages is to ensure the just and expeditious disposal of a particular case.

PRESENT POSITION

Implementation

5.Apart from the Magistracies and the tribunals, the use of Chinese in courts programme was implemented as follows:

Volume of Chinese trials

6.Since 1974, the percentage of Chinese hearings in the magistracies, the Labour Tribunal and the Small Claims Tribunal has been high and account for about 60% of the cases dealt with in the magistracies and about 90% in the Labour Tribunal and the Small Claims Tribunal. The following provides an indication of the volume of Chinese trials at the higher courts since the lifting of the legal restriction on the use of the Chinese language for that court:

RESOURCES ALLOCATED FOR THE PROGRAMME

7. Resources for the use of Chinese in courts are broadly divided into two categories. Direct expenditure is committed solely for the use of Chinese in courts programme; indirect expenditure comprises costs of projects aimed at both improving court services and facilitating the use of Chinese in courts.

8.A summary of the direct expenditure and indirect expenditure incurred by the Judiciary for the use of Chinese in courts programme is at Annex . The following paragraphs provide the details.

Direct Expenditure

Staffing

9.The Court Interpreters (CI) Grade plays a significant supporting role in the use of Chinese in courts programme. Since 1994, to prepare for and implement the Programme described in paragraph 5 above, 22 CI posts have been created to undertake new or increased workload arising from the programme, particularly for translation work. Specifically, the additional staff had been deployed on the following work -

1. translating, upon trial judges' direction, reasons for verdict and sentence delivered by the District Court and magistracies, judgments delivered by the Small Claims Tribunal and Labour Tribunal, and legal documents filed by litigants;

2. translating, upon the trial judges' direction, judgments and summing-ups delivered by the High Court, pleadings in civil cases heard by the High Court and other documents filed by litigants;

3. providing certification service on audio/video tapes to courts of all levels.

10.The CI Grade also provides interpretation service for litigants acting in person. The present practice is that a litigant who does not understand the content of a court document (eg. a writ or reasons for verdict and sentence, etc) may seek assistance from the CI Office which will provide an oral translation of its content.

11.In addition to work related directly to court proceedings, the CI Grade is also seeking to provide legal practitioners with practical and useful reference for Chinese trials. This involves translating the head-notes and sentencing guidelines of a number of landmark cases into the Chinese language under the supervision of bilingual judges. The translation of these cases are now published in the "Hong Kong Lawyers' on a monthly basis.

12. Consideration is being given to having a dedicated team to translate into English selected Chinese judgments which the trial judges consider are of interest to the profession.

13.Without compromising the principle of just and expeditious disposal of cases before the judge, the Judiciary has adopted a pragmatic approach in keeping the translation work to a manageable size. A decision on the use of language is normally made as early as possible in the proceedings to minimise the need for the translation of a large volume of documents at a late stage. For this purpose, a distinction is made between the official record of the proceedings and the transcription of the proceedings to be prepared for appeal purposes. On appeal, the court will decide which part of the official record need to be transcribed and whether it is necessary to translate the transcript, and if so, which part or parts. This saves time and expenses which may be wasted to transcribe and/or translate any part which is not necessary for the appeal.

Training

Training for Judges and Judicial Officers

14.In the past 2 years, the Judiciary has regularly organised language courses for judges and judicial officers-

15.In anticipation of the wider use of the Chinese language in courts, a series of mock trials was conducted in December 1996 to provide training opportunities for judicial officers in practising the use of the Chinese language in courts. The legal profession also took part in these mock trials.

16.To prepare for jury trials conducted in the Chinese language, bilingual judges had regular discussions on Chinese specimen directions and specific directions to the jury. A series of mock trials was held in January this year to assess the adequacy of Chinese summing-ups in jury trials in the High Court. The preparatory work has contributed to the smooth conduct of the Chinese jury trials so far.

17.In the coming years, the Judicial Studies Board will seek to enhance language training programme for judges and judicial officers particularly in respect of Chinese writing. Specially designed courses will be run to help them to conduct trials and to write judgments in the Chinese language more effectively. Consideration is being given to making specially designed Chinese writing workshops part of the induction programme of new recruits.

18.For 1997/98 and 1998/99, we have secured funding support of $1.7 million to compile an English-Chinese glossary of legal terms and phrases commonly used in courts. The glossary will be a useful tool in conducting Chinese trials and ensuring consistency in terminology.

Training for Non-judicial Personnel

19.Language training courses are also being organised regularly for Judiciary staff who play an important supportive role in the implementation of the programme-

20.Special training has been organised for the Court Interpreter grade which provide direct support for judges and judicial officers in the implementation of the programme. For the past 2 years,

1. 27 seminars have been organised on legal translation and law for Court Interpreters on Saturday mornings. These seminars attracted a total of 983 participants.

2. 9 Senior Court Interpreters have been selected to attend specially tailored courses on law and language at Beijing University.

3. 29 court interpreters have attended courses on the translation of judgment.

21.The provision for language and related training for 1997/98 is $800,000. The sum does not reflect the complete picture because most of the expenses incurred for training are absorbed within the global allocation of the Judiciary.

Purchase of Chinese law books and periodicals

22.In 1996/97, a total of $140,000 was spent by the Library of the Judiciary on Chinese reference books. In 1997/98, an estimated expenditure of $200,000 has been earmarked for the purchase of Chinese law books.

Indirect Expenditure

Caseman re-development

23.CASEMAN (Case and Summons Management System) was upgraded in August this year to streamline the processing of summonses in Magistracies and user departments and to enhance the system's Chinese language capability. The estimated expenditure for the project is $35.9 M. The annual recurrent expenditure for the project in 1997/98 when the project is completed will be $1.7 M.

DARTS

24.Installation of digital audio recording and transcription systems (DARTS) in the courts relieves judges and judicial officers from tedious note-taking and ensures the keeping of accurate and timely court records. DARTS also facilitates the use of Chinese in courts as it enables court records of Chinese cases to be kept and transcribed accurately and speedily. So far, DARTS has been installed in a total of 159 courts, as follows:

25.It is planned that by the first half of 1998, the remaining 13 existing courts in the High Court will be provided with DARTS.

26.The estimated expenditure for the project is $113.2 M. The amount spent on the system so far is $94.2 M. The annual recurrent expenditure will be $36.9 M in 1997/98 and $44.4 M in 1998/99.

SIMULTANEOUS INTERPRETATION IN COURTS

27.In response to a suggestion from the Panel, the Judiciary conducted a pilot scheme to assess the feasibility of using simultaneous interpretation (SI) in courts. In anticipation, we secured $130 million in the 1995-96 Estimates for full implementation of simultaneous interpretation in courts if the pilot scheme were successful. After much efforts and full deliberation, it was decided that SI was not an acceptable mode of interpretation in court because possible discrepancy in simultaneous interpretation could not be easily detected before it is too late. The risk of such discrepancy was considered unacceptable as it could lead to possible miscarriage of justice. Plans for installation of SI services and facilities in courts were therefore abandoned. The Panel was kept informed of progress on the pilot scheme on 28 February 1995 and 11 January 1997.

CONCLUSION

28.The use of Chinese in courts programme has a significant impact on the conduct of judicial proceedings. New arrangements or adaptation of existing practices will be necessary from time to time in the light of operational experience. The Judiciary is closely monitoring the use of Chinese in courts and will seek the necessary resources to ensure the smooth operation of the bilingual court system.

Judiciary Administrator's Office
October 1997

Note (*) - 9 and 8 cases were specially approved by the Chief Justice before 27 June 1997 to be conducted in the Chinese language on a trial basis in the Court of First Instance and the Court of Appeal respectively.

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Annex

Resource Allocated for the Use of Chinese in Courts

Direct Expenditure

Indirect Expenditure