Marginalization of Chinese in the Chinese Courtroom: The Need of Chinese Training for Legal Professionals in Hong Kong
| Published date | 01 January 2016 |
| Author | Lee Kim-hung |
| DOI | 10.1177/2322005815607137 |
| Date | 01 January 2016 |
| Subject Matter | Essays |
Marginalization of Chinese in the
Asian Journal of Legal Education
3(1) 72–84
Chinese Courtroom: The Need
© 2016 The West Bengal National
University of Juridical Sciences
of Chinese Training for Legal
SAGE Publications
sagepub.in/home.nav
Professionals in Hong Kong
DOI: 10.1177/2322005815607137
http://ale.sagepub.com
Lee Kim-hung1
Abstract
As a former British colony, Hong Kong has adopted the common law system for more than 150 years
and English was the sole language of the law in Hong Kong before the 1970s. To acknowledge the
language rights of the majority of the city’s population whose mother tongue is Chinese, the Judiciary
Administration of Hong Kong introduced Chinese as a trial language in the magistracies 40 years
ago. Chinese, however, is still struggling to secure its place as a courtroom language. Judges often
resort to English in Chinese courtrooms. There are a number of reasons for the phenomenon: (a) the
Judiciary Administration does not have a rigid policy of ‘using Chinese only in a Chinese courtroom’;
(b) magistrates seem to be more at ease using English than Chinese; (c) magistrates are under the
influence of the counsel who also prefer using English rather than Chinese; and (d) pre-service and
in-service education on using Chinese as a trial language for judges and counsel is inadequate, and
lawyer training universities place little emphasis on Chinese oral skills in their curricula. This article
is a pioneering attempt to investigate the last reason. It illustrates and analyzes the issue with a court
case, interviews with judges, lawyers, a law teacher and law students, as well as an examination of law
school curricula, and suggests means to promote Chinese as a trial language in Hong Kong. Although
the sampling size of the research is small, the findings provide a glimpse into an important field which
has hitherto attracted little attention.
Background and Aim of the Study
As a former British colony, Hong Kong has adopted the common law system and English was the
medium of trial at all levels of court before the 1970s. It was only after several social movements such
as ‘The Chinese Movement’ that led to heavy rioting in the 1960s, in which the people of Hong Kong
led by university students and Chinese teachers took to the streets demanding equal status for Chinese
1 Assistant Professor, School of Translation, Hang Seng Management College, Hong Kong.
Corresponding author:
Lee Kim-hung, D 506, Hang Seng Management College, Shatin, Hong Kong.
E-mail: elvislee@hsmc.edu.hk
Kim-hung 73
and English, that the government became aware of the need to change its language policy.2 According
to official records, the counsel and judges were allowed to use English or Chinese3 in the magistracies in
1974.4 The same year also saw the implementation of the Official Languages Ordinance, which states
that Chinese and English are both official languages in Hong Kong,5 setting the stage for greater use of
Chinese in the legal field. Since then, the percentage of Chinese hearings in the lower courts has been on
the rise.6 The return of the sovereignty of Hong Kong to the People’s Republic of China was a huge
impetus to the process of legal bilingualism. The Basic Law of Hong Kong promulgated in 1990 provides
that the Chinese language is an official language to be used by the government, legislature and judiciary
of the Hong Kong Special Administrative Region (SAR), and thus reconfirms the status of Chinese.7
Hence, the need to speed up the use of Chinese in the legal profession became even greater. The
government started translating local laws which were hitherto all in English into Chinese.8 New laws
were drafted and enacted in bilingual versions.9 An English–Chinese Glossary of Legal Terms was
compiled by the Department of Justice.10 The Chinese language made an emergence in the legal
profession.
Although statistics suggest that 80.9 per cent of criminal trials in the magistracies are conducted in
Chinese in 2011,11 this does not reflect reality. Chinese still struggles to secure its place as a courtroom
language because the judges and counsel often resort to English in the Chinese courtroom.12 Hence, a
standard form of the Chinese language for the courtrooms is yet to develop. The Honourable (Hon)
Madam Justice Chu, an appellate court judge, noted 20 years ago that the development of a new
courtroom language would be a difficult process:
One may think that as long as all the people in court speak and understand Cantonese (i.e., the spoken form
of Chinese), it is a simple matter for the bench, the advocates and the parties to communicate in Cantonese.
2 See S.L. Ng, The Use of Chinese in Courts in Hong Kong, Hong Kong Institute of Legal Translation Limited 6 (3 November
2011), available at http://www.hkilt.com/publication_detail.php?nid=117 (last visited October 2, 2014); Yuhong Zhao, Hong
Kong: The Journey to a Bilingual Legal System, 19 Loy. L.A. Int’l & Comp. L. Rev. 295 (1997), available at http://digitalcommons.
lmu.edu/ilr/vol19/iss2/3 (last visited January 15, 2015).
3 According to the Judiciary Administration of Hong Kong, the official language of Chinese in its spoken form usually refers to
Cantonese but also includes Putonghua. See Research Division of the Legislative Council Secretariat, Information Note—Use of
Chinese in Court Proceedings, note 2 at 2, available at http://www.legco.gov.hk/yr11-12/english/sec/library/1112in17-e.pdf
(last visited July 21, 2013).
4 Provisional Legislative Council, Information Paper—Provisional Legislative Council Panel on Administration of Justice and
Legal Services Meeting (13 October 1997), available at http://www.legco.gov.hk/yr97-98/english/panels/ajls/papers/aj13104a.htm
(last visited July 21, 2013).
5 Hong Kong, Official Language Ordinance, cap. 5 (1974).
6 Provisional Legislative Council, supra note 4.
7 Basic Law of Hong Kong Special Administrative Region, article 9, available at http://www.basiclaw.gov.hk/en/basiclawtext/
chapter_1.html (last visited March 4, 2012).
8 The translation of English laws into Chinese started in 1987. See Tony Yen, Bi-lingual Drafting in Hong Kong, Australian
Government Office of Parliamentary Counsel 66 (2009), available at http://www.opc.gov.au/calc/docs/Loophole_papers/Yen_
Apr2010.pdf (last visited October 2, 2014).
9 Id. at 66.
10 Department of Justice (HKSAR), English–Chinese Glossary of Legal Terms (4th ed. 2004).
11 Department of Justice, Panel on Administration of Justice and Legal Services—Use of Chinese in Court Proceedings, LC
Paper No. CB (2)1353/11-12(01), available at http://legco.gov.hk/yr11-12/english/panels/ajls/papers/aj0326cb2-1353-1-e.pdf
(last visited August 6, 2014).
12 K.H. Lee, Legal Professionals’ Aspirations for and Magistrates’ Practices Of Legal Cantonese in Hong Kong and Implications
for Legal Cantonese Education: A CDA Approach. Unpublished PhD thesis, University of East Anglia (2010).
74
Asian Journal of Legal Education 3(1)
That is not quite true… It is also a matter which judicial officers and advocates alike will have to give serious
thoughts to, if Chinese is to be used at more or at all levels of the court system.13
Behind all the undesirable instances of mixing English with Chinese in the courtrooms, the mistaken
presumption that native speakers of a language are competent users of the language in every possible
context seems to be at work. For all its popularity, Chinese as a spoken language was not taught in
schools as part of the formal curriculum until the 1990s. Examinations on oral Chinese were introduced
in the Hong Kong public examinations in 1994.14 Hence, legal professionals over 40 years of age have
hardly received any formal education for development of their oral Chinese skills at both the primary and
secondary levels of school as well as at law schools where English is the medium of instruction. Those
who studied law in English-speaking countries face a further disadvantage due to their lack of Chinese-
speaking skills. If legal practitioners do not have adequate resources at their disposal to solve their
problems concerning the Chinese language, they would only rely on their linguistic intuition, and such
intuition could be misguided.
Another reason why the issue has not been resolved is that the Judiciary Administration does not have
a rigid policy of ‘using Chinese only in a Chinese courtroom’. The Official Languages Ordinance states
that judges and counsel may use either or both of the official languages in whole or in any part of the
proceedings as they think fit.15 The High Court Civil Procedure (Use of Language) Rules further states
that a judge possesses discretion to decide on the use of either or both of the official languages at any
stage of the proceedings.16 This freedom of choice concerning the language of the trial inevitably
encourages code-mixing. I will argue that only one language should be used at the trials of the same case.
The first reason in support of this argument is that it is generally considered more appropriate to use only
one language in a formal context, which also explains why separate English and Chinese versions are
prepared on such occasions for delivery by government officials.17 Further, this helps us understand why
young people in Hong Kong practise code-mixing on informal occasions with Cantonese as the matrix
language.18 The second reason behind the argument is that we...
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