Hong Kong Magistrates Association
Hong Kong University Law Association, Hong Kong University
Students' Union
Judiciary
Legal Department
Legal Aid Department
Legal Sub-committee of the Chinese Language Study Committee,
Hong Kong Federation of Students
Registrar General's Department
The questionnaire is at Appendix I. A list of replies received is at Appendix II. These replies show a divergence of opinions.
4. Questionnaires were also sent to the governments of Canada, Ceylon, India, the Republic of Ireland, Singapore, South Africa and Switzerland with a view to ascertaining the extent of implementation of bilingualism or multilingualism in the legislative, judicial and quasi-judicial and other legal fields in those countries. Replies have been received from all these countries. We have studied those replies. The questionnaire is at Appendix III.
5. We have also studied the written representations made to the Chinese Language Committee and this Sub-Committee, and also the records of inter- views between that Committee and various individuals and organizations, on matters coming within our Terms of Reference. Whilst there is general agreement that Chinese should be more extensively used in the Magistrates' Courts, opinions are widely divergent on other issues, and some of the proposals put forward show a lack of understanding of, or are clearly contrary to, the basic principles followed in the administration of justice.
6. We particularly want to mention the report of the Legal Sub-committee of the Chinese Language Study Committee to the Thirteenth Representative Council of the Hong Kong Federation of Students. It is obvious that they have done a lot of research and have thought deeply and objectively on the subject. This is much appreciated by us. In arriving at our conclusions, we have derived considerable assistance from this report.
7. We shall now deal with the matters raised in our Terms of Reference in the same order as that given in paragraph 2 above.
SECTION A: 'EQUAL STATUS FOR CHINESE and English IN THE COURTS'
8. The Sub-committee is of the opinion that in the legal field equal status does not necessarily imply equal use in every single instance. Status denotes the rank of one language in relation to another, whereas use concerns com- munication. Thus in India, for example, the language used in the courts and
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the legislature is almost exclusively English. In Ceylon, where Sinhala is the only official language, English remains to a very great extent the language of the courts and the legislature. The extent of the use of English in the courts in Malaysia and in Singapore is very much the same as that in Hong Kong at the present time. On the other hand, Canada and Switzerland have to a very substantial degree succeeded in giving their respective official languages both equal status and equal use in the courts. The use of one or the other, or both, languages in any given circumstances therefore must be dictated by considerations of the results desired and of justice, efficiency, convenience, economy, and other factors.
9. Though we draw a distinction between equal status and equal use, we are far from saying that status and use are completely separable and un- connected. Without attempting to give the expression ‘equal status' a precise definition, we think that equal status for Chinese and English in the Courts in Hong Kong must at least mean:
(1) that whenever Chinese is used it shall carry the same authority as
English, and;
(2) that generally speaking, any person having resort to the Courts must have a right to demand that proceedings therein be conducted in either Chinese or English, or both.
These in our opinion are the basic and minimum advantages which equal status should give. In fact the law has already recognized the equal status of different languages in certain areas; e.g. a contract written in Chinese is just as valid as one written in English, certain notices from a landlord to his tenant must be in both Chinese and English, and the English translation of a Chinese document is not automatically the authoritative version, for in the event of discrepancy the original document prevails.
10. Bearing in mind the principles stated above, and the arguments currently put forward for Chinese and English to be accorded equal status, we proceeded to consider whether equal status may effectively be given to both Chinese and English in the Courts.
11. The law of Hong Kong is the product of many centuries of English history and jurisprudence, and consists mainly of:
(i) The Hong Kong Ordinances and subsidiary legislation found in the fourteen volumes known as Laws of Hong Kong (which is by far the most important source of law as far as the general public is concerned); (ii) Certain United Kingdom Statutes;
(iii) Common Law;
(iv) Decisions of the superior courts of Hong Kong and England,