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Patrick CHAN Siu Oi

184th 

Congregation

 (2011)

Patrick CHAN Siu Oi

Doctor of Laws
honoris causa

Pro-Chancellor, Council Chairman, Vice Chancellor, Honoured Guests, Ladies and Gentlemen,


On behalf of my fellow honorary graduates and myself, I would like to express our heartfelt gratitude and appreciation for having been conferred honorary doctorate degrees by the University. This is a particularly special and memorable occasion for us since this is the centenary of the founding of the University. Through the hard work and excellence of its staff and students and under the able leadership of the Council Chairman and Vice Chancellor, the University has become one of the top education and academic institutes in the world. We are encouraged by the honour bestowed on us and are determined to continue serving the Community and follow the outstanding example of Sir Charles [Kao] in pursuit of excellence within our respective specialties.

No one will dispute that the success of Hong Kong as a leading financial and business centre thrives on the rule of law. But the rule of law prevails only when there is respect for the law. No doubt, for some people, respect for the law is mixed with a certain degree of fear. The defendant in a criminal case may have little respect for the law and yet fear the punishment imposed by the court. When he tells the court: "I am awfully sorry", one has to take it with a grain of salt. This does not necessarily mean that he feels genuinely remorseful for breaking the law; it may simply mean that he is sorry for having to spend the next few years behind bars.

More constructive than such fear in fostering respect for the law is, I believe, trust in the legal system. Unless we can trust that the system delivers generally just and acceptable results in a fair and reliable manner, there is little reason to respect the law and the rule of law would merely be an abstract ideal. A better understanding of what is going on in court and how the justice system works will certainly inspire trust in the system. And people can do this with greater ease if legal proceedings are conducted in their mother tongue which for the majority of Hong Kong residents is Chinese with Cantonese as its spoken form.

Court interpreters have provided an invaluable service for the benefit of non-English speakers. But, however good it may be, interpretation has its limitations as a means of courtroom communication. It is possible, if only remotely so, that the outcome of a case turns on an unnoticed misinterpretation. Rightly or wrongly, a party may feel that she is at a disadvantage against another party who speaks the language of the court and that she stands a better chance of getting justice if her trial is conducted in Chinese without the mediation of interpreters.

Bilingualism in the courts, however desirable, had a long and difficult gestation. Although Chinese was declared an official language in Hong Kong by a ground-breaking ordinance in 1974, trial in Chinese did not become an option at all levels until 1995. The official status of Chinese is re-assured in art.9 of the Basic Law. New laws are now enacted in both languages. Existing statute laws enacted in English have all been translated into Chinese. English-Chinese glossaries of legal terms have been published and gradually built up. These measures have facilitated the option of conducting legal proceedings in Chinese. Since 1997 the number of cases which are conducted in Chinese has increased quite considerably at all levels of court: from 85% in the Magistrates' courts to about 30% in Court of Appeal. This additional workload has increased the pressure on bilingual judges and created new challenges for them. They need to maintain a high standard of Chinese writing skills. For this purpose, each of them is required to do a one month residential course in Tsinghua University. In addition, every year, with the help of Professor Johannes Chan, Dean of the Faculty of Law, the University runs a four month top up course in writing skills for these judges.

There are concepts in the common law which have no ready-made Chinese equivalent. The translations of some legal terms are somewhat confusing or not easy to understand. Thus in a case of indecent assault, the defendant was willing to admit 非禮, but not 猥褻侵犯,which is the official Chinese translation and a more degrading term. Like many people, he was not aware of this translation and did not want to be regarded as 猥褻. It takes time for judges, lawyers and the public to get used to these legal terms.

Some standard terms are specified for use in court. Take the modes of addressing judges as an example. In English, judges are addressed according to the level of court, such as "Your Lordship", "Your Ladyship", "Your Honour" or "Your Worship". But in Chinese trials, lay persons often address judges as "老爺" or "奶奶" (old grandpa or granny). These terms are obviously not suitable for use in court. Even "法官大人" a term used in Imperial China is no longer appropriate in modern society. It also reminds us of the term of respect and endearment "老婆大人" which many Chinese gentlemen use in addressing their wives. Judges at all levels are now addressed uniformly in Chinese as "法官閣下"-Your Excellency. It is less confusing, sexually neutral and preserves the dignity of the court.

The way and manner in which the language is used also poses a challenge. The courtroom is a solemn place for the administration of justice and one would expect those present in court would exercise some degree of care in what they say. But people expressing themselves in Chinese, especially Cantonese, tend to import into the courtroom modes of speech which are loose, imprecise, disjointed or even incoherent. Even lawyers and judges may not be entirely free from this tendency. Thus unnecessary or excessive use of slangs or colloquialisms and abusive or even unintended foul languages may be encountered nowadays. This makes it harder for the court to assert its authority and for the public to respect the law. From time to time, judges have to remind people appearing before them to behave themselves and to mind their language. But it is not always easy to ensure that every person in court will comply and stricter measures have to be taken. Ultimately it is the duty of lawyers and judges who work in the courtroom setting to set a good example for other court users.

You may be interested to know that the first case before the Court of Final Appeal after it was set up in 1997 involved a lady who did not instruct a lawyer and who was described legally as a frivolous and vexatious litigant. She spoke in typical Hong Kong style: partly Chinese, partly English and partly "Chinglish". It took her some time to address the court. The judges were able to dispose of her case patiently, conscientiously, resolutely and expeditiously. I should add that having failed to make the judges crazy, she subsequently ended up in a psychiatric centre.

The feasibility and desirability of conducting legal proceedings in Chinese should not blind us to the fact that legal principles are largely contained in judgments written in English and that the common law tradition has its roots in English speaking jurisdictions. The common law is not set in stone. It is constantly developing. Judgments from other common law jurisdictions are also of jurisprudential value in shaping the common law in Hong Kong. While it is necessary to put in place a bilingual legal system, English is still indispensable as a legal language in Hong Kong. This is vital if Hong Kong is to maintain its status as a leading financial and business centre.

Since 1995, a silent revolution has started by design and demand. Both Chinese and English have contributed to the operation and success of our legal system. There are inherent differences between the two languages. A pragmatic approach has to be adopted. Language as a tool of expression is only a means and not an end in itself. The object is the fair administration of justice. A culture needs to emerge before Chinese becomes an adequate means of communication for the administration of justice. But this must be given time to evolve and perfect itself. Much commendable efforts have been made to strengthen the practice of bilingualism in the courts. Much more remains to be done by all involved in the administration of justice. It is only with a system which has the trust of the Community that the rule of law can prevail.

Presented by The Hon. Mr. Justice Patrick Chan.

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