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Taken as Read: Linguistic (in)equality in Hong Kong's Jurisprudence

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 THE CHINESE UNIVERSITY OF HONG KONG
FACULTY OF LAW
Research Paper No. 2022-41

FORTHCOMING (2023) MICHIGAN STATE UNIVERSITY

INTERNATIONAL LAW REVIEW

Taken as Read:
Linguistic (in)equality
in Hong Kong’s Jurisprudence

Stuart Hargreaves*

*
BA, JD, BCL, SJD. Associate Professor, Faculty of Law, the Chinese University of Hong Kong. I am immensely
grateful for the comments on earlier drafts provided by Janny Leung, Kwai Ng, Kevin Cheng, and Mike Madden. I
am also grateful for the research assistance of Coco Li, Howard Lee, and Queenie Tsang. A version of this paper
was accepted for presentation at the 2022 Law & Society Association conference.
 ABSTRACT

Colonial Hong Kong was characterized by diglossia: the use of Cantonese for the ‘low’
functions of daily life and the use of English for the ‘high’ functions of law and
government. This paper shows that significant linguistic inequality persists at the top end
of the legal hierarchy a full quarter-century after the transition to Chinese sovereignty. By
reviewing the output of Court of Final Appeal since 1997, this paper demonstrates that
not only has the Court failed to develop a fully bilingual jurisprudence, the availability of
Chinese-language translations of its decisions is in fact declining over time. This means
that roughly two-thirds to three-quarters of the population is unable to read for
themselves the decisions of the Region’s apex court despite being fluent in an official
language. The paper argues that beyond instrumental arguments (such as fairness to
monolingual self-represented litigants), linguistic equality in the Court’s output is
justified in normative terms. It is an assertion of the dignity of monolingual Chinese
speakers within the community; a statement that they deserve equal access to the output
of the Court given the significant role it plays. The paper concludes by arguing for an
amendment to the relevant law in order to guarantee linguistic equality in the Court’s
output and provision of the necessary resources to accomplish it. The problem is solvable
with political will and a relatively small amount of money.

TABLE OF CONTENTS

INTRODUCTION
1. HISTORIC DIGLOSSIA AND THE LEGAL SYSTEM
2. BILINGUALISM AT THE COURT OF FINAL APPEAL
3. (WHY) DOES IT MATTER?
4. IS THERE A ‘RIGHT’ TO A BILINGUAL CFA CORPUS?
5. ALTERNATIVES
a. MULTILINGUAL CASE SUMMARIES
b. AI-ASSISTED TRANSLATION
c. DIGESTS & CODIFICATION
6. RECOMMENDATIONS
CONCLUSION

INTRODUCTION

Sir T.L. Yang, Hong Kong’s first Chinese Chief Justice, once remarked that to the average Hong

Konger “the law is still an alien thing imported from a country they know hardly anything about,
written in a language they do not understand…”1 But a new linguistic future beckoned after the

reestablishment of Chinese sovereignty over the territory, as the Basic Law – the quasi-

constitutional document that would provide the governing framework for Hong Kong as a

Special Administrative Region of China – provided that both Chinese and English would be

official languages.2 This paper shows that despite a stated commitment to legal bilingualism in

the post-1997 era, there remains significant inequality between English and Chinese in the

published corpus of the Court of Final (CFA), which replaced the Privy Council as the apex

court of the region in 1997.3 A quarter-century after its establishment the CFA does not produce

anything close to a fully bilingual jurisprudence.

Part 1 begins by describing the evolution of the legal system from one that was entirely

dominated by English during the colonial period to one that now provides a much greater role for

Chinese. Part 2 provides a statistical analysis of the CFA’s jurisprudence, showing that not only

has there been a failure to develop a fully bilingual corpus, rates of translated judgments from

English into Chinese over the past decade are in fact on the decline. Part 3 argues this is a

problem, though not primarily because of the instrumental advantages that more translated

judgments might offer Chinese-speaking litigants or counsel. Instead, critical focus should be

placed on the normative message delivered by a legal system that continues (at least at the top

end of the hierarchy) to be meaningfully biased towards English. In Part 4, I argue that

1
Ti-Liang Yang, “Address of the Chief Justice at the Opening of Legal Year”, (13 Jan 1992), cited in Chi-Kuen Lau
HONG KONG’S COLONIAL LEGACY 130 (1997).
2
The Basic Law, Art 9: “in addition to Chinese, English may also be used as an official language by the executive,
authorities, legislature, and judiciary.”2
3
The Basic Law, Art. 82; Hong Kong Court of Final Appeal Ordinance Cap. 484. Though this is a targeted analysis,
there is no evidence that the lower courts of Hong Kong have higher rates of translated judgments. Ng, for example,
concludes that across the court system published judgments in English outnumber those in Chinese by a ratio of 8.15
to 1 (Kwai Hang Ng, Is There a Chinese Common Law? An Empirical Study of the Bilingual Common-Law System
of Hong Kong, 8 JOURNAL OF EMPIRICAL LEGAL STUDIES 118, 138 (2011).
notwithstanding the clear moral claim that can be made for linguistic equality in published

judgments, the deferential posture of the courts to the Government when dealing with the

allocation of scarce public resources means that there is unlikely to be a legal remedy available

for monolingual Chinese speakers who wish to read the output of the CFA in their own language.

In Part 5, I consider possible alternatives to full translation, such as the use of bilingual

summaries or leveraging of artificial intelligence to quicken the process. I conclude that while

these advances may be welcome, they are an insufficient substitute for a fully bilingual CFA

corpus. This leads to the recommendation in Part 6 that the Official Languages Ordinance be

amended to guarantee linguistic equality in the output of the CFA, and that concomitant

recommendation that the Judiciary Administration be provided with the necessary resources for

complete translation of the CFA’s jurisprudence. While English will remain a key part of Hong

Kong’s legal system so long as it maintains its common law heritage and functions as a centre of

international finance, there is no reason that the vast majority of the CFA’s jurisprudence should

be made available only in the language of Hong Kong’s former colonial ruler. Moreover, as the

problem of insufficient translation appears to primarily be resource-based, solving it is largely a

matter of political will: increasing spending in order to more fully decolonize the legal system is

unlikely to be opposed by the LegCo in the current political environment.

PART 1: HISTORIC DIGLOSSIA AND THE LEGAL SYSTEM

The dominant language in Hong Kong is (and has historically been) Cantonese, a form of

Chinese spoken primarily in southeastern China – but a strong bias towards English in the legal

system can be traced to the very beginnings of Hong Kong as a “Crown Colony”. Shortly after
the establishment of British control, the Queen’s plenipotentiary decreed in 1841 that a dual legal

system would exist: one for the Chinese inhabitants of the island based upon existing customs

and practices, and one for the rest based upon English law. After only three years however this

system came to an end as the Supreme Court Ordinance entrenched the English common law and

principles of equity as the basis of the legal system for all inhabitants of Hong Kong, regardless

of background (or language ability).4 From this point on and for the majority of the colonial

period, the administration of the legal system was carried out only in the language of the

colonizers; a system Cheung calls “linguistic apartheid.”5 This was a classic diglossic model: one

language for the ‘low’ functions of daily communication (Cantonese), another for the ‘high’

functions of law and government (English). 6

In 1967, Hong Kong was wracked by deadly riots connected to both local dissatisfaction with

colonial rule and cross-border agitation resulting from the Cultural Revolution sweeping

Mainland China.7 A Commission into the unrest concluded that “one cause of the social

grievance was the fact that the language and the work of the law were not properly accessible to

the local population.”8 Consequently, in addition to increased social spending and the avocation

of the ‘rule of law’ as a guiding principle of governance, responses to the crisis included the

recognition of Chinese as an official language (thanks in part to a drive initiated by university

4
“Appendix IV: A Selection of Constitutional Documents, Conventions, and Treaties”, Historical Laws of Hong
Kong Online: https://oelawhk.lib.hku.hk/items/show/3631.
5
Anne S.Y. Cheung, Towards a Bilingual Legal System - the Development of Chinese Legal Language, 19 LOY.
L.A. INT'L & COMP. L.J. 315, 315 (1997).
6
David D. Laitin, Language Games, 20 COMPARATIVE POLITICS 289, 293 (1988).
7
See generally Gary Ka-wai Cheung, HONG KONG’S WATERSHED: THE 1967 RIOTS (2009).
8
Jacky Tam, Tackling Bilingual Discrepancies in Statutory Interpretation - Rethinking the Judicial Approach in
Hong Kong, 9 INTERNATIONAL JOURNAL OF LANGUAGE & LAW 67, 81 (2020), citing Anne Cheung, Language in
LAW OF THE HONG KONG CONSTITUTION 4.009 (Johannes Chan & CL Lim, eds. 2015).
students).9 A series of reports into the possible use of Chinese in ‘official’ contexts10 eventually

led to the adoption of the Official Languages Ordinance (OLO), which declared in 1974 English

and Chinese to be the

official languages of Hong Kong for the purposes of communication between the
Government or any public officer and members of the public… possessing equal status
[and] equality of use for such purposes.11

While the introduction of the OLO was significant, it was also limited in its ambition –

particularly in the context of the judicial system. A particularly significant initial carve-out to the

promise of ‘equal status’ for English and Chinese related to the law. The OLO initially held that

Ordinances were to be enacted only in English.12 No plans were made to translate any part of the

common law upon which Hong Kong’s legal system relied.13 Limitations existed on the

procedural front too. While witnesses and parties to a proceeding in any court at any level were

guaranteed the right to speak in either language,14 only judicial proceedings in certain lower

courts and tribunals could be conducted in Chinese.15 In short, “the legislative guarantee of equal

status did not prevent the Chinese language’s subordination” to English.16

9
Albert H.Y. Chen, 1997: The Language of the Law in Hong Kong, 15 HONG KONG LAW JOURNAL 19, 21 (1985).
10
Id.
11
Official Languages Ordinance, Cap. 5, s. 3 (as it stood in 1974).
12
Id., s. 4.
13
Chen, HONG KONG LAW JOURNAL, 23-24 (1985).
14
OLO, s. 5(2) and (3).
15
Id., s. 5(1) and Schedule 1. Under Schedule 1, proceedings could initially be conducted in Chinese only in
Magistrates’ courts, coroner inquiries, juvenile courts, labour tribunals, and tenancy tribunals. In 1975 small claims
tribunals was added to the Schedule (Ord No. 79/75, s. 40), followed by immigration tribunals in 1980 (LN
306/1980). Tenancy tribunals were removed from the Schedule in 1989 (LN 307/1989).
16
Yuhong Zhao, Hong Kong: The Journey to a Bilingual Legal System, 19 LOY. L.A. INT'L & COMP. L.J. 293, 296
(1997).
In 1984 the UK and China signed the Sino-British Joint Declaration regarding the transition of

sovereignty over Hong Kong and the basic policies of China toward it after 1997.17 On the

matter of language, the Joint Declaration held that “in addition to Chinese, English may also be

used in organs of government and in the courts”18; a slight variation on this phrase was later

incorporated into the Basic Law.19 Lee argues that though the formulation of these phrases

appeared to identify Chinese as the ‘default’ language of government and the legal system,20 this

was not reflective of the reality of public administration in the 1980s.21 Instead, it simply

followed “the language ideological imperatives” of the time related to the transition of sovereign

control and the end of the colonial period.22 The language provisions of the Joint Declaration and

the Basic Law did not, then, reflect any sort of “heightened understanding of [the]

communicative needs” of the majority of the population.23

The year after the Joint Declaration was released, Chen mapped out a vision of how genuine

legal bilingualism could be achieved in Hong Kong.24 It would, he argued, require widespread

availability of Chinese language legal materials including the development of a Chinese legal

vocabulary for common law concepts; the simultaneous publication of all future legislation in

17
Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the
Government of the People's Republic of China on the Question of Hong Kong, 19 Dec. 1984:
https://treaties.un.org/doc/Publication/UNTS/Volume%201399/v1399.pdf.
18
Id., s. 1
19
The Basic Law, Art. 9.
20
The claim that Art. 9 of the Basic Law set out Chinese as the “primary” language was considered in Re Cheng Kai
Nam Gary, [2002] 2 HKLRD 39. The court concluded that even if it were to accept a purposive interpretation of Art.
9 in such a fashion, it did not demand any greater right for Chinese in the courtroom than the procedural guarantees
detailed in the OLO.
21
Tong King Lee, Bilingualism and law in Hong Kong: Translatophobia and Translatophilia, INTERNATIONAL
JOURNAL OF BILINGUAL EDUCATION AND BILINGUALISM, 2 (2020).
22
Id.
23
Richard Powell, Unbalanced bilingualism, diglossia and class division in postcolonial law, 1 INTERNATIONAL
JOURNAL OF LEGAL DISCOURSE 295, 299 (2016).
24
Chen, HONG KONG LAW JOURNAL, 46 (1985).
both official languages; the translation of all existing legislation into Chinese; the preparation of

Chinese language legal textbooks for use in education; the simultaneous publication of court

judgments in both Chinese and English; and the encouragement of legal academics to write in

Chinese.25 Many of these ambitious ideas posed genuine challenges. In particular, the technical

and ideological difficulties of legal translation as between English and Chinese were obvious.26

But even so, it was reasonable to assume that in the SAR-era the gap between the reality of an

essentially “English” legal system as it stood at the end of the colonial period and the goal of a

fully bilingual one as at least implied by the language in the Joint Declaration and the Basic Law

would significantly narrow.

Important steps towards a bilingual legal system have indeed been made. In 1987, the colonial

government amended the OLO and the Interpretation and General Clauses Ordinance27 (IGCO)

25
Id. at, 42-43..
26
On the challenges of legal translation generally, see for example Joanna Drugan & Krzystof Kredens, Translation
in superdiverse legal contexts, in THE ROUTLEDGE HANDBOOK OF LANGUAGE AND SUPERDIVERSITY (Angela Creese
& Adrian Blackledge eds., 2018); Roderick A. Macdonald, Legal Bilingualism, 42 MCGILL L.J. 119, (1997);
Myrteza Murici, Issues in Translating Legal Texts, 4 INTERNATIONAL JOURNAL OF ENGLISH LANGUAGE AND
TRANSLATION STUDIES 69, (2016); Karen McAuliffe, Hybrid Texts and Uniform Law? The Multilingual Case Law
of the Court of Justice of the European Union, 24 INT. J. SEMIOT. L. 97, (2011); Aleksandra Matulewska, Legal and
LSP Linguistics and Translation: Asian Languages’ Perspectives, 32 INT. J. SEMIOT. L. 1 (2019); Helder De
Schutter, Translational Justice: Between Equality and Privation, in TRANSLATION AND PUBLIC POLICY:
INTERDISCIPLINARY PERSPECTIVES AND CASE STUDIES (Gabriel González Núñez & Reine Meylaerts eds., 2017). On
specific challenges associated with Chinese-English legal translation see for example KWAI HANG NG, THE
COMMON LAW IN TWO VOICES: LANGUAGE, LAW, AND THE POST-COLONIAL PREDICAMENT IN HONG KONG
(Stanford University Press. 2009); Chen, HONG KONG LAW JOURNAL, (1985); Cheung, LOY. L.A. INT'L & COMP.
L.J., (1997); Ling Wang & King Kui Sin, Legal Translation and Cultural Transfer: A Framework for Translating
the Common Law into Chinese in Hong Kong, 26 INT. J. SEMIOT. L. 883, (2013); Susan Kwan, The Dilemma of
Conducting Civil Litigation in Chinese - Conversant Either in Chinese or the Law but Not in Both, 41 HONG KONG
LAW JOURNAL 7, (2011); Lee, INTERNATIONAL JOURNAL OF BILINGUAL EDUCATION AND BILINGUALISM, (2020);
Emily Wai-Yee Poon, The pitfalls of linguistic equvalence: the challenge for legal translation, 14 TARGET 75,
(2002); Emily Wai-Yee Poon, The Cultural Transfer in Legal Translation, 18 INT. J. SEMIOT. L. 307, (2005); Wai-
Yee Emily Poon, The Translation of Judgments, 51 META 551, (2006); K.H Pun, et al., Processing Legal
Documents in the Chinese-speaking world: the Experience of HKLII, 6 UTS L. REV. 134, (2004); Zhao, LOY. L.A.
INT'L & COMP. L.J., (1997); Oi Yee Kwong & Benjamin K. Tsou, A Synchronous Corpus-Based Study on the Usage
and Perception of Judgement Terms in the Pan-Chinese Context, 10 COMPUTATIONAL LINGUISTICS AND CHINESE
LANGUAGE PROCESSING 519, (2005).
27
Interpretation and General Clauses Ordinance, Cap. 1.
to with an eye to further increasing the use of Chinese in the legal system.28 Thanks to the OLO

amendments, a Bilingual Laws Advisory Committee (BLAC) was created to advise the Governor

on all relevant matters;29 all Ordinances (though not subsidiary legislation) were required to be

enacted and published in both official languages;30 and translations of pre-existing Ordinances

enacted only in English would be deemed authentic by the GiC upon advice from the BLAC.31

Though there was initially some debate on what the precise legal effect of a translated Ordinance

ought to be,32 the amended IGCO held that both versions of an Ordinance were deemed to be

“equally authentic”, and where comparison of said authentic texts revealed a discrepancy, the

meaning which “best reconciles the texts, having regard to the object and purposes of the

Ordinance, shall be adopted.”33 The result was that by 1989 all new Ordinances were enacted in

both official languages, and by the date of handover all previous Ordinances had been translated

into Chinese and ‘authenticated’.34 While this was may indeed have been a “herculean

achievement”35, this “bilingual statutory regime [was] still a long way from the utopia of a

bilingual legal system.”36

28
Official Languages (Amendment), Ord. No. 17/87; Interpretation and General Clauses (Amendment), Ord. No.
18/87, s. 4.
29
Official Languages Ordinance, Cap. 5, s. 4C (as it stood in 1987).
30
Id., s. 4A. (Exception to the translation requirement could be made for bills that the GiC concluded were ‘urgent’
and for which translation would cause an unreasonable delay; s. 4).
31
Id., s. 4B.
32
See eg Chi-wing Yuen, The Chinese Language Legislation Scheme and the Problem of Judicial Gloss, 17 HONG
KONG LAW JOURNAL 89, (1987).
33
Interpretation and General Clauses Ordinance, s. 10B. For application of this standard see generally “A Paper
Discussing Cases Where the Two Language Texts of an Enactment are Alleged to be Different”, Department of
Justice (Law Drafting Division), May 1998: https://www.elegislation.gov.hk/interpretbileg. See also R v Tam Yuk
Ha (MA No. 933 of 1996) and HKSAR v Tam Yuk Ha (MA No. 1385 of 1996).
34
Lee, INTERNATIONAL JOURNAL OF BILINGUAL EDUCATION AND BILINGUALISM, 2 (2020) (citing A. Cheung, LOY.
L.A. INT'L & COMP. L.J., 318-319 (1997).
35
https://www.doj.gov.hk/en/community_engagement/speeches/pdf/sg20041110e.pdf.
36
Yuen, HONG KONG LAW JOURNAL, 99 (1987).
English was the sole procedural language of the court for nearly the entire colonial period.37 It

was not until 1995 that the Government changed the law to allow Chinese to be used as a

‘courtroom’ language in the higher courts.38 That same year the High Court heard its first civil

case in Cantonese,39 while the Court of First Instance heard its first Chinese-language

prosecution in 1997.40 The use of Chinese as a procedural language was made easier thanks to

the installation of the DARTS recording and transcription system in 1996, a “milestone” that

allowed for bilingual court reporting.41 But as Powell suggests, permitting a language to be used

for procedural matters will change little in practice “unless it is equipped for legal discourse.”42

Recognizing this, the Committee on the Bilingual Legal System compiled a series of resources

translating English legal concepts into Chinese, beginning with a English to Chinese legal

glossary in 1998 followed by a Chinese to English version in 1999.43 In 2021 both were

subsumed into an online Glossary created by the Department of Justice allowing users to easily

translate legal terms in both directions.44 There is now widespread provision for bilingual court

documents, including bilingual charge sheets provided to all defendants,45 and when cases are

heard in Chinese, all court documents including admitted facts are translated.46

37
Poon, META, 552 (2006).
38
OLO, s. 5.
39
“Use of Chinese in Court Proceedings”, Legislative Council Secretariat, IN17/11-12, at 5.
40
Kingsley Bolton, Language policy and planning in Hong Kong: Colonial and post-colonial perspectives, 2
APPLIED LINGUISTICS REVIEW 51, 4 (2011).
41
Eva Ng, Teaching and Research on Legal Intepreting: A Hong Kong Perspective, 7 MONOGRAFÍAS DE
TRADUCCIÓN E INTERPRETACIÓN 243, 247 (2015). See also description of Digital Audio Recording and
Transcription System (DARTS) at: https://www.judiciary.hk/en/court_services_facilities/video.html.
42
Powell, INTERNATIONAL JOURNAL OF LEGAL DISCOURSE, 301 (2016).
43
Cheng Le & Lianzhen He, Revisiting judgment translation in Hong Kong, 209 SEMIOTICA 57, 64 (2016).
44
See https://www.doj.gov.hk/en/publications/pub20030007.html and https://www.glossary.doj.gov.hk
45
Poon, META, 552 (2006); Kwai Hang Ng, Is There a Chinese Common Law? An Empirical Study of the Bilingual
Common-Law System of Hong Kong, 8 JOURNAL OF EMPIRICAL LEGAL STUDIES 118, 121 (2011). See also
https://legalref.judiciary.hk/lrs/common/pd/Practice_Directions.jsp.
46
Le & He, SEMIOTICA, 64 (2016).
The Government has introduced training for judges aimed at increasing their capability to run a

court in either language.47 While a judge is still free to choose in which language to conduct a

proceeding, they should “take into consideration factors such as the nature of the case and the

preference or interests of the parties involved.”48 The use of Chinese in the courtroom as a

procedural language has been further aided by the retirement of monolingual colonial-era judges

and their replacement with bilingual members drawn from the local population.49 Both the

Judiciary and the Department of Justice are committed to the concept of legal bilingualism, with

the latter calling it a “fundamental feature” of Hong Kong’s legal system.50 All these factors have

helped push the use of Chinese in the courts to a substantially higher level than that which

existed during the colonial period.51

PART 2: BILINGUALISM AT THE COURT OF FINAL APPEAL

Despite the marked increase in the use of Chinese throughout the legal system since 1997, what

Tam refers to as “asymmetrical bilingualism” remains.52 It is in the lower levels of the court

hierarchy that Chinese has had the most complete adoption as a procedural language. Cheng

observes it is largely the magistrate courts that hear matters entirely in Chinese.53 Ng identifies

47
Bolton, APPLIED LINGUISTICS REVIEW, 7 (2011).
48
Poon, META, 552 (2006). A judge’s decision on this matter, appears final. In Re Cheng Kai Nam Gary [2002] 2
HKLRD 39, the applicant argued that refusal of a (monolingual, English speaking) District Court judge to conduct
proceedings in Chinese was an infringement of his right to a fair trial since the judge would have to rely on an
interpreter to understand testimony of both the defendant and witnesses. His application for leave was denied.
49
Michael Thomas, The Development of a Bilingual Legal System in Hong Kong, 18 HONG KONG L. J. 15, 20
(1988).
50
https://www.judiciary.hk/en/publications/judfactsheet.html;
https://www.doj.gov.hk/en/about/orgchart_ldd_drafting_chi_eng.html.
51
“Use of Chinese in Court Proceedings”, Legislative Council Secretariat, IN17/11-12, at 5.
52
Tam, INTERNATIONAL JOURNAL OF LANGUAGE & LAW, 68 (2020).
53
Kevin Kwok-yin Cheng, Legitimacy in a Postcolonial Legal System: Public Perception of Procedural Justice and
Moral Alignment Toward the Courts in Hong Kong, 43 LAW & SOCIAL INQUIRY 212, 218 (2018). Separately,
Yeung and Leung point out that lifting language barriers is likely linked to an increase in pro se (unrepresented)
litigants in Hong Kong, and has led to other, more deeply rooted communication problems in the courtroom (see eg
the emergence of what he terms “mixed-language trials” in the CFI and District Court, in which

testifying parties interact with the judge and other personnel in Cantonese regarding matters of

fact, while the judge and the lawyers interact with each other in English in order to debate points

of law.54 He found that at the Court of Appeal proceedings were 8.5 times more likely to be

conducted in English than in Chinese,55 concluding “Cantonese is used with decreasing

frequency as one moves up the court hierarchy, and it is totally absent in the CFA.”56 Since in

practice judgments are written in the language in which the proceedings were conducted, this

means that (absent translation) the percentage of judgments initially available in Chinese drops

the further one goes up the court hierarchy. As I will show Part 3, in combination with

insufficient resources for translation this results in dearth of Chinese-language judgments coming

out of the CFA.

In 1998, the Committee on the Bilingual Legal System established a sub-committee to

investigate the feasibility of translating significant case precedents from English to Chinese.57

The pilot programme selected 33 cases to translate (drawn from both Hong Kong and England),

and after a one-year period had translated 25 of them.58 Based on this experience, the sub-

WL Matthew Yeung & HC Janny Leung, Removing Linguistic Barriers to Justice: A Study of Official Reference
Texts for Unrepresented Litigants in Hong Kong, 28 INT. J. SEMIOT. L. 135, 151 (2015); WL Matthew Yeung & HC
Janny Leung, “You have to teach the judge what to do”: Semiotic gaps between unrepresented litigants and the
common law, 216 SEMIOTICA 363, 365 (2016); WL Matthew Yeung & HC Janny Leung, Litigating without
speaking legalese: the case of unrepresented litigants in Hong Kong, 26 THE INTERNATIONAL JOURNAL OF SPEECH,
LANGUAGE AND THE LAW 231, 251 (2019). These challenges are experienced by pro se litigants outside Hong Kong
too (see eg Jona Goldschmidt, The Pro Se Litigant’s Struggle for Access to Justice: Meeting the Challenge of Bench
and Bar Resistance, 40 FAM. CT. REV. 36, 37 (2002)).
54
NG, The Common Law in Two Voices: Language, Law, and the Post-Colonial Predicament in Hong Kong 253.
2009.
55
Ng, JOURNAL OF EMPIRICAL LEGAL STUDIES, 138 (2011).
56
NG, The Common Law in Two Voices: Language, Law, and the Post-Colonial Predicament in Hong Kong 253.
2009.
57
Poon, META, 553 (2006).
58
Report of the Subcommittee on the Translation of Case Precedents”, Committee on the Bilingual Legal System,
Department of Justice, DJ-A25 (May 1999), 2, Annex B.
committee made five recommendations: 1) that due to the complexity of translating judgments

and the limited resources available, efforts should be devoted primarily to translating local

judgments, with only “important” past precedents from other jurisdictions being translated; 2)

that consideration be given to less resource intensive forms of translation if the primary purpose

of the judgments was for public consumption rather than use in the courtroom (and that further

study should be given to the question of purpose); 3) that future translation projects would

require a dedicated translation team that included legal professionals; 4) that guidelines and

protocols for legal translation would need to be developed to ensure consistence use of

terminology; 5) that lay translators should still be provided with basic legal training to help them

understand key concepts.59

It is the resource issue that appears to have ended any serious consideration of translating all

English-language decisions into Chinese as practical matter – though the Judiciary

Administration has adopted inconsistent messaging about the matter. In 2002, it responded to a

question from a LegCo member on progress towards a genuinely bilingual legal system in part

by saying that their policy since 1999 had been to “translate all judgments of the Court of Final

Appeal” (emphasis mine) and “selected” lower court judgments.60 The following year it backed

away from this position: in a budgetary submission to the LegCo, the Judiciary Administration

stated that that while “many of the judgments of the CFA” [emphasis mine] as well as “lower

court English-language judgments with wide media or public interest” might need to be

translated into Chinese their entirety, translating all English judgments into Chinese was

59
“Report of the Subcommittee on the Translation of Case Precedents”, Committee on the Bilingual Legal System,
Department of Justice, DJ-A25 (May 1999), 5-7.
60
“Controlling Officer’s Reply to Written/Supplementary Question”, Reply JA003 to Question 0035, 22 Mar 2002,
https://www.judiciary.hk/en/other_information/fc_questions/fc_quest0203.html.
“unnecessary, unrealistic, and not cost effective.”61 Instead, translation and collation of excerpts

would be sufficient for most judgments.62 In 2014, the Judiciary Administration repeated that “in

view of the large number of published judgments and the fact that resources are not unlimited…

it is neither necessary nor cost-effective to translate all judgements.”63 But while there appears to

be no more recent publicly available position paper or other statement on the subject, in response

to an access to information request by the author, a representative of the Judiciary

Administration reverted to the earlier position of 2002:

The prevailing policy and practice is that all CFA judgments (past and new) delivered
and Chinese judgments of jurisprudential value are to be translated. English or Chinese
judgments, particularly those of wide public and media interest, may also be translated
for various operational reasons.64 [emphasis mine]

Whatever the current policy actually is, it is obviously not the case that complete translation of

the CFA’s output represents the prevailing practice. The following chart shows the number of

final civil and criminal appeals heard by the CFA on an annual basis between 1997 and 2021,

along with how many of them were translated into Chinese.65 In short, it shows that since its

inception that not only has CFA has issued all its decisions resolving final appeals first in

61
“Translation of Judgments”, paper submitted by the Judiciary Administration to the Legislative Council Panel on
Administration of Justice and Legal Services, Apr. 2003: LC Paper No. CB (2)1856/02-03(01).
62
Id.
63
“Controlling Officer’s Reply”, Examination of Estimates of Expenditure 2014-15, Reply JA018 to Question No.
6017: https://www.judiciary.hk/doc/en/other_information/fc_questions/ja_e_1415.pdf.
64
Private correspondence, 7 July 2022, email on file with the author.
65
Analysis was based on the public archive at https://legalref.judiciary.hk/lrs/common/ju/judgment.jsp. That archive
allocates a case to a specific year based upon when it was registered with the Court rather than the year it was
released or reported; the above chart follows that model. The analysis only calculates translations of “Final Appeals”
rather than “Miscellaneous Proceedings”, though on rare occasions certain proceedings denying leave to appeal may
be translated (eg FAMV 7-10/2017). For simplicity, the analysis treats a case file from the archive as single
“judgment” even if it may contain primary and secondary decisions (eg FACV3/1997), and treats multiple cases as a
single judgment if the relevant appeals were heard and answered together by the CFA (eg FACV9-13/2012).
English, it has translated only a fraction of them into Chinese – and that fraction is declining over

time.66

Year Final Translated Final Translated Total Total

Appeals Appeals Appeals Translated
(Criminal) (Civil)
1997 1 0 (0%) 4 0 (0%) 5 0 (0%)
1998 6 1 (17%) 22 7 (32%) 28 8 (29%)
1999 9 1 (11%) 17 3 (18%) 26 4 (15%)
2000 9 2 (22%) 22 9 (41%) 31 11 (35%)
2001 5 1 (20%) 16 5 (31%) 21 6 (29%)
2002 6 1 (17%) 11 5 (45%) 17 6 (35%)
2003 6 4 (67%) 17 6 (35%) 23 10 (43%)
2004 16 7 (44%) 14 7 (50%) 30 14 (47%)
2005 12 6 (50%) 28 11 (39%) 40 17 (43%)
2006 12 5 (42%) 18 3 (17%) 30 8 (27%)
2007 9 3 (33%) 25 6 (24%) 34 9 (26%)
2008 12 3 (25%) 23 5 (22%) 35 8 (23%)
2009 10 3 (30%) 16 6 (38%) 26 9 (34%)
2010 8 3 (38%) 12 2 (17%) 20 5 (25%)
2011 10 3 (30%) 18 5 (28%) 28 8 (29%)
2012 10 2 (20%) 20 2 (10%) 30 4 (13%)
2013 7 0 (0%) 17 1 (6%) 24 1 (4%)
2014 12 0 (0%) 10 3 (30%) 22 3 (14%)
2015 8 2 (25%) 17 0 (0%) 25 2 (8%)
2016 14 1 (7%) 10 0 (0%) 24 1 (4%)
2017 8 0 (0%) 7 0 (0%) 15 0 (0%)
2018 15 0 (0%) 9 0 (0%) 26 0 (0%)
2019 8 6 (75%) 7 0 (0%) 15 6 (40%)
2020 2 1 (50%) 6 0 (0%) 7 1 (14%)
2021 9 1 (11%) 3 0 (0%) 12 1 (8%)

66
There appears to be a single decision issued by the CFA written originally in Chinese, dealing with an appeal by a
self-represented litigant as to the calculation of a costs order stemming from FACV4/2004. The rejection of his
appeal was written by Chan NPJ and was not translated into English. Curiously, the primary decision was itself
written in English and untranslated (Mak Shiu Tong v Yue Kwok & Anor, [2004] HKCFA 38).
 TOTAL 224 56 (25) 369 86 (23%) 593 142 (24%)
1997-
2021

Translation of CFA Judgments, 1997-2021

50
45
40
35
30
25
20
15
10
5
0
97
98
99
00
01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
19
19
19
20
20
20
20
20
20
20
20
20
20
20
20
20
20
20
20
20
20
20
20
20
20
Final Judgments Translated % Linear (%)

On the matter of identifying which judgements ought to be translated there are no publicly

available documents that detail the criteria behind this evaluation beyond the boilerplate

reference to “jurisprudential value”. In 2014, the Judiciary Administration stated that priority for

translation was given to CFA judgments relating to the Basic Law and the Bill of Rights.67 But

this does not seem to reflect reality. When pressed for further information on the process, a

member of the Court Language Section (CLS) would only say “priority for translation [is] set by

an internal working group led by relevant Judges and Judicial Officers.”68 A lawyer responsible

for vetting the translations reported that in their view the selection of CFA judgments for

67
“Controlling Officer’s Reply”, Examination of Estimates of Expenditure 2014-15, Reply JA018 to Question No.
6017: https://www.judiciary.hk/doc/en/other_information/fc_questions/ja_e_1415.pdf.
68
Private correspondence, 15 June 2022, email on file with the author.
translation was effectively “random”.69 The lack of clarity about what counts as having sufficient

‘value’ to be translated is troubling. By definition, the majority of appeals heard by the CFA will

relate to a legal question of “great general or public importance”70; yet in practice this is no

guarantee that a translation of the resulting judgment will be made into Chinese.

In the last decade, the CFA has published English-only judgments relating to: the right of

transgender people to be married to someone of the same gender to which they were assigned at

birth,71 a significant change to the application of the proportionality test used to limit rights under

the Basic Law,72 the constitutionality of limitations on expression rights inside the Legislative

Council,73 sentencing principles applied to demonstrators who claimed to be engaged in civil

disobedience,74 the rights of same-sex couples married outside Hong Kong,75 the meaning of the

Bill of Rights prohibition on servitude and compulsory labour,76 the constitutionality of a

controversial ‘anti-mask’ law introduced during political unrest,77 the elements of the offence of

unlawful assembly and riot,78 and the constitutionality of the ‘small house’ policy applicable to

the indigenous inhabitants of the New Territories.79 This list is merely a subset of English-only

judgments, but the point should be clear – regardless of the claim that decisions of

“jurisprudential value” or those related to constitutional rights are to be given priority for

69
Interview, 1 Mar 2022, transcript on file with the author.
70
Court of Final Appeal Ordinance, s. 22(1); 32(2).
71
W v Registrar of Marriages, [2013] HKCFA 39.
72
Hysan Development Co v Town Planning Board [2016] HKCFA 66; Kwok Cheuk Kin v Secretary for
Constitutional and Mainland Affairs [2017] HKCFA 44.
73
Fong Kwok Shan v HKSAR [2017] HKCFA 59; Secretary of Justice v Leung Kwok Hung [2021] HKCFA 32.
74
Secretary for Justice v Law Kwun Chung [2018] HKCFA 4; Secretary for Justice v Leung Hiu Yeung [2018]
HKCFA 43.
75
QT v Director of Immigration [2018] HKCFA 28; Leung Chun Kwong v Secretary for the Civil Service [2019]
HKCFA 19.
76
ZN v Secretary for Justice [2019] HKCFA 53.
77
Chief Executive in Council v Kwok Wing Hang [2020] HKCFA 42.
78
HKSAR v Lo Kin Man [2021] HKCFA 37.
79
Kwok Cheuk Kin v Director of Lands & Ors v Heung Yee Kuk (interested party) [2021] HKCFA 38.
translation, this is simply not the case in practice. There is a wide range of judgments relating to

important matters of governance, individual rights, and the legal system that are coming out of

the CFA that are not available in a complete, official Chinese translation, even years after they

have been published in English. There is also no apparent mechanism for review of a decision to

translate or not. This is problematic for several reasons, quite apart from the access issues that

arise and symbolic messaging created when decisions go untranslated (see Part 3, below).

Having the Judiciary selectively deem which decisions are of value and which are not places

cases in an obvious hierarchy – this may have the effect of discouraging lawyers from citing

certain decisions, and may even result in different arguments being put forward depending upon

the language in which the proceedings are conducted.

It has been twenty-five years since Wong called for intense efforts to improve rates of translation

of judicial decisions at all levels of the court hierarchy, arguing that “legal bilingualism

necessitates that the law is fully and equally available in both English and Chinese”.80 Given the

seeming commitment in both the Joint Declaration and the Basic Law to greater parity between

Chinese and English, it would have been reasonable to assume that the local judiciary would

seek to ensure bilingualism in its own jurisprudence after the transition to Chinese sovereignty.

But the above analysis shows that not only has the CFA not moved steadily closer to the goal of

a fully bilingual jurisprudence since its establishment a quarter of a century ago, it has in fact

started to move further away. While the total rate of translation of final appeals over the life of

the Court has been about 25%, over the last ten years it is only about 10% (19 of 200 judgments

resolving final appeals). Even if objections are raised to the methodology used by this paper to

80
Derry Wong, Securing a Bilingual Legal System for Hong Kong, 5 ASIA PACIFIC LAW REVIEW 63, 67 (1997).
assign judgments to a particular year or to otherwise classify them, the overall trend is

indisputably less translation.

It is not problematic in and of itself that the use of English in the courts remains, even under

Chinese sovereignty.81 It is a key part of Hong Kong’s link to the common law world and as

Cheung observes, no former British colony or dominion has “managed to cut the umbilical cord

to the common law’s mother tongue.”82 But well into the SAR-era the legal system of Hong

Kong remains divided into an English-speaking side of “haves”, “dominated by financially

affluent individual litigants and corporations and their skilled, experienced lawyers”, and a

Chinese-speaking side of “have-nots”, consisting of “unrepresented litigants who are apparently

desperate enough to exhaust every appeal channel available.”83 At the lower levels of the court

system, the matters to be considered are largely factual rather than legal and naturally “Chinese

speaking parties prefer to have proceedings conducted in Chinese.”84 The linguistic interests of

both the litigants and their representatives may change the higher up the hierarchy one goes. A

former Attorney General was of the view in 1988 that the need to refer to English-language

precedents along with “the complexity of legal issues, the use of expert evidence… and the use

of English in international trade and commerce all militate against Chinese as a practicable

81
Poon, META, 554 (2006); Wong, ASIA PACIFIC LAW REVIEW, 66 (1997). See also Joint Declaration, Art. 2; Basic
Law, Art. 8.
82
A. Cheung, LOY. L.A. INT'L & COMP. L.J., 335 (1997). Myanmar is a possible exception. It has replaced English
with Burmese as the language of the law but retains much of its common law system legal system. Powell observes
this has been accomplished in part by “phasing out the use of precedents”, thus eliminating the need for translation
(Powell, INTERNATIONAL JOURNAL OF LEGAL DISCOURSE, 306 (2016) citing Nick Cheesman How an authoritarian
regime in Burma used special courts to defeat judicial independence 45 LAW & SOCIETY REVIEW 801, 815 (2011).
See also Nang Yin Kham, An Introduction to the Law and Judicial System of Myanmar, MYANMAR LAW WORKING
PAPER SERIES 001, NUS Centre for Asian Legal Studies (2014):
https://law1.nus.edu.sg/pdfs/cals/working_papers/Myanmar/MWPS001.pdf.
83
Ng, JOURNAL OF EMPIRICAL LEGAL STUDIES, 142 (2011).
84
Thomas, HONG KONG L. J., 20 (1988). See also Kevin Kwok-yin Cheng, Moral Discourse in Hong Kong’s
Chinese Criminal Proceedings, 3 THE CHINESE JOURNAL OF COMPARATIVE LAW 375 (2015).
alternative to English in the higher courts.”85 At the appellate levels there is no need for

testimony by parties and the points to be discussed are purely questions of law. Appellate

litigation may more frequently feature “corporate litigants and the large firms who represent

them”, parties that often rely on English as the default language of the international workplace.86

In particular, the importance of international finance in Hong Kong means that there is an

ongoing need for a significant cadre of lawyers whose ‘legal mind’ operates primarily (if not

exclusively) in English.87

Being a small jurisdiction, much reference to non-local common law will continue to be made.

The fact that legal education in Hong Kong continues to be provided almost entirely in English

also serves to reinforce the notion of what constitutes the language of the law. The fact that all

existing judges, barristers, and solicitors are fluent in English means that the ‘path of least

resistance’ for many of them may be to continue to make legal arguments in English, referring to

well-known English-language precedents directly.88 Poon argues that the reluctance by some

barristers to use Chinese in the courtroom at the higher levels is driven in part by a fear of

“making mistakes”, having built careers primarily using English as the language of law.89 Ng

likewise describes Cantonese-speaking advocates who claim a preference for English in court on

the ground that they are able to make legal arguments with more precision in the latter.90 A Court

of Appeal judge has reported that “proficiency in the Chinese language of the legal

85
Id. at, 21.
86
Powell, INTERNATIONAL JOURNAL OF LEGAL DISCOURSE, 315 (2016).
87
Of course, as the Mainland market has come to dominate cross-border work the need for legal professionals
capable of operating at the highest levels in Putonghua has dramatically increased as well.
88
HC Janny Leung, Negotiating language status in multilingual jurisdictions: Rhetoric and reality, 209 SEMIOTICA
371, 387 (2016). See also Chen, HONG KONG LAW JOURNAL, 26 (1985).
89
Poon, META, 556 (2006).
90
NG, The Common Law in Two Voices: Language, Law, and the Post-Colonial Predicament in Hong Kong 217.
2009.
representatives” who have appeared before her “leaves something to be desired”, with a

“standard of Chinese and eloquence of expression pale in comparison” to those educated in the

Mainland or Taiwan.91 This situation is compounded by the practice of temporarily importing

both foreign counsel (more frequently at the higher levels)92 and judges from other common law

jurisdictions (exclusively to the CFA)93 who simply are unable to operate in Chinese at any level.

When this occurs, a judge will almost certainly exercise their discretion over choice of

procedural language in favour of English rather than force these high-status importees to rely on

simultaneous interpretation.

There may be a bias within the profession towards English for other reasons. Drawing on the

context of post-colonial Africa, Alexander identifies elite closure around language policies as a

method of preserving what Bourdieu called the ‘profits of distinction’: “the linguistic hierarchy

built into the colonial system led to knowledge of the conquerors’ language becoming a vital

component of the ‘cultural capital’ of the neo-colonial elite.”94 I suggest the de facto requirement

of an extremely high level of English fluency for lawyers in Hong Kong serves a useful

gatekeeping function for the members of the upper-middle class who form the bulk of the

profession. Lai & Byram note that in Hong Kong fluency in English continues to be “valuable

cultural capital… that parents want to transmit to their children [because] it will give them more

91
Kwan, HONG KONG LAW JOURNAL, 11 (2011).
92
For the temporary use of non-local practitioners see the Legal Practitioners Ordinance, Cap. 159, s. 27(4). See also
Re Simpson QC [2021] HKCA 22 and Re Perry QC [2021] HKCFI 113 for the court’s view on when it will be
permitted.
93
For the use of ‘overseas judges’ on the CFA see the Basic Law Art. 82 and the Court of Final Appeal Ordinance
Cap. 484, s. 9. See also Stuart Hargreaves, Canaries or Colonials? The Reduced Prominence of Hong Kong’s
‘Overseas Judges’ ASIAN JOURNAL OF COMPARATIVE LAW (2021), describing their use since 1997.
94
Neville Alexander, English Unassailable but Unattainable: The Dilemma of Language Policy in South African
Education, PRAESA, 11 (1999), citing Pierre Bourdieu, DISTINCTION: A SOCIAL CRITIQUE OF THE JUDGMENT OF
TASTE 3 (1984).
symbolic capital and more economic, social, and political advantages.”95 It stands to reason that

those who already operate professionally in English and who possess the resources to ensure

their children attain English fluency from a young age are largely content with a system that

minimizes potential competition. In short, “the intelligentsia reinforce [the status quo] because

their relative proficiency in the dominant colonial language” benefits them.96 Given that an

ongoing preference for the colonial language by members of the legal profession can be found in

several post-colonial settings, it is unsurprising to find it has also taken root in Hong Kong.97

PART 3: (WHY) DOES IT MATTER?

Since 1995, the official policy of the Government has been to promote a bi-literate (Chinese and

English) and tri-lingual (Cantonese, Putonghua98, and English) society.99 In a 2015 survey,

89.1% of the population reported Cantonese as their native language, while 99.6% reported an

ability to speak it.100 The next most common native language was Putonghua, at 4.7% and with

68% of the population reporting an ability to speak it.101 A tiny fraction of the population

reported English as their native language (0.6%), though 62.2% reported an ability to speak it.102

The Government’s push for a tri-lingual and bi-literate population appears largely made on

instrumental grounds; Leung suggests it is not aimed at “improv[ing] unity or diversity” within

95
Pak-Sang Lai & Michael Byram, The Politics of Bilingualism: A reproduction analysis of the policy of mother
tongue education in Hong Kong after 1997, 33 COMPARE: A JOURNAL OF COMPARATIVE AND INTERNATIONAL
EDUCATION 315, 322 (2010).
96
Neville Alexander, The African Renaissance and the Use of African Languages in Tertiary Education, PRAESA,
16 (2003).
97
See Leung, SEMIOTICA, 389-390 (2016).
98
Sometimes also referred to in English as “Mandarin Chinese”.
99
John Bacon-Shone & Kingsley Bolton, Bilingualisms and Multilingualism in the HKSAR: Language Surveys and
Hong Kong’s Changing Linguistic Profile, in LANGUAGE AND SOCIETY IN HONG KONG 28, (Kingsley Bolton & Han
Yang eds., 2008).
100
John Bacon-Shone, et al., Language Use, Proficiency and Attitudes in Hong Kong, 18 (2015).
101
Id.
102
Id.
Hong Kong, but rather is about the needs of Hong Kong as a financial hub.103 Lai and Byram

conclude that the policy has had success in raising the status of Cantonese so that it is now

commonly used in Government matters.104 They also note that Putonghua has “acquired

instrumental and transactional value” as cross-border investment and trade with the Mainland has

become the dominant feature of Hong Kong’s economy.105 Pierson argues however that in the

longer run the trilingual plan seeks to position “Putonghua [as] the language of politics and

administration, English the language of technology, commerce, and finance, and Cantonese the

language of family and intimacy.”106

Whatever its ultimate purpose, the trilingual policy implies that non-speakers of any of the three

languages must be provided education to improve their linguistic capacity. While it is an open

question as to whether Hong Kong has adopted sufficiently effective English language education

policies,107 the most recent Government linguistic census found that 29% of people self-reported

having “very good or good” oral proficiency in English, 37.9% reported “average” oral

proficiency, and 33.1% considered themselves to have “not so good or no knowledge” in

English.108 For written English, the three self-reported numbers respectively were 28.6%, 39.2%,

103
Leung, SEMIOTICA, 381 (2016). Young law students in Hong Kong hoping to be hired by a large legal
multinational or investment bank are well-aware they must demonstrate effective ‘bi-literacy and tri-lingualism’ as
table stakes to be considered for trainee contracts with firms at the more lucrative end of the job market.
104
Lai & Byram, COMPARE: A JOURNAL OF COMPARATIVE AND INTERNATIONAL EDUCATION, 317 (2010).
105
Id.
106
Id., citing H Pierson, Cantonese, English, or Putonghua – unresolved communication issue in Hong Kong’s
future 183-184 in EDUCATION AND SOCIETY IN HONG KONG – TOWARD ONE COUNTRY AND TWO SYSTEMS (G.A.
Postiglione, ed., 1992).
107
On the Government’s approach to English language education see generally Angel M.Y. Linn, Deconstructing
“Mixed Code”, in LANGUAGE AND EDUCATION IN POSTCOLONIAL HONG KONG (David C.S. Li, et al. eds., 1996);
Bolton, APPLIED LINGUISTICS REVIEW, (2011); Lung Shan Peter Chung, Official Language Policy in Hong Kong,
with Particular Reference to the Legislative Council (2003) Unpublished Master’s Thesis at University of Hong
Kong); Bacon-Shone & Bolton. 2008; Lai & Byram, COMPARE: A JOURNAL OF COMPARATIVE AND INTERNATIONAL
EDUCATION, (2010).
108
“Use of Language in Hong Kong”, Hong Kong Monthly Digest of Statistics, Census & Statistics Department,
Jan. 2020: https://www.censtatd.gov.hk/en/data/stat_report/product/FA100270/att/B72001FB2020XXXXB0100.pdf.
and 32.2%.109 Researchers from the University of Hong Kong have attempted to create a more

accurate assessment by calibrating participants’ self-reported ability in the Government censuses

through a standardized test and expert review.110 They concluded that only 1.5% of people in

Hong Kong spoke English “very well”, 4.4% “well”, 20.6% “quite well”, 18.4% “a little”, 27.1%

“a few sentences”, and 27.9% “not at all.”111 The HKU team further concluded that only 4.7% of

the Hong Kong population could write English “very well”, 10.6% “well”, 8.6% “quite well”,

30.7% “a little”, 23% “a few sentences”, and 22.3% “not at all.”112

It is self-evident that the judgments coming out of the CFA are written in relatively complicated

language. Operating on the assumption that the HKU research is accurate and that meaningfully

understanding a English-language court judgment requires fluency at the “quite well” or higher

level of writing,113 these statistics mean that roughly only one-quarter of the population of Hong

Kong can properly understand a court decision that is not translated into Chinese. Even if one

discounts the HKU study and prefers to rely on self-reported ability, still less than one-third of

the population (that is, having “good or very good” ability in written English) might reasonably

be expected to be able to read an untranslated English-language court judgment.

The Judiciary Administration has argued that it is not necessary to translate the bulk of the output

of the court system for various reasons including that it is non-consequential, that private

organizations already translate summaries, and that press summaries are ‘good enough’ for non-

109
Id.
110
Bacon-Shone, et al., (2015).
111
Id. at, 94.
112
Id. at, 97. See also https://hongkongfp.com/2015/08/25/only-around-6-of-hongkongers-speak-english-well-hku-
study-shows/
113
The HKU research did not separate out “reading” ability from “writing”, but the writing tests used by the were
dependent on the volunteer responding accurately to prompts they read.
professionals.114 It is true that all those who have completed a legal education in Hong Kong will

rank highly on any measure of English fluency and so the unavailability of CFA judgments in

Chinese is unlikely to be overly important to them, professionally speaking. This kind of

instrumental reasoning is also sometimes adopted by those who advocate for more translation of

judgments. Poon, for example, suggests that the existence of more high quality translations will

gradually increase consciousness and comfort amongst lawyers in using Chinese in court, which

will help strengthen bilingualism throughout the legal system.115 But in my view the reason to

demand more equal translation has little to do with the interests of the legal profession.

To reiterate: 90% of the CFA’s output over the last ten years is only published in a language that

perhaps one-quarter to one-third of the population can claim sufficient fluency to understand that

output. It is trite to note that the rule of law requires an open judicial process. Yet

notwithstanding the Government’s near-constant reference to the ‘rule of law’ as the cornerstone

of Hong Kong’s governance, an important portion of that process is closed to a majority of the

population. Equal access to justice for monolinguals demands both effective interpretation and

translation.116 Though the legal system clearly now provides for the this in courtroom

proceedings, the ability of litigants to read the output of the apex court in the official language in

which they are fluent is equally important. Free and equal access to legal information – including

court judgments – “enhances transparency in governance and access to justice and improves the

prospects of the rule of law.”117

114
Controlling Officer’s Reply”, Examination of Estimates of Expenditure 2014-15, Reply JA018 to Question No.
6017: https://www.judiciary.hk/doc/en/other_information/fc_questions/ja_e_1415.pdf. See also Part 4.
115
Poon, META, 556 (2006).
116
Drugan & Kredens, 411. 2018.
117
Andrew Mowbray & Patrick Keyzer, International Challenges to the Computerisation of the Law, 6 UTS L. REV.
7, 7 (2004).
Unrepresented litigants (a greater portion of whom appear to be monolingual Chinese

speakers118) are disadvantaged in their preparations for court if they do not have equal access to

judgments that make up Hong Kong’s common law. Vice-president of the Court of Appeal

Kwan Shuk-hing observed that in her dealings with unrepresented litigants, “the majority of the

cases that constitute the common law are only written in English… those who have no legal

knowledge or who are not conversant in English would find their hands tied.”119 Even if truly

equal access to justice is an unattainable ideal in a system in which money deeply matters,

“adequate access should be a social priority.”120 If unrepresented litigants in Hong Kong who are

not literate in English are at the meaningful disadvantage that Kwan describes, then the current

state is far from ‘adequate’. Tursun has argued that policies that fail to provide for adequate

interpretation or translation will “negatively impact linguistic minority groups, hinder their

ability to access government services, and deny them their right to use their own language in

public life.” Though a lack of English fluency no longer hinders monolingual Cantonese

speakers’ access to government services or right to participate in public life generally, the

continued existence of English-only decisions forming the majority of published judgments on

the CFA means those who are unable to operate in English at a sufficiently high level simply are

effectively denied equal access to this aspect of the legal system. As Leung puts it, the kind of

differential treatment occasioned by language policy has “a major effect on the scale of resources

118
Ng, JOURNAL OF EMPIRICAL LEGAL STUDIES, 138 (2011); Yeung & Leung, THE INTERNATIONAL JOURNAL OF
SPEECH, LANGUAGE AND THE LAW, 232-235 (2019).
119
Kwan, HONG KONG LAW JOURNAL, 10 (2011).
120
Deborah L. Rhode, Access to Justice: Connecting Principles to Practice, 17 GEO. J. LEGAL ETHICS 369, 376
(2004).
available to groups who are all subject to the same law, but live within different language

communities.”121

But the failure to recognize the linguistic needs of monolingual speakers who form the majority

of the population is not just an instrumental matter of access, but also one of dignity. The

continued privileging of English at the high end of the legal system carries with it a normative

statement about the value and importance of monolingual Chinese speakers in Hong Kong.

Farrow argues that it deeply matters the extent to which individuals “see themselves reflected” in

a legal system.122 An “unreflective system”, he argues, is no different than an inaccessible one

and will alienate those who do not see themselves in it.123 Hlophe likewise argues the exclusion

of indigenous African language speakers from South African court processes due inadequate

interpretation facilities is not simply a problem of access, but is an affront to the “dignity and

self-respect” of those speakers.124 Asserting that monolingual Chinese-speaking Hong Kongers

have an equal right to read the output of the region’s highest court in the official language in

which they are literate is an assertion of the dignity of the group.125

It is important to not get lost in the weeds of instrumentality when considering the interplay of

language and the law. On this point, consideration of an aspect of the Canadian experience of

legal bilingualism may be instructive. Though a settler nation with a pre-existing Indigenous

population,126 much of twentieth-century Canadian political evolution turned on a lack of

121
Leung, SEMIOTICA, 372 (2016).
122
Trevor C.W. Farrow, What is Access to Justice?, 51 OSGOODE HALL L. J. 957, 974 (2014).
123
Id.
124
JM Hlophe, Receiving justice in your own language: the neeed for effective court interpreting in our multilingual
society, 17 ADVOCATE, 43 (2004).
125
De Schutter, 23. 2017.
126
See eg Cole Harris, A BOUNDED LAND: REFLECTIONS ON SETTLER COLONIALISM IN CANADA (2020).
integration between what the author Hugh MacLennan called ‘the two solitudes’127 – the English

speaking and French speaking communities. The “Quiet Revolution” of the 1960s in (French-

speaking) Quebec resulted in increasing nationalism and calls for dissolution of the country.128

Reforms to Canada’s language laws and official recognition of multiculturalism as a state policy

were part of the effort to combat this. Prior to reform, the Supreme Court of Canada published

the vast majority of its decisions only in English. In 1967, a Royal Commission concluded that

“if the Supreme Court is to produce a jurisprudence which can be shared by all Canadians, its

decisions must be equally accessible to the country’s two major linguistic groups.”129 But the

Royal Commission did not recommend a revamp to Canadian language laws simply to ensure

Francophones could read the Court’s complete output should they end up in litigation. The

Commission recognized that the normative message that would be sent to the Francophone

community by the changes in the law they recommended was as important, indeed perhaps more

so, than the instrumental advantages of a bilingual court jurisprudence for litigants. It was about

reassuring the Quebecois about their place and value in Canada. The Government agreed, and the

resulting Official Languages Act 1968-69 required inter alia that that all final decisions, orders,

and judgments of any federal court had to be published in both English and French where they

dealt with a question of law of general public interest or importance.130

Obviously the language politics and identity questions at play in Hong Kong are very different

than those in Canada. But the colonial history of Hong Kong and the associated diglossia that has

127
Hugh MacLennan, THE TWO SOLITUDES (1945).
128
See eg Francois Rocher, The Evolving Parameters of Quebec Nationalism, 4 INTERNATIONAL JOURNAL ON
MULTICULTURAL STUDIES 1 (2002).
129
Royal Commission on Bilingualism and Biculturalism, Privy Council Office of Canada, 1967,
https://www.publications.gc.ca/site/eng/9.699861/publication.html (cited in Teresa Scassa, Language of Judgment
and the Supreme Court of Canada, 43 UNIVERSITY OF NEW BRUNSWICK LAW JOURNAL 169, 170 (1994).
130
Official Languages Act 1968-69, s. 5(1).
characterized the legal system mean that despite forming the vast majority of the population,

Cantonese speakers have effectively suffered in the fashion of linguistic minority groups

elsewhere. Chen contends it is the nature of Hong Kong as predominantly culturally Chinese

community that demands an end to the privileging of English within the legal system.131 As

Phillipson & Skutnabb-Kangas note, “language policy issues are not confined to matters of the

rights of minority language speakers.”132 To the extent that members of the linguistic majority

are still unable to access a complete CFA decisions due insufficient provision of government

resources for translation, it is reasonable to identify this as a ‘linguistic wrong’.133

Notwithstanding the real and important steps taken towards legal bilingualism in the SAR-era,

the fact that monolingual Cantonese speakers continue to be disadvantaged at the highest ends of

the legal system despite forming the overwhelming majority within Hong Kong “is a truth that is

tainted with and demonstrates oppression.”134 The normative message sent by continued reliance

on English as the exclusive language of the majority of the CFA’s output in the post-colonial era

cannot be ignored; it is a form of “linguistic neo-imperialism”.135 However, it is important to

draw a distinction between a moral claim to linguistic equality in the translation of CFA

judgments and a legal one.

PART 4: IS THERE A ‘RIGHT’ TO A BILINGUAL CFA CORPUS?

131
Chen, HONG KONG LAW JOURNAL, 28 (1985).
132
Robert Phillipson & Tove Skutnabb-Kangas, Linguistic Rights and Wrongs, 16 APPLIED LINGUISTICS 483, 487
(1995).
133
Id. at, 484..
134
Phil C. W. Chan, Official Languages and Bilingualism in the Courtroom: Hong Kong, Canada, the Republic of
Ireland, and International Law, 11 INTERNATIONAL JOURNAL OF HUMAN RIGHTS 199, 208 (2009).
135
VANESSA PUPAVAC, LANGUAGE RIGHTS: FROM FREE SPEECH TO LINGUISTIC GOVERNANCE 2 (Palgrave
Macmillan. 2012).
The importance of language rights is well-recognized.136 In 1948 the UN Universal Declaration

of Human Rights provided that all rights within it were to be enjoyed without distinction on the

ground of language; the ICCPR and ICESCR do the same.137 The ICCPR also holds that

linguistic minority groups should not be denied the right “use their own language”138 and seeks

to guarantee fairness in criminal proceedings by mandating interpretation.139 The 1992 UN

Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic

Minorities declares that states should protect linguistic minorities and adopt appropriate

measures to advance their interests, including in participating in public life.140

Section 3 of OLO itself refers to Chinese and English as having ‘equal status’ and ‘equality of

use’ for the purposes identified, which include communication between public officers and

members of the public and court proceedings.141 It is arguable that published court decisions are

‘communications’ to the public – and it cannot be seriously contended that the continued practice

of issuing a majority of CFA decisions in only one language represents ‘equality of use’.

However, s. 5 of the OLO appears to derogate in part from the requirement of equality – in the

context of judicial proceedings, it is for the court to determine in which language they will be

conducted.142 The same section also holds that the Chief Justice may also make practice

directions and rules regarding the use of official languages in the courts.143 Together, these

136
Jacqueline Mowbray, Translation as marginalisation? International law, translation and the status of linguistic
minorities, in TRANSLATION AND PUBLIC POLICY: INTERDISCIPLINARY PERSPECTIVES AND CASE STUDIES 32,
(Gabriel González Núñez & Reine Meylaerts eds., 2017).
137
ICCPR Art. 2, ICESCR Art. 2.
138
ICCPR, Art. 27.
139
ICCPR, Art 14.
140
UN General Assembly resolution 47/135, 18 Dec. 1992: https://www.ohchr.org/en/instruments-
mechanisms/instruments/declaration-rights-persons-belonging-national-or-ethnic.
141
OLO, s. 3.
142
OLO, s. 5.
143
OLO, s. 5(5).
provisions probably foreclose a claim to translated court decisions under the ‘equality of use’

provision of the OLO. Indeed, existing case law indicates the courts do not look kindly on

arguments suggesting that in the context of the legal system the language right provided by the

OLO extends beyond the availability of interpretation during proceedings.

In Re Cheng Kai Nam Gary,144 the Court of First Instance dealt with a claim that a criminal

defendant had a constitutional right to have his case heard by a Cantonese-speaking judge.

Hartmann J. held that read together Art. 9 of the Basic Law and the OLO did not mean that

individuals had a right to be directly understood in either official language, but simply the right

to employ either language in court.

The constitutional right of a person to use the Chinese language in a court of law in Hong
Kong means no more than the right of that person to employ that language, that is, to
utilize it, for the purpose of forwarding or protecting his interests. That right to employ or
utilize the language does not imply a reciprocal obligation on the part of the court to
speak and read that language. It is sufficient if processes, such as the employment of
interpreters or translators, exist to facilitate the court comprehending what is said or
written.145

Hartmann J. also noted that the Basic Law’s preservation of the common law – “the root

language of which is English” – implied the need for translation and interpretation would

continue.146 So long as that was available during proceedings, he said, then a monolingual

speaker’s right to a fair trial was not harmed simply by the presence of a judge who did not share

their linguistic background.147 The Court of Appeal subsequently applied this finding in Kong

Lai Wah, reiterating that while the law protected the rights of litigants to use either official

144
Re Cheng Kai Nam Gary [2001] HKCFI 1034.
145
Id., 19. For comparative discussion on the distinction between the right to use a language versus the right to be
directly understood in a language, see also Janny Leung, SHALLOW EQUALITY AND SYMBOLIC JURISPRUDENCE IN
MULTILINGUAL LEGAL ORDERS (2019).
146
Re Cheng Kai Nam Gary [2001] HKCFI 1034, 17.
147
Id., 21.
language in court, that preference could not override the court’s own choice regarding in which

language to conduct the proceeding.148 This narrow approach is further buttressed by a recent

Court of First Instance decision rejecting an argument that ‘accessibility’ of the law turned on it

being made equally available in both English and Chinese.149 It further found that the inability of

a monolingual English-speaking counsel to read the National Security Law in its authentic

Chinese version (the English is provided only “for reference”) was no impairment on the

accused’s right to choose counsel.150 The narrow interpretation given thus far to the OLO’s

application to language rights within the legal system would seem to foreclose demands for total

translation equality under it.

Under Hong Kong’s current jurisprudence, it is also unlikely a court would find a constitutional

right to complete translation of all cases (of the CFA or otherwise). There are a few reasons why.

First, any constitutional challenge to the current approach would have to begin by identifying a

specific Basic Law or Bill of Rights Ordinance (BORO)151 provision that is being violated. It is

true that Art. 9 of the Basic Law sets out Chinese and English as official languages.152 But Art. 9

appears top-down rather than bottom-up – in other words, it appears to permit the use of both

Chinese and English by the executive, legislative, and judicial authorities rather than

guaranteeing an individual right of access to services in both of those languages (hence likely

why it appears in Chapter 1 as a ‘general principle’, rather than Chapter 3, where the other

individual rights appear). Art. 9 is unlikely to ground a claim to full translation on this basis, and

148
HKSAR v. Kong Lai Wah [2008] HKCA 454, 14-15.
149
Tong Ying Kit v HKSAR [2020] HKCFI 2133, 69-77.
150
Id., 74.
151
The Bill of Rights Ordinance, Cap. 383.
152
Basic Law, Art. 9.
in any event as shown Hong Kong now does have a bilingual system that allows for the use of

either Chinese or English by members of the public when engaging in dealings with public

bodies in a general sense.

The Basic Law also requires implementation of the International Covenant on Civil and Political

Rights (ICCPR) into Hong Kong’s domestic law, which is done through the BORO.153 Art. 10

and Art. 11 of the BORO (together incorporating Art. 14 of the ICCPR) provide for equality

before the courts and tribunals as well as the assurance that a criminal defendant will have free

assistance of an interpreter if needed. In Hong Kong, this standard is met thanks to s.5(3) of the

OLO (allowing for the use of either official language in court proceedings) and the availability of

interpretation for anyone who does not speak either language. While the UN Human Rights

Committee’s general comments on Art. 14 of the ICCPR discusses the importance of access to

translation of ‘documents’ of those charged with criminal offences in addition to

interpretation,154 it also holds that so long as counsel can read all the relevant documents and the

accused is provided with necessary interpretation of court proceedings this is sufficient; the

provision of Legal Aid for those charged with a crime to be heard in the District Court or above

in Hong Kong appears to meet this standard.155

Art. 25 of the Basic Law and Art. 22 of the BORO (incorporating Art. 26 of the ICCPR) together

form the general ‘equality’ provisions of Hong Kong’s constitutional structure, with the former

153
Basic Law, Art. 39.
154
UNHRC, “General comment no. 32, Article 14, Right to equality before courts and tribunals and to fair trial”,
CCPR/C/GC/32: https://digitallibrary.un.org/record/606075.
155
https://www.lad.gov.hk/eng/las/criminal/scope.html. Duty Lawyers will be assigned for those charged with
offences heard the Magistrates’ Courts. The point is that in either case, a monolingual Cantonese speaker charged
with a criminal offence will be guaranteed counsel who will be sufficiently fluent in English to have qualified as a
lawyer in Hong Kong.
guaranteeing equality before the law and the latter forbidding discrimination on various grounds

including ‘language’. While there is no law or policy here that directly discriminates, it is

conceivable that a court might accept that a lack of complete translation of court decisions results

in indirect discrimination156 towards monolingual Cantonese speakers. Loper has noted that the

courts may be open to taking dignity (which does not appear within the Basic Law) into account

when expanding the scope of an existing textual right.157 But even in an optimistic scenario in

which a court accepted that the failure to completely translate judgments engaged the equality

right in this fashion, the largely deferential approach the courts of Hong Kong take when matters

of how best to allocate scarce public resources are at play suggest a constitutional challenge to

the failure to translate would ultimately fail.

While the courts do more closely scrutinize differential treatment where it is based on ‘core

values’ (and this probably includes language),158 the intensity of the scrutiny still turns in part on

the “degree of interference with the right in question”.159 Given all the other ways in which the

legal system tries to provide for linguistic equality, it is doubtful the courts would consider a

choice to prioritize certain judgements for translation over others a severe interference with the

language right. Where the law or policy is based upon the allocation of scarce public resources

and does not significantly interfere with a ‘core value’, then the courts are generally deferential

to government decisions on how best to allocate those resources provided the choices fall

156
See Leung Chun Kwong v Secretary for the Civil Service [2019] HKCFA 19, at para. 18.
157
Kelley Loper, Dignity as a Constitutional Value in Hong Kong: Toward a Contextual Approach? in HUMAN
DIGNITY IN ASIA: DIALOGUE BETWEEN LAW AND CULTURE (Jimmy Chia-Shin Hsu, ed., 2022).
158
QT v Director of Immigration, [2018] HKCFA 28, at para 106.
159
Hysan Development Co v Town Planning Board. Hysan identifies the spectrum of review as a sliding scale rather
than a binary choice.
somewhere within the ‘reasonable’ frame.160 In short, even a generous interpretation by the

courts of constitutional provisions related to linguistic equality underpinned by an

acknowledgment of a dignitary root to the right is probably insufficient to result in

constitutionally-mandated complete translation of the CFA’s jurisprudence.

But while there may be no constitutional right under Hong Kong law to a completely translated

corpus, that does not mean there is no legitimate political demand for one. There is no reason for

the public to accept statements that Hong Kong is characterized by a ‘bilingual legal system’

when a clear linguistic hierarchy remains within aspects of it. Nor is there good reason for the

public to accept a model in which judgments that go to the heart of their society are made freely

available only in the language of the former colonial power.

PART 5: ALTERNATIVES

Multilingual Case Summaries

Could an increase in the number or quality of Chinese-language summaries of CFA decisions

suffice? There are already several different kinds. Since 2011, the CFA has begun to publish

what it calls ‘press summaries’ of nearly all its substantive decisions, in both English and

Chinese.161 The summaries are explicitly deemed to not be part of the judgment and are prepared

not by the judges but by the Court’s Judicial Assistants, recent law school graduates who take

160
Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409; Kong Yunming v Director of Social Welfare (2013)
16 HKCFAR 950; Infinger v Housing Authority [2020] HKCFI 329.
161
See for instance HKSAR v Chan Kam Ching [2022] HKCFA 7. The full judgment (in English only) is published
here: https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=143540. That online judgment includes links to a
summary in English
(https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/FACC000001_2021_files/FACC000001_2021ES.h
tm) and another in Chinese
(https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/FACC000010_2021_files/FACC000010_2021CS.h
tm).
one-year positions assisting the Court before entering the profession.162 In part, this has been a

welcome development – more reporting of what the Court decides and why is a good thing, and

if these summaries aid in that then it is to be encouraged. However, the identification of the

summaries as for “the press” suggests the intended audience is not the general public and even if

it were the use of Chinese-language summaries written by recent graduates in place of full

translated decisions is inadequate. Translating even a relatively technical summary of a decision

into Chinese solves neither the access to justice issue nor the normative problem identified

above. Since the summaries are explicitly identified as not forming part of the judgment, they

cannot be relied directly on in court by a self-represented litigant; a summary cannot be cited in

litigation. But beyond this, the system presumes it is acceptable that monolingual Chinese

speakers must rely short summaries of decisions (or media reports thereof) to understand what

the CFA is doing in 90% of its decisions, while English speakers have access to the Court’s own

words and full reasoning. The unfair hierarchy and all that it symbolizes persists.

A second kind of case summary can be found in law reports. Judgments from the CFA that are

published in ‘authorized’ reports include a relatively detailed bilingual headnote.163 The

Judiciary Administration has pointed to the existence of these headnotes as part of the reason

they need not translate all judgments themselves.164 Unlike the summaries written by

inexperienced Judicial Assistants, the headnotes are written by lawyers with years of practice and

tend to be significantly more detailed – as is to be expected for a product aimed at members of

the profession rather than the public. Indeeed, though the law reports that feature these bilingual

162
See https://www.hkcfa.hk/en/about/who/jda/introduction/index.html.
163
See eg https://support.thomsonreuters.com.hk/product/westlaw-asia-new/updates-alerts/hong-kong-law-reports-
and-digest-judgments-recently-3.
164
https://www.judiciary.hk/doc/en/other_information/fc_questions/ja_e_1415.pdf
headnotes may indeed be ‘authorized’ by the Judiciary, they are not part of freely accessible

public resources. They appear only in expensive ‘for-profit’ law reports. They do not appear on

the CFA’s website, the Judiciary’s judgments archive, or via the Hong Kong Legal Information

Institute.165 This lack of accessibility means they have very limited value for members of the

public.

Since 2018 the Department of Justice has been publishing a third form of bilingual summaries.166

These have the advantage of being longer and more detailed than those provided by the Court

and the privately-made headnotes, and they are also provided for judgments at all levels rather

than just the CFA. On the other hand, they only relate to cases involving the government,

meaning many important private law developments go ignored. The Department of Justice is also

not a neutral reporting body – there is always the possibility that summaries will highlight certain

aspects of decisions and marginalize others. This is not an accusation of malice, but merely

recognition that (as with translation) any kind of editing or summarizing involves making value

judgments. It is one thing for the Court to offer its own summary to the public, but quite another

for a party to the proceeding to do so and then to expect the public to be able to rely on it as an

accurate statement of law. They are, of course, also still just ‘summaries’ – they do not reflect

equal access to the law.

While these different kinds of summaries are therefore valuable for various reasons, they are

alone insufficient to remedy the fundamental flaw with unequal translation practices. To the

165
The Hong Kong Legal Information Institute is jointly operated by HKU’s Faculty of Law and Department of
Computer Science, and aims to provide easy, free online access to all publicly available primary legal materials. See
https://www.hklii.hk/eng/.
166
https://www.doj.gov.hk/en/legco/pdf/ajls20200224e1.pdf, at 24.
extent they help increase public visibility and understanding of what the courts are doing, this is

unquestionably a good thing in an open society. But they cannot function as equally authentic167

versions of cases and so have limited value for self-represented litigants, and do nothing to

resolve the normative messaging that results from having Chinese continue to function only as

the ‘secondary’ language at the higher echelons of the legal system.

AI-assisted translation

The development of artificial intelligence (AI) / machine learning, in particular that related to

natural language processing, may offer the opportunity to speed up and reduce the costs of

translation.168 While AI-assisted translations are not yet at the level of accuracy achieved by a

professional human translator, continuous improvement in processing power and availability of

training data suggests the quality will improve over time.169 AI systems scale well and are

relatively inexpensive, and over the last twenty years in response to improvements in the

technology a number of jurisdictions have explored automatic translation of government

documents for linguistic minorities living within their borders.170 AI has also been used

elsewhere to assist in translation of court decisions. In Canada, TransLi is an AI-powered tool

leveraged by professional translators as part of their workflow – they are able to revise and

167
The issue of authenticity of translated judgments is an important one, but beyond the scope of this paper. Tam has
forcefully argued that the “equal authenticity principle is crucial to… access to justice” in Hong Kong, particularly
for unrepresented litigants (Tam, INTERNATIONAL JOURNAL OF LANGUAGE & LAW, 90, 81 (2020)). While the OLO
declares that bilingual Ordinances are equally authentic and rules of statutory interpretation are used to resolve
discrepancies, the Judiciary Administration has indicated that in the case of judgments that are translated, the only
authentic one is the original. Thus even when a translated version of an initially English judgment is relied upon in
Chinese-language proceedings (or vice-versa), where there is dispute over the meaning then reference to the original
will be made.
168
On the use of AI in the legal field generally see Campbell 2020.
169
Ryan Calo, Artificial Intelligence Policy: A Primer and Roadmap, 51 UC DAVIS L. REV. 399, 405 (2017).
170
Mary Nurminen & Maarit Koponen, Machine translation and fair access to information, 9 TRANSLATION SPACES
150, (2020).
improve translations after TransLi has essentially provided a ‘first draft’.171 The result is

significant time/cost savings but ultimate assurance of high quality (and authentic) translations,

as required by law.172 In 2019, the Supreme Court of India announced a plan to leverage AI to

translate all judgments from English into nine vernacular languages, after extensive delays and

inadequacies caused by resource intensive and time consuming manual translation.173 The

Supreme Court argued that translation was a necessity, in particular in matters of service and

criminal law in which litigants “from lower and middle strata of society… [are often] not well

versed in English.”174

Of course, AI translation between Chinese and English remains challenging and for the moment

any such translation would still require significant review by both interpreters and subsequently

legally trained personnel. The comparative lack of training materials (that is, an existing body of

legal documents published in both Chinese and English upon which to train an AI)175 mean

improvements in automated translation between English and Chinese are much harder to come

by than as between other languages. But in the absence of adequate funding, the Judiciary

Administration might consider publishing ‘less-perfect’ and clearly inauthentic AI-assisted

translations of decisions as a way of dealing with the resource issue. Such translations might, for

171
Fabrizio Gotti, et al., Automatic Translation of Court Judgements, 8TH AMTA CONFERENCE, (2008).
172
Atefeh Farzindar, Automatic Translation Management System for Legal Texts, MTSUMMIT 2009, (2009).
173
Jyoti Rattan & Vijay Rattan, “The COVID19 Crisis – the New Challenges Before the Indian Justice and Court
Administration System”, 12 INTERNATIONAL JOURNAL FOR COURT ADMINISTRATION 11, (2021).
174
Supreme Court of India Annual Report 2018-19:
https://main.sci.gov.in/pdf/AnnualReports/Supreme_High_Court_AR_English_2018-19.pdf. It should be noted
however that the project has progressed more slowly than anticipated (in part due to Covid). See
https://www.scobserver.in/journal/the-supreme-courts-translation-project-is-slowing-to-a-halt/.
175
The relative lack of training data for translating non-Western languages into English has been remarked on
outside the Chinese context too. See eg Shivaram Kalyanakrishnan & Rahul Alex Panicker, Opportunities and
Challenges for Artificial Intelligence in India, AIES ‘18, (2018); R. Mahesh & K. Sinha, Indian National
Translation Mission: Need for Integrating Human-Machine Translation, (2009); Jomy Jose, Machine Translation
with Special Reference to Malayalam Language, 5 INTERNATIONAL JOURNAL OF COMPUTER SCIENCE &
ENGINEERING TECHNOLOGY 465, (2014).
example, be of some use in conveying the basic meaning of lower court cases to members of the

public since ‘summaries’ are generally not provided for those. An alternative would be leverage

AI to assist the existing personnel with translation, perhaps allowing them to translate more

decisions in less time. But in the long term, monolingual Chinese speakers deserve access to the

corpus of the CFA on equal terms – the ability to read complete and authentic cases that shape

Hong Kong society in the official language in which they are literate; this is unlikely to be

achieved only through AI-based translation between English and Chinese in the near term.

Digests & Codification

Chen argued in 1985 that “codification of the common law” might partially solve the issue of

untranslated English precedents:

If bilingual codes, restating the common law, were enacted with respect to particular
fields of law, the need to rely on pre-existing case law would be reduced. Future
judgments of the Hong Kong courts which interpret provisions of the code would… be
reported in bilingual form.176

Wong too has argued that codification may be the “only answer” posed by the dilemma of a

bilingual legal system.177 The value of summations of areas of the common law translated into

Chinese has also been recognize in practice. In the late 1990s academics at City University

created a series of bilingual ‘digests’ of Hong Kong contract law, criminal law, and criminal

procedure.178 Unfortunately, once the initial grant money was exhausted no further digests were

created.179 Similarly, the Judiciary Administration selected excerpts of English-language

176
Chen, HONG KONG LAW JOURNAL, 44 (1985).
177
Wong, ASIA PACIFIC LAW REVIEW, 67, 71 (1997).
178
Zhao, LOY. L.A. INT'L & COMP. L.J., 310 (1997).
179
Private correspondence, 16 Feb. 2022, email on file with author.
decisions to be translated into Chinese ‘casebooks’, published by the private sector.180 A criminal

law casebook was published in 2003, a casebook on land cases in 2005, and a casebook on

employment cases in 2006.181 However, no further casebooks of this nature were forthcoming

and with the first three now being nearly 15 to 20 years out of date their current value as a legal

resource is doubtful. But though both of these projects ultimately foundered, the underlying

principles that inspired them does represent an alternative to way to provide Chinese speakers

with access to both English language common law precedents from outside Hong Kong and

current developments locally beyond case-by-case translation. There are possibly two paths.

A shift to formal codification would represent a radical change in the Hong Kong legal system. It

would certainly reduce the translation burden – reliance would be placed not on individual

precedents of the common law but formal, legislated bilingual codes based upon those

precedents. While with a long enough runway (ie post-2047) such a transition might be plausible,

given the current political climate announcement of such a change in the short term would

probably be interpreted as contrary to Basic Law’s preservation of the pre-existing legal system

and an attack on the foundations of the ‘one country, two systems’ model. Regardless of actual

substantive merit of the proposal, it would probably bring instability and unpredictability into the

legal system at a time the opposite is most needed. On balance then it seems implausible – the

costs would appear to outweigh the benefits. But could a less formal form of codification be a

more workable alternative? “Restatements” of the law in the US, for example, are not

promulgated by the legislature. They are published by the American Law Institute (ALI), an

180
“Controlling Officer’s Reply”, Examination of Estimates of Expenditure 2003-4, Reply S-JA007 to Oral
Question: https://www.judiciary.hk/en/other_information/fc_questions/fc_quest0304.html
181
https://www.legco.gov.hk/yr11-12/english/sec/library/1112in17-e.pdf, at 6.
independent organization,182 emerging when “scholars and practitioners systemise the applicable

law in a new, more accessible form, concentrating on the most important principles.”183 While

not having force of law themselves, the Restatements are highly detailed and are treated

persuasively in the courts to the point where they have been described as “private

codifications”.184

‘Restatements’ in Hong Kong might offer the opportunity for highly detailed, persuasive

summaries of legal principles to be made available in both English and Chinese but without

introducing the constitutional uncertainties that formal codification implies. On the other hand,

the infrastructure and resources required to produce Restatements upon which people would

actually agree seems immense, far beyond what was required in the short-lived CityU ‘digest’

project of the 1990s:

The compilation of Restatements lasts many years and is marked by intensive, continuous
exchange between scholars and practitioners. The ALI first determines, after careful
preliminary study, whether a topic is suitable. Then, the ALI appoints a reporter, usually
a scholar, who prepares an initial draft with a group of assistant reporters. This draft is
then discussed with a small group of advisors, including practitioners and scholars, and is
then revised. This revised draft is discussed by the ALI Council, a group of about 60
prominent judges, attorneys and professors. After the discussion, the revised draft is
either referred to the reporter for further consideration or is presented as a tentative draft
at the ALI Annual Meeting, which includes more than 4,000 members. This assembly
discusses the tentative draft and accepts it as is or, more frequently, asks the reporter to
make further changes. Eventually, the final and approved text is published by the ALI.185

If it takes 15 years for the next Restatement of Torts to emerge in the US that is not in and of

itself a problem. Restatements there are an attempt to deal with patchworks of law created by the

182
https://www.ali.org/about-ali/.
183
Ralf Michaels, Restatements, OXFORD HANDBOOK OF EUROPEAN PRIVATE LAW (Basedow, Hopt, Zimmermann
eds., 2011) available online unpaginated: https://scholarship.law.duke.edu/faculty_scholarship/2389/.
184
Id.
185
Id.
federal system, circuit courts, and the like. This is not an issue in Hong Kong. But such a slow

process would entirely defeat the purpose of quasi-codification in Hong Kong. If the goal is to

provide monolingual Chinese speakers with equal access to the principles and reasoning of the

courts, then embarking on the long path to either official or quasi-official codification seems far

more complex than simply increasing the resources available to existing court translation

facilities.

PART 6: RECOMMENDATIONS

Cheng argues the courts in post-colonial Hong Kong can (and should) enhance their moral

alignment with the public by ensuring they are perceived to be acting in procedurally just

ways.186 Provision of Chinese language versions of all final appeals heard by the CFA ought to

be considered part of this procedural justice. The perception of the legal system as remote and

out of touch with the public will only increase so long as the CFA continues to issue the majority

of its decisions exclusively in a language that the majority of the public cannot understand. This

paper therefore makes two recommendations. First, the OLO should be amended to require all

court decisions (at any level of the hierarchy) of legal importance or public interest be made

available in both English and Chinese; and that all final appeals of the CFA be made available in

the same. This would be consistent with the spirit and purpose of the OLO, which seeks to

guarantee public equality between the two official languages. While there may be no

constitutional obligation to amend the OLO in this way, there is obviously no constitutional

prohibition on doing so either. There is a moral obligation for the amendment as I have argued;

what is required to change the law is simply political will.

186
Cheng, LAW & SOCIAL INQUIRY, 223, 213 (2018).
Second, given the resource-constraint issue identified as far back as the Report of the

Subcommittee on the Translation of Case Precedents, the Government should increase funding to

the Judiciary Administration as necessary so that these new requirements can be met. What

might this cost? The Judiciary Administration does not as a matter of course publish a detailed

breakdown of its budget, so it is difficult to fully understand the extent to which translation

consumes its resources. However, in response to an access to information request made by the

author, the Judiciary Administrated stated that the overall salary budget for interpreters across

the court system in 2022 was 108.4 million HKD, but was unable to identify what percentage of

this went to courtroom interpretation versus document translation.187 In correspondence with the

author, a member of the CLS said that no statistics were maintained regarding the breakdown of

translators’ duties,188 however lawyer employed to vet translations of court judgments reported

that the “main reason” for a lack of translated judgments was insufficient resources, and that

internal priority to the allocation language-related resources was given to simultaneous

courtroom interpretation.189 Further information can be gleaned from responses to questions put

forward by members of the LegCo in the course of their oversight work. In 2015, the Judiciary

Administration revealed that the budget for the two translation units of the CLS was

approximately 33.3m HKD (assuming an annual increase concurrent with inflation, this would

be about 40m HKD in 2022).190 This also suggests priority is given to courtroom interpretation

over judgment translation (which is understandable, given the former is mandated).

187
Private correspondence, 7 July 2022, email on file with the author.
188
Private correspondence, 8 July 2022, email on file with the author.
189
Interview, 1 Mar 2022, transcript on file with the author.
190
“Controlling Officer’s Reply”, Examination of Estimates of Expenditure 2014-15, Reply JA018 to Question No.
6017: https://www.judiciary.hk/doc/en/other_information/fc_questions/ja_e_1415.pdf.
The Judiciary Administration has stated it does not record what percentage of budget for the two

translation units of the CLS goes to the translation of judgments specifically (or at what level of

the court), rather than translation of other court documents, certification services, etc. But even

though presumably only a portion of that 40m goes to translation of judgments, the number

reveals that at its core this is a solvable issue. We know that translation of CFA judgments, even

though difficult and time-consuming, can be done. It is ultimately a question of whether the CLS

has sufficient resources to translate the entire output of the CFA or whether it must prioritize.

Even doubling or tripling the budget of the CLS would be a drop in the Government’s financial

bucket. Setting aside one-off COVID19 response measures the Government continues to run an

annual surplus, with fiscal reserves of close to 1 trillion HKD,191 and anticipates that surpluses

will be between 30b HKD to 65b HKD per annum over the next four years.192 I suggest that a

relatively small amount of money would go a long way to helping monolingual Cantonese

speakers have equal access to the decisions of the Region’s apex court as have bilinguals or

monolingual English speakers.

CONCLUSION

To close this paper as it began with reference to the words of Hong Kong’s first Chinese Chief

Justice, successful adoption of a legal system in a new place requires that its “spirit [be]

intermingled with the culture and ethos of the new society”, preserving the ancestry of the

system while “eradicate[ing] its foreignness.”193 Linguistic equality in the published

191
https://www.legco.gov.hk/research-publications/english/2022rb01-the-2022-2023-budget-20220406-e.pdf, 1.1.
192
Id., 1.2
193
Ti-Liang Yang, “Address of the Chief Justice at the Opening of Legal Year”, (13 Jan 1992) cited in Chi-Kuen
Lau HONG KONG’S COLONIAL LEGACY 131 (1997).
 jurisprudence of Hong Kong’s legal system would further this process. This paper has argued

that while equality in the output of the CFA would be certainly helpful for self-represented

litigants seeking to rely on that court’s decisions in support their claims, more significantly it

would symbolize that in post-colonial Hong Kong monolingual Cantonese, monolingual English,

and bilingual residents all have an equal moral claim to be able to read for themselves the output

of the Region’s apex court. Ultimately, this is a matter of political will and thus a solvable

problem. In the new era of ‘patriots administering Hong Kong’,194 what could be more patriotic

than continuing to decolonize the legal system by ensuring that every decision of (at a minimum)

the CFA is available to be read in Chinese?

194
“Improve Electoral System Ensure Patriots Administering Hong Kong Preserve One Country, Two Systems
Enhance Stability and Prosperity” [sic], Constitutional & Mainland Affairs Bureau, Government of Hong Kong
(2021): https://www.cmab.gov.hk/improvement/filemanager/content/pdf/en/resource-centre/booklet.pdf.

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