Marginalization of Chinese in the Chinese Courtroom: The Need of Chinese Training for Legal Professionals in Hong Kong

Background and Aim of the Study

As a former British colony, Hong Kong has adopted the common law system and English was the medium of trial at all levels of court before the 1970s. It was only after several social movements such as ‘The Chinese Movement’ that led to heavy rioting in the 1960s, in which the people of Hong Kong led by university students and Chinese teachers took to the streets demanding equal status for Chinese and English, that the government became aware of the need to change its language policy. ² According to official records, the counsel and judges were allowed to use English or Chinese ³ in the magistracies in 1974. ⁴ The same year also saw the implementation of the Official Languages Ordinance, which states that Chinese and English are both official languages in Hong Kong, ⁵ setting the stage for greater use of Chinese in the legal field. Since then, the percentage of Chinese hearings in the lower courts has been on the rise. ⁶ The return of the sovereignty of Hong Kong to the People’s Republic of China was a huge impetus to the process of legal bilingualism. The Basic Law of Hong Kong promulgated in 1990 provides that the Chinese language is an official language to be used by the government, legislature and judiciary of the Hong Kong Special Administrative Region (SAR), and thus reconfirms the status of Chinese. ⁷ Hence, the need to speed up the use of Chinese in the legal profession became even greater. The government started translating local laws which were hitherto all in English into Chinese. ⁸ New laws were drafted and enacted in bilingual versions. ⁹ An English–Chinese Glossary of Legal Terms was compiled by the Department of Justice. ¹⁰ The Chinese language made an emergence in the legal profession.

Although statistics suggest that 80.9 per cent of criminal trials in the magistracies are conducted in Chinese in 2011, ¹¹ this does not reflect reality. Chinese still struggles to secure its place as a courtroom language because the judges and counsel often resort to English in the Chinese courtroom. ¹² Hence, a standard form of the Chinese language for the courtrooms is yet to develop. The Honourable (Hon) Madam Justice Chu, an appellate court judge, noted 20 years ago that the development of a new courtroom language would be a difficult process:

One may think that as long as all the people in court speak and understand Cantonese (i.e., the spoken form of Chinese), it is a simple matter for the bench, the advocates and the parties to communicate in Cantonese. That is not quite true… It is also a matter which judicial officers and advocates alike will have to give serious thoughts to, if Chinese is to be used at more or at all levels of the court system. ¹³

Behind all the undesirable instances of mixing English with Chinese in the courtrooms, the mistaken presumption that native speakers of a language are competent users of the language in every possible context seems to be at work. For all its popularity, Chinese as a spoken language was not taught in schools as part of the formal curriculum until the 1990s. Examinations on oral Chinese were introduced in the Hong Kong public examinations in 1994. ¹⁴ Hence, legal professionals over 40 years of age have hardly received any formal education for development of their oral Chinese skills at both the primary and secondary levels of school as well as at law schools where English is the medium of instruction. Those who studied law in English-speaking countries face a further disadvantage due to their lack of Chinese-speaking skills. If legal practitioners do not have adequate resources at their disposal to solve their problems concerning the Chinese language, they would only rely on their linguistic intuition, and such intuition could be misguided.

Another reason why the issue has not been resolved is that the Judiciary Administration does not have a rigid policy of ‘using Chinese only in a Chinese courtroom’. The Official Languages Ordinance states that judges and counsel may use either or both of the official languages in whole or in any part of the proceedings as they think fit. ¹⁵ The High Court Civil Procedure (Use of Language) Rules further states that a judge possesses discretion to decide on the use of either or both of the official languages at any stage of the proceedings. ¹⁶ This freedom of choice concerning the language of the trial inevitably encourages code-mixing. I will argue that only one language should be used at the trials of the same case. The first reason in support of this argument is that it is generally considered more appropriate to use only one language in a formal context, which also explains why separate English and Chinese versions are prepared on such occasions for delivery by government officials. ¹⁷ Further, this helps us understand why young people in Hong Kong practise code-mixing on informal occasions with Cantonese as the matrix language. ¹⁸ The second reason behind the argument is that we need to ensure the highest level of accessibility to legal proceedings for the public, especially the unrepresented parties, because their interests are at stake in these proceedings.

Another argument against code-mixing is that the High Court Civil Procedure (Use of Languages) Rules also stipulates that documents for any proceedings shall be in either of the official languages and a judge may, if necessary, order for these documents to be translated into the other official language, ¹⁹ ruling out the possibility of the usage of a mixed-code in the written documents of a trial. It is interesting to note that the same is not required for verbal submissions, a policy that has also been questioned by a law professor. ²⁰

The problem of code-mixing is not unique to Hong Kong. It is also prevalent in Indian courts that use English as the trial language. Studies have found that in the state of Kerala where the local language is Malayalam, lawyers representing both the parties choose to be bilingual, but no one finds this odd or objectionable. ²¹ But in some Canadian courts, judges and arbitrators sometimes object to the mixing of English and the local language by the litigants. ²² It should be noted, however, that in both cases, the trial participants are speakers of the two languages involved. The case of Hong Kong is different because, as described later, some mixed English terms might not be understood by the trial participants, notably the unrepresented defendant, who may be then disadvantaged.

According to a study, 12 sovereign states such as Canada, Finland, Belgium and Singapore recognize two or more official languages, while official bilingualism exists in 21 non-sovereign states, including Fribourg, Puerto Rico and Hong Kong. ²³ Interpretation facilities are provided in the courtrooms of these states in order to ensure the fairness of a trial. ²⁴ But in a so-called Chinese courtroom in Hong Kong, where Chinese utterances are mixed with English words, there is no interpreter to assist the defendant because a mixed-code court is currently regarded as a monolingual court. This situation therefore, to a certain extent, deprives a monolingual person of his legal right to a fair trial.

In view of the social significance of Chinese as a trial language, this article illustrates and analyzes this under-researched phenomenon with the help of a court case, interviews with judges, lawyers, a law teacher and law students, as well as an examination of the law school curricula, with the aim of contributing to the design of a better training programme, which in turn would help the development of Chinese as a trial language. This will help address the legal language rights of the people of Hong Kong, the importance of which was stressed upon by the former government law draftsman:

[I]f the law is not expressed in a language that people do understand, how can you expect the public to understand the law, know their rights and obligations, and be law-abiding citizens? This language barrier was an impediment to the popularization of the rule of law and good civic education. It only helped to create an unfair situation. ²⁵

Legal language rights signify easy access to the law, including its written and spoken form, for the general public, in their mother tongue. This article focuses on the spoken genre because of its spontaneous nature, the necessity of its immediate comprehension and its consequent importance for all stakeholders in court. The site for the research is the magistracies because magistrates ²⁶ are the forerunners in the use of Chinese as a trial language, having accumulated greater practical experience in the same than judges of other courts. It is believed, therefore, that the problems they grapple with will be more deep-rooted and revealing. Moreover, magistracies handle a majority of the cases in Hong Kong and the magistrates’ speech is more relevant to the general public.

Due to the sensitive nature or undervaluation of the research topic, the Judiciary Administration and most of the lawyers invited did not want to participate in it readily, ²⁷ thereby limiting the scope of the research. As a result, the sampling size of the research is small. At the same time, it is believed that the findings represent broader anecdotal instances from the legal sector. At the least, they provide a glimpse into an important legal-linguistic field, which has hitherto attracted little attention and is under-researched with little literature available on it. ²⁸

Discourse on English in Chinese Courtrooms

From 2006 to 2010, a research on legal discourse was conducted in the Tsuen Wan and Shatin Magistracies, Hong Kong, and it was found that code-mixing was commonplace in the courtrooms. Of the 200 trials involving 12 magistrates and more than 100 counsels, it was observed that about one-third featured a considerable usage of English words in the legal professionals’ Chinese utterances. ²⁹ This kind of intra-sentential shift of codes is referred to as code-mixing, which is different from code-switching normally defined as ‘alternating between two or more languages usually in response to factors associated with the social situation’. ³⁰ Some linguists simply call this intra-sentential switch ‘insertion’. ³¹ The following extract from the transcript of a magistracy’s case shows how English words are inserted into a supposedly Chinese discourse, and thus hinder the use of Chinese at the trial. The translation is mine and the embedded English words are bracketed:

JUDGE: Of course, and that is why you should not place it there. I am talking about the [prosecution case], and the [defence] has a [legitimate objection], and that is the [prejudicial effect outweighs] the [probative value]. If we as professional judges see it, we may [exclude] it. If there is a [conviction], we [ignore] it. But the [jury] cannot do this. This is a very dangerous [item]. We need to see how you handle it. But I can’t [exclude] it at this stage [until] the [defence raises] it when the time comes. Yet I have to clarify with you at this stage on the [value] it has. That’s all.

MS NG: I understand, my worship. As I just said, it proves that the defence has [connection] with the realty.

JUDGE: The [connection] is not very [relevant] to this case. Why? Because [connection] is a matter of the company. As long as you do your own job, it has nothing to do with you. Even if the [list] of the company has [extended], he may not know it. Now someone comes in, and the [prosecution case] says that he, though definitely a [walk-in] client, is introduced by the realty.

…

JUDGE: I said it can be placed in [rebuttal].

MR KWAN: But now I see nothing to put in [rebuttal].

JUDGE: I mean it can be put in [rebuttal], not…

MR KWAN: I know. But now I do not know what can be put in [rebuttal]. ³²

While the transcript cannot be said to be representative of all cases brought before the magistrates, it reveals that there is room for improvement in the use of the Chinese language in a so-called Chinese courtroom. It shows that two types of English expressions are used by judges and counsel in court: ‘legal expressions’ and ‘ordinary expressions’. ‘Legal expressions’ such as ‘rebuttal’ and ‘probative value’ are aspects of the legal language, relatively hard for non-professionals to comprehend. It might be argued that even though the use of English legal lexicon makes the legal discourse more precise and rich, it fails to do justice to the rich resources available in the matrix language, a point that has been discussed in greater depth later. ‘Ordinary expressions’, such as, ‘delete’, ‘payment’, ‘item’, ‘until’, ‘conduct’, ‘answer’ and ‘objection’ are commonly used by people in Hong Kong in all walks of life and so are easily understood by them. ³³ But what looks like an ordinary expression, such as ‘meet the case’ and ‘in favour’, could be incomprehensible to the average person in the context of a courtroom. ³⁴ Their equivalents, however, are easy to find or construct in Chinese. I will therefore argue, following Ehsan and Abdul Aziz and Weinreich, that where equivalents of the foreign words are readily available in the matrix language, those equivalents should be used. ³⁵

Chinese Language Training Provided by the Judiciary Administration

Since the Judiciary Administration does not have the policy of ‘using Chinese only in a Chinese courtroom’, it is only natural that it has not provided any training on oral Chinese for judicial officers who need to use Chinese in court. It only organizes one or two writing courses in Chinese for judicial officers every year. ³⁶ Even if oral Chinese training is provided, there is currently no mechanism in place to monitor the conduct and results of the training. As in other common law jurisdictions, any irregularities reported in the court of first instance, including language issues, will be handled by the appellate court. Moreover, in order to safeguard the independence of the judiciary, the current policy lays down that a judge has unquestionable rights to decide on the language to be used in a trial.

The imbalanced amount of importance attached to the written and spoken form of law by the authorities is understandable as a judgment is the ‘final product of a trial’, to be read by the public and subject to closer scrutiny. ³⁷ However, considering verbal communication between the parties in court to be a negligible process is a misconception. The truth is that it is the verbal communication that is legally significant. Whenever there is an appeal on conviction, appellate judges have to refer to the actual conversation to see if justice has been done. Thus, the importance of using comprehensible and accurate Chinese in court is beyond question. But since the adoption of Chinese as a trial language in 1974, there has not been a single case where an appellate judge has criticized the judge of the first instance for code-mixing, reflecting how judges of higher courts do not consider code-mixing to be a worthy issue. The use of mixed-code in the lower courts is therefore condoned if not reinforced, and a vicious cycle is so created.

Although the Judiciary Administration has so far published three books on English judgments in criminal, land and employment cases with Chinese translations, ³⁸ important areas like human rights law and intellectual property law have not yet been covered. Given that it has been almost 10 years since the last title was published, a comprehensive source of reference for Chinese judgments still seems to be a distant dream. As for the aforesaid English–Chinese Glossary of Legal Terms, ³⁹ it provides legal jargon from statutes only. For instance, the term ‘probative’ is not included and hence, the book’s contribution to the development of courtroom Chinese is limited. As discussed later, the compilation of a corpus of Chinese set phrases commonly used in court may prove to be helpful.

Judges’ Views

Participation by judges is an essential element of the research conducted for this article. Although requests to interview judges were declined by the Judiciary Administration, two judges, personally known to the author, have willingly provided their opinion on the issue. These two judges are a magistrate and a high court judge. Neither of them has been trained in the use of Chinese as a trial language but they have been using Chinese in court for over 20 years. Their views shed some light on how some insiders feel about the current issues surrounding the courtroom language.

The magistrate said that the primary concern of a judge regarding the use of Chinese in the legal field is on judgment writing rather than its use as a trial language. He said:

I found it time assuming in writing judgment in Chinese as I have to think about the Chinese sentence structure and style and so forth. This is the most difficult part for me in using Chinese as a trial language. Whether the trial itself is conducted purely in Chinese or not is trivial. As long as the judgment is written in Chinese, the purpose of using Chinese in court is served.

This remark reflects the ideology that legal bilingualism is focused on the written rather than the verbal form. The high court judge, however, held a different view. He emphasized that it is not appropriate for judges to code-mix English with Chinese in court, adding that it should be either all English or all Chinese. He said:

The only acceptable mix is that the judge gives the Chinese version followed by its English version for the sake of clarity when the judge is not sure if the Chinese version is correct. Otherwise the laymen in the courtroom, in particular the defendant, will not be able to know what is going on. It is important that the defendant is involved, that he knows what the counsel and the judge are talking about because his interest is at stake.

The opposing views of the two judges arguably originate from the different priorities they set for the exercise of the law. The magistrate focuses on the outcomes of the proceedings, while the other judge focuses on the due procedures associated with the meting out of justice. However, they commonly agreed that the current situation could be problematic if there is any complaint and that most people do not consider the trial language as a serious issue because the conflicting parties are mostly represented.

While considering a possible way to improve the present situation, both judges agreed that there is one dimension that has been overlooked by the Judiciary Administration: the appointment of judges does not take into account the knowledge of the Chinese language possessed by the candidates. I would argue that as the availability of judges competent in using Chinese in court is essential for the development of a fully bilingual legal system, ⁴⁰ an assessment mechanism should be established to test the judges’ competence in the usage of Chinese, a point that has been discussed later.

The two judges also agreed on the point that the mass media, through which a lot of code-mixed materials reach the public, has an adverse influence on the development of courtroom Chinese. They said that since it is common for people to talk in mixed-code in the local mass media, it is hardly surprising that the same practise is repeated in court. This echoes the above-mentioned views of the Hon Madam Justice Chu. ⁴¹ One way to promote courtroom Chinese, both judges concurred, is that judges of the lower courts read and learn from the speeches of high court judges ⁴² so as to improve and unify the judges’ expressions in court. This modelled form of training has also been recommended in the planning section later.

Lawyers’ Views

Of the 12 lawyers invited, only two lawyers agreed to be interviewed. ⁴³ They have almost 20 years of experience in using Chinese in court. Like the judges, they have not received any formal courtroom Chinese training, but strongly support the use of Chinese in court. One lawyer said:

Since the use of Chinese facilitates the clarification of facts at trial, it enhances effectiveness and saves time. When all parties in court can express in their mother tongue, it greatly reduces misunderstanding and errors in expression. I feel more relaxed when I use Chinese as well since I am confident that I will not misinterpret what the others say. But there are times when I do not know how to put a common law term in Chinese and have to use English.

The last remark reiterates the comment mentioned earlier about the need for a corpus compiling courtroom Chinese to help lawyers adapt to the shift in language. Both lawyers agreed that Chinese as a trial language is at a premature stage in Hong Kong as a lot of judges and most of the senior counsel are over 50 years old and so find it difficult to start practising Chinese in court. However, findings from my fieldwork suggest that young counsels also lack knowledge of courtroom Chinese. In one of the cases observed, a young defence counsel asked the prosecutor how the common law concept of ‘aggressiveness’ could be used in Chinese, but the prosecutor could not help with the same, so the counsel kept using the English term ‘aggressiveness’ throughout the trial. ⁴⁴ When I quoted the case for the interviewees’ comment, both of them agreed that interest of litigants will be compromised if they do not understand the embedded English term. Like judges, they agreed that the Judiciary Administration should give more exemplars of proper use of Chinese at high court trials for legal professionals to learn from, along with the organization of seminars and talks. They also suggested that legal professional bodies should conduct more courtroom Chinese trainings for their members. One lawyer commented:

Training is important for legal practitioners who are used to using English but now have to switch to Chinese in court. We are legal experts only, not language experts. If you want me to express common law, which is to me deeply entrenched in English, in another language, it is like learning the whole law again. You do not know how difficult it can be.

Hence, the two interviewees are well aware of difficulties associated with the development of a bilingual court system. In comparison with the two judges, they are more proactive in promoting Chinese as a courtroom language. This is probably because they are frequently in direct contact with the litigants and so have a better understanding of the difficulties faced by their clients in a mixed-code court.

Law School Curricula and Law Students’ Views

If courtroom Chinese training is indispensable for judges and lawyers, the starting point for this training should be the law school. There are three lawyer training universities in Hong Kong. ⁴⁵ To find out the availability and extent of Chinese training in their curricula, the lecture notes provided by law students and the module outlines on the schools’ websites were examined. Also, law teacher and seven law school students from the University of Hong Kong and the City University of Hong Kong were interviewed. It was found that although law schools offer courses in legal Chinese, most of them are not compulsory courses, and they do not focus on the use of oral Chinese in court. Even the oral skills training course referred to as ‘Mooting’ includes oral English components only. ⁴⁶

The law faculty of the University of Hong Kong stressed that good English ability is one of its admission criteria. ⁴⁷ Although the university offers courses on ‘Legal Translation’ and ‘Use of Chinese in Law’, it trains the students in writing skills only. A student also said that the only course that includes an oral Chinese component is ‘Practical Chinese Language for Law Students’, but its content and assignments do not lay any actual emphasis on oral Chinese. The course covers fundamental principles of communication, and specifically the use of syllogisms, key words, audio-visual equipment, manipulation of voice and so forth. In its lecture notes, there is only one remark on courtroom Chinese, namely, ‘avoid using a lot of verbal particles’. The design of the assignments also reflects the preference accorded to written Chinese. Three out of the four assignments are on written Chinese and the only assignment with an oral component is not in the context of a legal trial. ⁴⁸ The course outline also states that the emphasis of the course is on the written form of the Chinese legal language. ⁴⁹ Although the course was revamped in 2012, its area of emphasis has not changed. Oral skills are not included as part of the assessment components. ⁵⁰ Such an arrangement is not conducive to the development of oral Chinese skills in court.

Interviewees from the other law school also said that there are little elements of oral Chinese in their academics. One student’s view reveals this inadequacy:

There is only one course called ‘Legal Chinese’ which requires students to write Chinese and do individual and group oral presentation. But the focus of the course in on written Chinese such as syntax and writing different kinds of documents, and the oral presentation last for no more than ten minutes. Other courses are delivered and students respond in English. And we have English mooting only.

It has been mentioned earlier that very often there is a mistaken presumption that native speakers of a language are competent users of the language in every possible context and this may be one of the reasons why no oral Chinese training is offered at these universities. A student also disproved this presumption with her experience at the interview:

The common thinking that law students are good speakers is a misunderstanding. There are about 50 students in my class. Only 20 to 30 percent can be said to be capable of using Chinese competently. Almost all of them do not show enthusiasm in speaking up in class, and a lot of them stammer in oral presentation.

She also admitted that she is unsatisfied with the standard of Chinese known to her:

I am also facing problems with Chinese. My Chinese is deteriorating because I don’t have a lot of practice in it. When I have time I read English books rather than Chinese books as the emphasis of the course is in English.

Another student said that she faces the same problem, adding that she does not know how to express some English legal concepts in Chinese.

The interviewees’ opinions represent their worries over their competency in using Chinese in court and reflect their demand for more Chinese training in law schools. To ensure that future legal professionals have the necessary skills to use the native language in the Chinese courtroom, the law school curricula should be revamped.

Planning for Courtroom Chinese Training

The following approaches for courtroom Chinese training are suggested, based on the interviews of legal professionals and law students, as well as my experience as a legal language teacher. They should cater to the needs of both law students as well as practising lawyers.

Further Discussion

Although the use of Chinese in the magistracies has been in place for 40 years, some people may still have doubts over its feasibility, that is, whether Chinese can be as effective as English as a common law language and, if it can, why Chinese is still not fully used, at least in the magistracies, after decades of practice. Apart from what is postulated here, further discussion on these questions is necessary to make the research complete.

On the query of ‘can the common law be practised in Chinese without English?’, as a researcher pointed out, the preference of using English rather than Chinese by counsel and judges is not that there are no equivalents of legal terms in Chinese, but that the legal professionals mostly ‘do not talk law in Chinese’. ⁵³ Thus, I would argue, the linguistic choice is a matter of occupational norm rather than an intrinsic limitation of Chinese as a legal language. In fact, legal practitioners and scholars have written at both theoretical and pragmatic levels to argue for the translatability of the common law into Chinese. ⁵⁴ Researchers also reported that Chinese can completely take over the job of legal argumentation without the assistance of English once the legal terms of art in Chinese have become standardized through repeated use. ⁵⁵ During the interviews with judges and lawyers, no one has any doubt about the practicability of using Chinese in the common law context. They have expressed the difficulties the legal profession has to face, but they can be overcome given training and time.

Theoretically, I would further argue that in the context of the Hong Kong court system, the dominant ideology of the legal professionals controls the discursive practices in the courtrooms to maintain its dominance. This process keeps repeating, reinforcing and naturalizing itself. As a sociolinguist described, every established order tends to produce the naturalization of its own arbitrariness. ⁵⁶ The use of English, which represents power and prestige through colonial rule, is the legacy of such a dominant ideology of legal professionals in Hong Kong. With the change in sovereignty of Hong Kong, the heightened awareness of the legal language rights among the Chinese population and the subsequent emergence of Chinese as a courtroom language, a power struggle has begun. Giving up English symbolizes the loss of at least part of the social power the legal professionals have long been enjoying, upsetting the established social hierarchy. One could imagine that if Chinese becomes the dominant language of the law, legal professionals, I would argue, will be less highly placed in society. In this sense, the hegemonic struggle in discourse affects not only the ideology of the institution where it takes place but that of the social formation. ⁵⁷ This may partly explain why Chinese as a medium of trial is still resisted by some legal professionals. Hence, the development of courtroom Chinese is not supposed to be an easy one.

Conclusion

This article aims to highlight the significance of courtroom Chinese as a medium of interaction between the participants of a trial. The use of Chinese in court is essential to make legal proceedings more accessible to the public. However, the use of English expressions could be a stumbling block to local people’s understanding of the courtroom discourse, particularly for defendants who appear in person and have no legal consultants to turn to. As a result, some participants may be linguistically disempowered in the courtroom, casting doubts on the administration of justice. The discussion attempts to throw light on this issue and suggests different approaches towards the training of legal professionals so that they can live up to the challenge posed by legal language rights of the people of Hong Kong, awareness regarding which has now been generated. The problems concerning the use of Chinese in trials will only assume more prominence in the days to come. Therefore, everyone will extract benefit from a speedy resolution of this problem by the stakeholders.