香港中英法律文本-仍待商榷的「同等真確」 An Authentic Principle yet to be Authenticated: The Equal Legal Authenticity of


序言: 香港法律中英文本「同等真確」之法定原則

自殖民年代,香港一直沿用普通法,縱使回歸後,基本法亦保障原有法律制度依舊不變。[1]普通法始於英國,傳統固以英語運作,但香港人的母語是中文,早在英殖時期已不斷有爭取中文為法定語文的運動發生,直至1989年,香港首條同時以中、英文寫成和頒佈的法例才正式面世。[2]雖然根據基本法第九條,中、英文皆為香港的法律語文,[3]惟若同一條法例中、英文版本意義不吻合時,法庭該如何應對呢?這議題曾引發甚囂塵上的爭論,卻迄未出現清晰劃一的答案。[4]

本文有兩個重點──第一,討論在法例中英版本存在歧義時,法庭理應如何釋疑,並會參照現存的案例和法規,探討在過去案件中法庭處理法例中英文本歧義所採取的手段是否恰當;第二,透過分析部份法律界人仕對中文作為普通法語文的主要批評,論述中文是否適合作為香港之法定語文。最後本文會以外國例子為鑒,概括若在同一司法管轄區內,多種語文在法律上「同等真確」,究竟有何意義和影響。

[1]基本法第八條訂明:「香港原有法律,即普通法、衡平法、條例、附屬立法和習慣法,除同本法相抵觸或經香港特別行政區的立法機關作出修改者外,予以保留」。

[2]在1989年4月制定的《證券及期貨事務監察委員會條例》(第24章)是香港第一條雙語條例。

[3]基本法第九條訂明:「香港特別行政區的行政機關、立法機關和司法機關,除使用中文外,還可使用英文,英文也是正式語文」。

[4] Cheung, Eric T. M. "Bilingualism: Where Are We Heading?" In Reform of the Civil Process in Hong Kong. Butterworths Asia, 1999: 241-253.

ABSTRACT:

The Hong Kong Basic Law and a number of ordinances enshrine Hong Kong as a bilingual jurisdiction where both Chinese and English enjoy equal status as its official language. As a result, both Chinese and English versions of promulgated statutes must be treated with equal authenticity. This fundamental doctrine is known as the “Equal Authenticity Principle”. However, difficulties arise when the Chinese and English versions of the same statute convey different meanings. Such discrepancy can become a central issue at trial. Thus, it is important to discern how the Hong Kong Courts deal with such dilemma.

From my research, it appears that there is an absent of a uniform approach to resolution in practice. Various precedents suggest that judges often resolve this dire strait by giving a predestinated priority to the English versions, by holding the Chinese version is as no more than products of ‘translation’. In my view, viewing Chinese texts as a mere subsidiary rather than examining the terms on par with their English counterparts is a trade-off solution that explicitly contravenes the “Equal Authenticity Principle”.

My aim in this essay is to (1) clarify the current state of law in this area of law, and to (2) formulate a proper approach of interpreting a statute when its Chinese and English versions are incompatible with each other. To start with, the paper will discuss cases that embarked on the controversies about the authenticity of Chinese versus English versions of statutes. I have found that most judgments are woven with a fallible line of reasoning that is repugnant to the Equal Authenticity Principle. I then gathered criticisms by legal practitioners against the capability of the Chinese language to be a reliable common law language. I shall then expound with a delicate linguistic analysis that all the oppositions can hardly stand as they are generally based on a misconception of the relationship between languages and law. By using examples from the United Kingdom, Canada and the European Union, I shall illustrate the importance as well as the benefits for Hong Kong to adopt multilingualism, as well as its mother tongue (Chinese) for its legal languages. Finally, I propound that Hong Kong Courts should not prefer the English versions of a statute because it takes effect on an earlier date than their Chinese equivalents. In resolving discrepancies, the Courts should resort to the ‘purposive approach’ without undermining the effect of either versions of the law. Nevertheless, the Hong Kong Courts may also request the Legislative Council to amend the statute in question so as to achieve conformity. The institutional purpose on the principle of equal legal authenticity in both Chinese and English is to strengthen our understanding of the law and to broaden our access to justice. My proposal shall strengthen the original purpose by safeguarding the principle by true authentication.

(Please click document image of top left corner to download full paper in pdf)


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