Footnotes

1	Section 10B of Cap. 1 was modelled on Article 33 of the 1969 Vienna Convention on the Law of Treaties ("the Convention"). This paper makes reference mainly to the discussion on the drafting and interpretation of that Article in chapters 3 and 4 of Mala Tabory, Multilingualism in International Law and Institutions (Sijthoff & Noordhoff, 1980). Another similar provision can be found in the previous section 8(2) of the Official Languages Act of Canada which was repealed in 1988. That section was worded differently from our section 10B, and sought also to reconcile the underlying common law and civil law systems in different parts of Canada (see generally Michael Beaupré, Interpreting Bilingual Legislation (Carswell, 1986, 2nd edn) for the Canadian jurisprudence developed before and after the passage of section 8(2) of their Official Languages Act).
2	The Queen v Tam Yuk-ha (MA No. 933 of 1996).
3	cf The Queen v Tam Yuk-ha (note 2 above). In this case, the alleged offences were said to have taken place on 5th and 18th of December 1995 respectively. The Chinese text of the legislation in issue, the Food Business (Urban Council) By-laws (Cap. 132 sub. leg.), was declared authentic by an Order of the Governor in Council made on 16 April 1996 and published in the Gazette on 26 April 1996. In the subsequent case of The HKSAR v Tam Yuk Ha (MA No. 1385 of 1996) involving the same provision, the alleged offence happened on 5th February 1996. The court took the view that the authenticated Chinese version should not be invoked as an authentic language text as it had not come into existence on the date of the alleged offence.
4	This paper is unable to reproduce exhaustively the current juridical system governing the interpretation of legislation, which comprises various binding rules, principles derived from general legal policy, presumptions of the legislative intent and linguistic canons of construction. Reference can be made to F. A. R. Bennion, Statutory Interpretation: A Code (Butterworths, 1997, 3rd edn) and other authoritative texts on this subject.
5	Bennion (note 4 above), Code, Division Two.
6	Bennion (note 4 above), Code, Part XXVII.
7	It is submitted that the court should not, on the principle non liquet (it is not clear), decline to rule on the meaning of a Chinese term (see Bennion (note 4 above), p.14).
8	Bennion (note 4 above), p.947.
9	Peter Wesley-Smith, The Sources of Hong Kong Law (Hong Kong University Press, 1994), pp. 216-7.
10	For an informed construction, see Bennion (note 4 above), Code, Parts XIII and XIV.
11	The Queen v Tse Hing San and others (MA No. 1395 of 1996).
12	Tabory (note 1 above), pp.176 and 195 : Article 33(3)(the equivalent provision of our section 10B(2)) in the Convention is said to safeguard the equal authority of all the authentic texts of multilingual treaties in interpretation by stating the presumption that the terms of the treaty are intended to have the same meaning in each text.
13	Bennion (note 4 above), Code, Part VII.
14	Tabory (note 1 above), pp.198, 201 and 202: it is suggested that upon discovery of an unclear passage, a textual divergence or a difference of opinion, the presumption in Article 33(3) of the Convention ceases to hold and that it is uncertain whether, and to what extent this presumption continues to provide guidance in those circumstances. It is therefore submitted that section 10B(2) itself should not be construed as a prescription for adopting the highest common meaning to both language texts.
15	Tabory (note 1 above) pp.172, 198 and 199: Although the importance of comparing different texts in the process of interpretation was recognised during the drafting process of Article 33 of the Convention, it was not included in the final version as a general principle of treaty interpretation. It was felt that to grant text comparison the status of a canon of interpretation would imply that it was impossible to rely on a single text to interpret a multilingual treaty.
16	Tabory (note 1 above), pp.199 and 200.
17	Note 4 above.
18	Peter Wesley-Smith, An Introduction to the Hong Kong Legal System (OUP, 2nd edn), p.77 ff.
19	Wesley-Smith, (note 9 above), see chapter 14 for a review of the various cases in which section 19 of Cap. 1 has been discussed.
20	Wesley-Smith (note 9 above), pp.240-1: citing Clayton [1973] 2 NZLR 211; Peter Klauser v R [1968] HKLR 201 and Kong Kam-pui v R [1973] HKLR 102.
21	Wesley-Smith (note 9 above), pp.233-4: discussing Sin Poh Amalgamated (Hong Kong) Ltd v Attorney General [1963] HKLR 77, [1964] HKLR 879, [1965] WLR 64. Three principles for establishing the contrary intention have been identified: that the person who alleges a contrary intention has the burden of proof, that the burden of proof needs only to be discharged on the balance of probabilities, and that a contrary intention should be discovered from the substance and tenor of the legislation as a whole. As such, it is submitted that the interpretative rules contained in section 10B and section 19 of Cap. 1, insofar as they ultimately fall back on the purpose and intent of the entire statute, should not be circularly displaced by virtue of section 2(1) of Cap. 1.
22	See generally Glanville Williams, Learning the Law (London : Stevens 11th edn) and Wesley-Smith (note 18 above). The Mischief Rule refers to the legal position before the statute was passed and the mischief that the statute was intended to cure. The statute is then construed in such a way as to suppress the mischief and to advance the remedy. The Literal Rule applies words of a statute in their natural and ordinary sense with nothing added and nothing taken away, even if an inexpedient, unjust or immoral outcome occurs, i.e. the court can neither extend the statute to a casus omissus [an omitted case which should have been, but has not been, provided for in the statute] nor curtail it by leaving out a casus male inclusus [a case that the statute literally includes, though it should not have]. The Golden Rule so construes a statute as to avoid absurdity or anomalies by adopting a secondary (or less usual) meaning which is also linguistically possible in order to produce a reasonable result. Sometimes, a judge may read in words which he considers to be necessarily implied by words already in the statute. He may even, to a limited extent, alter or ignore statutory words for reconciling an unintelligible provision with the rest of the text (for example, judges have occasionally corrected an "and" in a statute when it meant "or").
23	Wesley-Smith (note 9 above), p.238: citing Lee Pui-wah v Lam Wing-chung (1981) Vic DCt, CJA No.6538 of 1980.
24	Wesley-Smith (note 18 above), p.80.
25	see Bennion (note 4 above) for a systematic approach of statutory interpretation.
26	Tabory (note 1 above), p.174: there has been objections during the drafting of Article 33(4) of the Convention to a double reference to "object and purpose" as it has already appeared in the general rule of interpretation. The repetition of the element of object and purpose can be seen as a warning against abandoning the consistent regard for it even in the second step of reconciliation, when the other elements of the general rules of interpretation have been exhausted under step one.
27	Bennion (note 4 above), p.355; see also p.356 for the four broad reasons justifying (or even positively requiring) the strained construction of an enactment : (1) a repugnance between the words of the enactment and those of some other enactment; (2) outcome of a literal construction so undesirable that the legislature cannot have intended it; (3) an error in the text which plainly falsifies the legislative intent; (4) the passage of time since the enactment was originally drafted.
28	Tabory (note 1 above), p.200: The International Law Commission in its Commentary on the 1966 draft articles on the law of treaties, discourages any possible departure from the principle of the unity of the treaty and equality of the texts, rejecting even the principle of restrictive interpretation which incorporates the element common to all texts.
29	Beaupré (note 1 above), pp.21-28: citing the cases Food Machinery Corp. v Registrar of Trade Marks [1946] 2 D.L.R. 258 (Ex. Ct.) and Jones and Maheux v Gamache (1968), 7 D.L.R. (3d) 316 (S.C.C.). At p.25, the former case was summarised to the effect that it is not enough to say, if one version is clear while the other is unclear, that the clear version shall be preferred and applied ... the clear version must be in harmony with a reasonable construction of the unclear one. But what is reasonable can only be determined by reference to the whole Act. Both versions, in such a case, must be compared and, where possible, justified; .... If that is impossible, the context naturally rules the inevitable choice of the version to be preferred. At p.28, it was concluded from the latter case that the search for 'context' is still at the root of even a bilingual approach to the interpretation of legislation.
30	Chan Fung Lan v Lai Wai Chuen (MP No. 4210 of 1996).
31	Tabory (note 1 above), pp.172-3: There has been a view during the drafting of the Convention that if a meaning reconciling divergent multilingual texts could not be found, the language to be considered should be that in which the treaty had been drawn up. Another view however held that while reference may be made during interpretation to the preparatory works and to the circumstances under which the treaty was concluded, one should not go so far as to place a premium on the version drafted in a language which might have been used for purely fortuitous reasons.
32	Wesley-Smith (note 9 above), chapter 15 on "Resort to Hansard". See also the "Report on Extrinsic Materials as an Aid to Statutory Interpretation" prepared by the Law Reform Commission of Hong Kong in March 1997.
33	Wesley-Smith (note 9 above), p.240, also citing Calvert v Mackenzie [1937] NZLR 966. One of the interpretative criteria is that a person should not be penalized under a doubtful law. Still, it is necessary that all relevant factors be considered and weighed against one another in the light of the context of the statute in order to arrive at a fair construction.