Bilingual Laws Information System

A paper Discussing Cases Where the Two Language Texts
of an Enactment are Alleged to Be Different

[This document is provided by the Law Drafting Division of the Department of Justice]



1. Background of bilingual legislation
1.1 English and Chinese were established as both the official languages of Hong Kong for the purposes of communication between the Government and the general public with the passage of the Official Languages Ordinance (Cap. 5) in 1974. However, until 1987, Cap. 5 had only provided for our statute law to be enacted in the English language.
1.2 The need for the production of an authentic Chinese version of Hong Kong's written law was officially brought about by the Sino-British Joint Declaration on the Question of Hong Kong signed in 1984. Section I of Annex I to the Joint Declaration provides that "in addition to Chinese, English may also be used in organs of government and in the courts in the Hong Kong Special Administrative Region".
1.3 In 1986, the Hong Kong Royal Instructions, a set of former constitutional instruments, were amended to allow laws to be enacted in English or Chinese. This was followed by the amendments to Cap. 5 and to the Interpretation and General Clauses Ordinance (Cap. 1) in 1987. The Basic Law of the HKSAR promulgated in 1990 also provides, in Article 9, that in addition to the Chinese language, English may also be used as an official language by the executive authorities, legislature and judiciary of the HKSAR. All those steps paved the way for the implementation of bilingual legislation in Hong Kong.
1.4 Section 4(1) of the Official Languages Ordinance (Cap. 5) now provides that all ordinances shall, subject to certain exceptions, be enacted and published in both official languages. The Law Drafting Division of the Department of Justice (formerly known as the Legal Department or the Attorney General's Chambers) is responsible for preparing the two language texts of all ordinances and subsidiary legislation introduced by the Government. The first bilingual Ordinance is the Securities and Futures Commission Ordinance (Cap. 24) enacted in April 1989.
1.5 Apart from drawing up new legislation in bilingual versions, the Law Drafting Division also completed, in May 1997, the preparation of Chinese texts for all existing statutes originally enacted in English only. Those Chinese texts were declared authentic under section 4B of Cap. 5 by the former Governor in Council after consultation with the Bilingual Laws Advisory Committee. The orders declaring the authentic Chinese texts had been laid on the table of the former Legislative Council for negative approval under section 34 of Cap. 1.
2 Status of two texts of a bilingual ordinance
2.1 In 1987, there was inserted into the Interpretation and General Clauses Ordinance (Cap. 1) a new Part IIA on the "General Provisions as to Laws in Both Official Languages". The principal provision in that Part is section 10B, which lays down the general rule on construction of bilingual statutes. 1
2.2 Section 10B(1) states the fundamental principle of equality between the two language versions of our laws. It provides that both language texts of an Ordinance shall be equally authentic, and the Ordinance shall be construed accordingly. This means the Chinese text is neither subordinate to, nor a mere translation of, its English counterpart.
2.3 Even in the case of an original monolingual enactment with its Chinese text subsequently declared authentic, although the two versions came into being at different times, they both had gone through the official scrutiny in their respective legislative procedures. Therefore, whether the Chinese text of an Ordinance was enacted simultaneously with the English text, or was later declared authentic, it should be construed in either case as equally valid and authoritative with the English text.
2.4 It is inappropriate to use phrases or expressions that suggest that the English texts enjoy a higher status or the Chinese texts are mere translations. The following table shows some examples.
To be avoided To be used
  • the Chinese translation
  • the expression is translated as ....
  • an error in the Chinese text/incorrect translation
  • the Chinese text/version
  • the Chinese equivalent of the expression is ....
  • a difference of meaning/divergence/discrepancy
2.5 The two authentic texts together make up the legislation. The court and legal representatives are therefore entitled to refer to and rely on both texts of an ordinance, whether the trial is conducted in English or in Chinese or partly in English and partly in Chinese. 2
2.6 That said, attention should be paid to the temporal application of the authentic Chinese text of an enactment if it was originally monolingual. This is where the two language versions of the same statute come into existence or take effect one after the other. The Chinese text of this kind should be regarded as operative from the date of its gazettal. It should not apply retrospectively to factual situations that arise after the commencement of the original English text but before the authentication of the Chinese text. 3
3. Interpreting Bilingual Legislation : General Principles
3.1 Cases that turn on the meaning of words in legislation are not uncommon. Interpreting modern legislation can be complicated and will be more so in a bilingual context. No particular rule of thumb may 'unlock all mysteries'. The courts have over the years developed many rules or criteria for statutory interpretation. These rules 4 should apply to interpreting both language texts, whether or not a discrepancy in meaning between them is alleged. In each case involving construction of legislation, the particular rules and factors that may lead to different possible constructions of the enactment in issue will be gone through in a weigh and balance process, in order to arrive at a construction appropriate for application to the facts of the individual case.
3.2 The object in statutory interpretation is to determine and apply the "legal meaning" of an enactment, i.e., the meaning that conveys the legislative intention. Therefore, legislative intention is said to be the paramount criterion in statutory interpretation and all interpretative rules and principles are the guides to arriving at the legislative intention. 5
3.3 The legislature has generally delegated to the court the duty to provide an ultimate interpretation of the meaning of an enactment intended by the legislators. The question of what an individual word or phrase means in the context of a statute is a matter of law. Even if the legal meaning of a term is uncertain, the court is obliged to take judicial notice of it and must determine its meaning where the decision of the case requires it. 6 Given that both language texts of our statutes are part of the governing law, the court should be seen as no less competent in determining the legal meaning of a term in the Chinese text than one in the English text. 7
3.4 When it comes to a technical non-legal term (i.e., a term other than that of the law prevailing within the court's jurisdiction), which is shown to be intended for use in its technical sense, evidence may be adduced if its meaning is doubtful, whether it is a Chinese or English term. 8
3.5 If a statute contains a term derived from Chinese law and custom, which is one of the sources of our domestic law, the court can similarly take judicial notice of its meaning. Some areas of Chinese law and custom are said to have become common knowledge and may be accepted by the court without proof. Nevertheless, expert evidence has usually been sought for proving Chinese law and custom as if they were foreign law. When handling a case involving aspects of Chinese law and custom, besides looking up judicial precedents on the subject, expert evidence may also be considered if warranted in the circumstances. 9
3.6 Not all plausible arguments on the uncertainty of statutory meaning are justified. There may well be difficulties in comprehending certain passages in a statute. However, once they are penetrated, the text may not truly pose any doubt as to its legal meaning. In bilingual context, it should first be decided, on an informed basis (taking into account, inter alia, the context and legislative history of the statute),10 whether or not there is a 'real' (i.e., substantial as opposed to merely conjectural or fanciful) doubt or conflict as to the legal meaning of the two language texts of the law. Only if there is, will there be a need to proceed to resolve the doubt by applying the rules of bilingual interpretation. 11
4. Presumption of same meaning in bilingual texts
4.1 Section 10B(2) of Cap. 1 presumes the provisions of a statute to have the same meaning in each authentic language text. The two texts are taken to communicate an equivalent message in their own fashion. They are but two expressions of the same intent and together constitute one law embodying a single meaning. Words and expressions in one language should be deemed to bear the same legal effect as their counterparts in the other language of the same legislation. 12
4.2 Statutory interpretation is mainly concerned about the search of the legal meaning of an enactment, and that its legal meaning usually corresponds to its grammatical or literal meaning. It is when the two do not correspond, or when the grammatical meaning is ambiguous and thus causing a doubt in the legal meaning, that the need for statutory interpretation arises. The court will then have to decide whether the words of the enactment should be given a literal or strained construction in arriving at the legal meaning intended by the legislature.13
4.3 In bilingual interpretation, the court has to duplicate this process by construing the two versions of a statute together in order to arrive at a unified legal meaning so that a horizontal equilibrium between both texts can be attained.
4.4 When a real doubt about the single legal meaning of an enactment arises out of a divergence in the grammatical or legal meanings obtained from the two individual texts, the presumption of section 10B(2) becomes insufficient for solving the problem. At this juncture, one has to move on to section 10B(3) to resolve the "discrepancy". Section 10B(2) should not be treated as implying an interpretation that is semantically compatible with the two texts. The version that bears a narrower meaning does not necessarily prevail.14
5. Reconciliation under Section 10B(3)
5.1 Section 10B(3) deals with the case of a difference of meaning disclosed by comparison between the two authentic texts. Section 10B itself does not impose an express legal obligation to consult and compare both texts.15 Although there is no indication at what point in the interpretative process a comparison is to be undertaken, only parallel reading of the two versions can point to the existence of such a difference. In reconciling that difference, one should also ask the court to compare both versions despite the absence of an express statutory obligation to do so.16 Neither one of the versions should be preferred without considering the other.
5.2 Bilingual discrepancies are to be tackled in two steps according to section 10B(3). The rules of statutory interpretation ordinarily applicable should first be invoked to resolve the difference, failing which, the meaning that best reconciles the texts, having regard to the object and purposes of the statute, should be adopted.
5.3 Step One: Recourse to the Rules of Statutory Interpretation Ordinarily Applicable
5.3.1 Section 10B(3) calls for an attempt to resolve the difference by first using the rules of statutory interpretation ordinarily applicable. These rules 17 are voluminous and are partly statutory and partly decisional. 18 A few guiding points are highlighted below.
5.3.2 Basic enough, many terms are expressly defined in the statutes where they appear. Other definitions are found in Cap. 1, which applies generally to all statutes unless the contrary intention appears.
5.3.3 Cap. 1 in fact contains the general statutory interpretative guidelines. Apart from section 10B, there are two other provisions that are particularly relevant to bilingual construction :
  • Section 9

    • Chinese words and expressions in the English text should be construed according to Chinese language and custom. Reciprocally, English words and expressions in the Chinese text should be construed according to English language and custom.

  • Section 10C

    • If an expression of the common law is used in the English text while an analogous expression is used in the corresponding Chinese text, the statute should be construed in accordance with the common law meaning of that expression.
5.3.4 Above all these, section 19 of Cap. 1 sets out the general principles of interpretation: a statute is deemed to be remedial (i.e. to supply defects in the law or give relief to aggrieved parties) and shall receive such a fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the ordinance according to its true intent, meaning and spirit. 19 Although there is no judicial consensus on the meaning and effect of section 19, it is generally contrasted with the traditional rule of strict construction, which allows the benefit of doubt to be granted to the party against whom the statutory provision is to be enforced.
5.3.5 Section 19 reminds a court to so construe a statute as to give effect to the intention of the legislature. This may lead to either a restrictive or a more extensive meaning to the words than a literal interpretation can afford. It can be argued in a meritorious case that section 19 does authorise departure from a strict, literal construction in order to avoid unreasonableness or injustice especially in the light of a clear legislative purpose. 20 Having said before, section 2(1) of Cap. 1 expresses that the application of any provision of Cap.1 to other statutes can be excluded where the contrary intention appears. 21 The applicability of particular construction principles contained in Cap. 1 should therefore be critically examined when interpreting another enactment.
5.3.6 Judges have traditionally recognised three different rules of statutory interpretation: the mischief rule, the literal rule and the golden rule. 22 Recent developments see a fusion of the several traditional rules, bringing about the interpretation of both the letter and the spirit of the law, i.e. the statutory context and the object of the legislation are to be considered altogether so that anomalous decisions will be avoided.
5.3.7 Section 19 of Cap. 1 has been said to 'enshrine' a purposive approach, which is the modern version of the 'mischief rule' in legislative interpretation. 23 Its essence is to take and give effect to the overall purpose if that can be done without straining the words or violating the intention of the legislature. 24 In fact the process of judicial reasoning is so sophisticated that no one cure-all formula is available for the purpose of statutory interpretation. Different interpretative criteria and factors must be sifted and weighed against one another in each individual case. 25
5.4 Step Two: The Meaning that Best Reconciles the Texts
5.4.1 Section 10B(3) of Cap. 1 says if the rules of statutory interpretation ordinarily applicable do not resolve a difference of meaning, then "the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance shall be adopted". This second limb of section 10B(3) is itself open to interpretation.
5.4.2 Section 19 of Cap.1 speaks of an interpretation that will "best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit" whereas section 10B(3) refers to the "object and purposes of the Ordinance". While "intent" and "meaning" relate more specifically to the imputed meaning and effect of the enactment in its application to particular factual situations (i.e. its legal meaning), "purpose" or "object" has an overall reference to the mischief that the enactment is designed to remedy.
5.4.3 Sections 19 and 10B(3) cannot be taken as in conflict because section 19 is of general application and looks for an interpretation that best ensures the attainment of the "object" according to the true "intent, meaning and spirit" of the enactment in question. The second limb of section 10B just reiterates the relevance of the "object" of an enactment when resolving bilingual discrepancy. 26 It is still subject to the approach of "a fair, large and liberal construction" in the light of the legislative intention under section 19.
5.4.4 What can "best reconciles" is a question of degree. A word can be given a strained construction so as to achieve the meaning that best reconciles the two texts even though its grammatical meaning may be stretched or twisted in the process. It should be pointed out that the courts have in fact time and again attached to statutory provisions meanings that by no stretch of the imagination the words are grammatically capable of bearing. It is said that sometimes the arguments against a literal construction are so compelling that even though the words cannot possibly carry another meaning within linguistic rules, they must be given one. 27
5.4.5 The process of reconciliation is different depending on the nature of the alleged divergence and the context of the statute. A direct solution is to adopt a meaning that is shared by both versions where one text is ambiguous and the other is plain and unequivocal, or where one text has a broader meaning than the other. However, the common meaning obtained by a purely semantic approach may not be decisive. It must correspond to the legal meaning intended by the legislators. 28
5.4.6 Hence, the problematic expression has to be contextualized in order to deduce an objective solution that best gives effect to the legislative intent. In other words, the process of reconciliation does not stop at extracting the highest common rendering in both texts, which may possibly be repugnant to the spirit of the statute as a whole. It must still be related back to and tested against the backdrop of the overall objective of the statute in issue.
5.4.7 In fact, sometimes a shared meaning may not be found if the two texts are manifestly inconsistent. Therefore, the bilingual versions of an enactment must be read together and compared with each other by the purposive and contextual approach. A construction so arrived at should accommodate the legislative intent. It can be a construction that may have no grammatical analogue in one or both of the language versions. 29

Example 1
The English text of a statutory provision regulates the vehicles "entering or leaving" a delineated area. In the Chinese text, "¶i¥X" (jin chu) is adopted as the rendition of "entering or leaving". Exactly which vehicles are regulated under the enactment may be subject to different interpretations in the Chinese text. For example, it may be a vehicle that -

(A) is either entering or leaving the area; or

(B) having entered the area earlier, is now leaving the area.

Construction (A) is consistent with the meaning of the English text while construction (B) has a more restrictive meaning than the English text. This is a case where the English text is specific and the Chinese text ambiguous. The easiest route is to take construction (A), which is the meaning shared by both versions. However, the context as well as the purpose and object of the enactment in question should also be examined to ensure that construction (A) is indeed consistent with the meaning intended by the legislature.

Example 2
The English text of an enactment forbids the manoeuvring of "sharp" objects in certain circumstances. The word "sharp" is polysemous and can refer to objects that are either thin-edged or fine-pointed. The Chinese text adopts "¦y" (jian) as the corresponding expression of "sharp". "¦y" refers only to objects with fine points. This is a case where the English term bears a broader grammatical meaning than the Chinese. If the narrower meaning of the Chinese text is opted for, an object with thin edges will fall flatly outside the ambit of this prohibitory enactment.

Again, the approach should be to construe the two versions in the light of the context and object of the statute. Even though the more restrictive construction is compatible with the two texts, it is still unacceptable if the outcome will defeat the legislative intent. Therefore a straightforward linguistic resolution is not applicable in all cases. In this example, if the clear legislative intent is to catch both fine-pointed and thin-edged objects in the circumstance, a strained construction may have to be given to the Chinese word "¦y" in order to reconcile with the polysemous English term "sharp".
6. Out-and-out conflict between the two authentic texts
6.1 A case of bilingual linguistic discrepancy should be distinguished from one of a technical drafting error. As said before, reconciliation is not necessarily the finding of a meaning common to both versions. This is actually impossible in cases of mutually incompatible texts. The court in those circumstances may have to decide on the selection of a version that correctly expresses the underlying legislative purport.30
6.2 For example, the English text of a provision stipulates the duration of "28" days from a reference date to be the time limit for taking certain action. The Chinese text however provides for "25" days. This kind of inconsistency derives apparently from an error in one of the two language versions and may not be removed by the general means of statutory interpretation. It should be handled differently depending on whether the Chinese text was declared authentic subsequent to the commencement of the English text or whether both texts were enacted simultaneously.
6.3 In the case of a statute that was initially enacted in English only with its Chinese text subsequently prepared and declared authentic, the English version was the original official text on the sole basis of which the Chinese counterpart was prepared. In ascertaining its legal meaning, the English text should be taken as more accurately reflecting the legislature's intent when the statute was initially passed. In this case, the meaning borne by the English version will therefore take precedence over the Chinese one. 31
6.4 If both versions of a piece of legislation, though enacted at the same time, are found to be at odds with each other, still the legislative intent has to be determined and possibly with the aid of any admissible extrinsic materials. 32 so that the court may ascertain which of the versions gives effect to that intent correctly. It is objectionable in this case to speculate arbitrarily as to what the intent of the legislature might have been, and then to strain the language of the enactment in order to bring particular cases within such assumed intent. 33
6.5 The pink page titled "Check List and Instructions for each Ordinance" in the Loose-leaf Edition of the Laws of Hong Kong will tell whether the Chinese text of the Ordinance is enacted simultaneously with the English text or declared authentic under section 4B of Cap. 5. In the case of an Ordinance the Chinese text of which is declared under Cap. 5, an entry "L.N.(C) XX of 199X (Chinese authentic version)" can be found under the heading "Enactment History".
7. Concluding Note
It must be acknowledged that section 10B of Cap. 1 provides only broad guidelines for bilingual interpretation and is not a foolproof formula for the resolution of linguistic discrepancies. Statutory interpretation is after all the province of the judiciary. Statutory guidelines can only offer a general framework, which is to be filled by judicial rulings according to the particular context of each individual case.

Law Drafting Division
Department of Justice
May 1998