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Cliff Buddle

A coroner's inquest is, under any circumstances, a painful and emotional ordeal for relatives of the deceased. So it is easy to understand their frustration if the proceedings are conducted in a language they cannot understand.

This was the unhappy situation facing relatives of medical workers who died during the Sars outbreak when the inquiry into their deaths began last week.

The coroner, Michael Chan Pik-kiu,  could speak their language - Cantonese. So could most of the lawyers involved in the hearing. And the intention appears to have been that these proceedings would be held in the Chinese language.

But the Hospital Authority was represented by a senior counsel who does not speak Cantonese. As a result, the language to be used for the hearing was switched to English.

Cheng Yee-wah,  the father of a doctor who died during the outbreak, made a simple, yet powerful, protest to the coroner, calling for the inquest to be held in his own language.

'Chinese is an official language; why should I hear it in English?' he asked. 'This is not a common case of theft. It concerns death. The hearing should be held in Chinese.'

This is a logical argument and one which is difficult to resist. The relatives are there to find out how and why their loved ones died. The evidence given by witnesses, the submissions of the lawyers, and the eventual findings of the coroner could hardly be more important to them. Surely, they should not have to rely on the services of an interpreter to enable them to understand what is going on.

But this issue is one which has troubled Hong Kong's legal system for decades. And it raises very basic questions about the nature of the system. Is the English language a necessary part of our legal framework? And, as the number of court cases conducted in Chinese increases, is English on the way out?

This year marks the 30th anniversary of changes to the law which, for the first time, provided for the use of Chinese in the magistrates' courts.

Progress since then has been slow - but it has increased rapidly over the past decade. The overwhelming majority of magistrates' court cases are now conducted in Cantonese. The language was extended to hearings in the higher courts in the 1990s. But English is still widely used.

Efforts are made to accommodate those who want their case heard in Chinese. But there is a limit to the number of suitable Chinese-speaking judges who are available.

Most of the time, litigants accept this situation with little fuss. Interpreters are provided, and surprisingly few problems arise.

There have even been suggestions that some defendants in criminal cases rather like having them conducted in English - because the need for translation gives them more time to come up with answers to questions put to them in cross-examination.

But it is difficult to watch a murder trial, for example, being conducted in this way without feeling a little uncomfortable. The defendants face the possibility of life imprisonment. It is obviously preferable that the trial takes place in a language they can understand.

Protests like the one made in the inquest last week are rare. But occasionally, a disgruntled defendant will point out the absurdity of the situation or seek to assert their 'right' to have the proceedings conducted in their native tongue.

A few years ago, an activist being tried on public-order offences complained that the only person in the court who could not speak Cantonese was the magistrate. 'I feel it is ridiculous,' he said. 'You are the only one in this court who speaks English as a mother tongue. On this land of the Chinese people, all of us have to pander to you.'

Well, he has a point. It does seem crazy that English is sometimes used purely for the benefit of the judge or, in the case of the inquest, one lawyer. But the argument can only be stretched so far.

The reason is that our legal system is one which embraces and to some extent depends on judges and lawyers from overseas. It is rare indeed to find one who can speak Chinese well enough to use the language in court.

This makes it impractical to give everyone the right to have their case heard in Chinese.

Former legislator Gary Cheng Kai-nam argued that such a right existed, when pushing for his corruption case to be heard in Cantonese in 2001.

The Basic Law certainly appears to give priority to Chinese. 'In addition to the Chinese language, English may also be used,' it says.

But Mr Cheng's argument was rejected by Mr Justice Michael Hartmann,  who ruled that there was no right to a Chinese-speaking judge. The right which litigants enjoyed, he said, was to be able to use Cantonese to defend their interests in court - and this could  be done through an interpreter.

The decision recognised the important role that English plays in the system. The Basic Law allows for the appointment of judges from overseas.

It also gives Hong Kong residents the right to 'choice of lawyers' - a right which was exercised by the Hospital Authority when they hired a non-Chinese speaking lawyer for the inquest.

But Mr Justice Hartmann also noted that English was the 'root language' of the common law. It is in English that most of the legal precedents upon which our courts depend are written.

Before the handover, concerns were raised that a rush to push the use of the Chinese language in courts could prompt a brain-drain from the legal profession and force the common-law system to be abandoned.

These fears have since eased, but the point remains a valid one. The bilingual nature of our system is in keeping both with Hong Kong's history and its status as an international city. We should expect the English language to feature in our court cases for many years to come.

This means there will continue to be situations in which people are unable to have the proceedings conducted in a language which they understand.

But while accepting this, every effort should be made to ensure that - as far as possible - they are kept to a minimum. The plight of Mr Cheng, and other relatives attending the inquest, is an unattractive by-product of our bilingual system.



Painful ordeal puts English in the dock