Removing Linguistic Barriers to Justice: A Studyof Official Reference Texts for Unrepresented Litigantsin Hong Kong

Matthew Yeung · Janny Leung

© Springer Science+Business Media Dordrecht 2013

Abstract One less obvious impact of legal bilingualism in a postcolonial jurisdiction

likeHongKong is an increasing trend of unrepresented litigants. Since their lack of legal

knowledge often places them at a disadvantage and poses numerous problems in court,

the government has established the resource centre for unrepresented litigants to offer

them information about legal procedure. This paper evaluates the usefulness of the

Chinese official referencematerials at the centre in equipping laymen for civil litigation.

As a first point of contact between unrepresented litigants and the law, these leaflets have

a direct impact on the users’ understanding of litigation procedures and their courtroom

performance. This paper argues that the leaflets suffer from two major problems: (1)

incomprehensibility of language and (2) lack of structure. Problems involved in (1)

include inconsistency in terminology, problematic translation, and language complexity

arising from the use of odd collocation, unusual words, difficult legal terminology and

confusing parts of speech; whereas in (2), information is found to be scattered and

disorganised. To improve readability, the paper suggests using plain language, and

providing checklists of documents, and a legal glossary.Cross-jurisdictionpracticeswill

be examined to show how unrepresented litigants’ access to justice may be facilitated.

Keywords Unrepresented litigants · Legal language · Multilingual jurisdiction ·

Plain language

1 Background

One of the challenges faced by a bilingual or multilingual jurisdiction is to ensure

that there would be an equal and fair access to justice in all the legal languages

M. Yeung (&) · J. Leung

The University of Hong Kong, Pok Fu Lam, Hong Kong

e-mail: Yeungmatty@gmail.com

J. Leung

e-mail: Hiuchi@hku.hk

123

Int J Semiot Law

DOI 10.1007/s11196-013-9345-6

involved. This paper looks at how well Hong Kong is tackling this challenge, from

the perspective of laymen coming into contact with the law.

Hong Kong has been striving towards legal bilingualism—from a predominantly

English legal system to a Chinese-English one. During most of the colonial days,

English had dominated the common law system in Hong Kong as the only legal

language. However, ever since 1987 Chinese has been legitimized as another legal

language and given an equal status as English. Since 1995 court proceedings may

also take place in the local tongue—Cantonese1 which further recognizes the use of

Chinese in Law. Yet, its use is still relatively new compared with that of English. A

question therefore arises as to what extent is justice accessible through the newly

emerged Chinese legal language to the general public, especially to unrepresented

litigants who are often novice to the legal system.

The judiciary has noted a considerable increase in the number of

unrepresented litigants in civil proceedings in recent years [17]. In 2005,

41 % of civil trials in High Court and 51 % of civil trials in District Court

involved at least one party of unrepresented litigants [18]. According to a

government survey, 63 % of 343 litigants opted for self-representation because

they could not afford lawyers, while 30 % considered it unnecessary to have

any legal representation [39]. The confidence in self representation among the

latter group might have to do with the fact that they may now confront law in a

familiar language. Although unrepresented litigants may be familiar with the

language, they are usually unfamiliar with the law and legal procedures.

Consequently, they often demand a significant amount of judicial time and

resources, posing challenges to the courts [17]. This view is shared by

numerous judges and lawyers who often find it necessary to offer help to

unrepresented litigants in order to facilitate the courtroom procedures [4, 6, 22–

24, 30]. In fact, judges find it “very rare” to see unrepresented litigants

represent themselves in a competent manner and that very often, the proceeding

is lengthened due to their lack of understanding of the litigation procedure, law

and advocacy skills [6]. Proceedings being interrupted by unrepresented

litigants are commonplace, and in one interesting example, an unrepresented

litigant even shouted out “Objection!” to the judge in the middle of the other

party’s cross-examination [30]. As reckoned by the judges interviewed, offering

assistance to unrepresented litigants is a necessary yet time-consuming endeavor

[6], but if they offer too much help, their role as a neutral person in court

would be shaken, putting judicial impartiality in jeopardy [4].

A follow-up study also found that lawyers’ help might be needed to sort out the

bundle of documents, which should have been arranged in order by unrepresented

litigants themselves, but due to their lack of understanding of proceedings, work is

not done properly—which leads to a longer proceeding [10]. In one case, a plaintiff,

1 The Chinese language in Hong Kong takes on different spoken and written forms. While the spoken

language in Hong Kong is the Cantonese dialect, the written form is the Standard Chinese which is also

known as Putonghua or Mandarin.

M. Yeung, J. Leung

123

who was at first legally represented, submitted all the documents in English, but he

later chose to represent himself; as the case went on, he was required by the court to

formulate his statement of claim. He later submitted a pleading partly written in

Chinese and partly in English, with code-mixing included at times.2 However, as

Sect. 4.1 of the High Court Civil Procedure (use of language). Rules requires

documents to be submitted in either of the official languages, but not in both, the

document was rejected. All these largely highlight some unrepresented litigants’

limited understanding of procedural matters and also reflect some of the challenges

faced and posed by them in the courts.

In order to cater to the rising needs of unrepresented litigants and tackle their

“challenges” to the court, the Chief Justice opened the “resource centre for

unrepresented litigants” in 2003 with an aim to expedite the courtroom process and

lower legal costs by providing assistance to unrepresented litigants on civil

proceedings. At the centre, a series of 12 bilingual leaflets called “Guide to General

Civil Proceedings in the High court and the District Court”3 are made available to

introduce them to civil proceedings as follows:

Civil justice reform: an overview

Leaflet 1—What should be considered before taking legal action

Leaflet 2—What should be noted about civil proceedings

Leaflet 3—What are the stages in a civil action

Leaflet 4—How to prepare for a hearing or trial

Leaflet 5—How is a trial or hearing conducted in court

Leaflet 6—What are statements of truth

Leaflet 7—How to shorten legal proceedings: order 13A admissions in monetary claims

Leaflet 8—How to shorten legal proceedings: sanctioned offers and sanctioned payments

Leaflet 9—How to apply for judicial review

Leaflet 10—How to appeal

Leaflet 11—What is taxation of costs

Leaflet 12—Civil justice reform: transitional arrangements

As these leaflets serve as a first point of contact between unrepresented litigants

and the law, their comprehensibility has a direct impact on the users’ understanding

of litigation procedures and their courtroom performance, which might in turn bring

impacts on judicial impartiality and resources. Such reference texts thus deserve a

systematic study and have become the focal point of this paper. Although they are

available in both Chinese and English, we shall focus on the Chinese version for it is

spoken by the majority of the general public.

2 Chan Kong v. Chan Chi Chai Medical Factory (Hong Kong) Ltd, CA161 (2006).3 Judiciary or the Government of the Hong Kong Special Administrative Region (2009) About theResource Centre. Accessed through http://rcul.judiciary.gov.hk/rc/chi/aboutReso.jsp.

Removing Linguistic Barriers to Justice

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2 Difficulty of Making Common Law Chinese

The common law in Chinese was created by translating a total of 532 English

ordinances enacted before 1989. Although such task was completed by 1995, it is by

no means an easy one and the difficulties lying within are nicely captured by

Sarcevic:

The conceptual, structural, and ideological differences between the Chinese

socialist law and the English common law of Hong Kong make the difficulties

of this enormous task [translation of the English ordinances] formidable [36].

As identified by Poon [32], the translation is essentially faced with two major

challenges, namely, terminological incongruity and conceptual incongruity. Termi-

nological incongruity refers to the lack of correspondence of legal words in the

target language. Incongruity of this kind is also called the “linguistic difference” by

Cao [7], which can be largely attributed to the differences in legal histories, cultures

and systems between languages. As for the case in Hong Kong, it is not hard to

understand the source of terminological incongruity when Chinese was primarily

used in different social spheres, but not in law [32].

The other challenge to legal translation in Hong Kong, conceptual incongruity,

concerns the cultural gaps or differences between the source language and target

language societies [7]. The gaps often arise from different historical and cultural

development, making the transposition a difficult one [36]. In the case of English

common law, the concepts are so culture-laden that it is doubtful as to whether

equivalents can be found in Chinese [35]. Indeed, finding an adequate equivalent is

“extremely difficult” and even “impossible” [37] at times, as Jeremy Matthews,

Attorney General of Hong Kong, explains:

For example, the word ‘possession’ in English law is not restricted to

immediate personal possession. A person can be guilty of possessing a

forbidden object if he entrusts it to another person for safe keeping on his

behalf. The important element is the capacity to control the thing in question.

There is no one Chinese term that adequately covers the concept. That is why

in recent legislation the draftsmen coined a new Chinese term for ‘possession’

[cited in 35]

Coining a new term in Chinese could be a solution to solving the terminological

problem in translation. Chinese characters allow flexibility in the creation of

meaning and can be combined to form novel collocations. Following the above

example by Matthews, the Chinese term guanyou was subsequently created as the

correspondence for possession, in which guan stands for keep and you for own,adding together to cover the concept of having the capacity to control the thing [25].

However, the Law Drafting Division in Hong Kong [26] cautiously reminds us that

the coined words do not always convey the combined meaning of the characters

they consist of. Indeed, when one coins new words or phrases to convey a specific

legal meaning, such neologism may bring about unfamiliar and unusual colloca-

tions. The coining of new words seems to be a reasonable solution when one fails to

M. Yeung, J. Leung

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find translation equivalents. However, whether laymen may understand the precise

meanings behind such scrutinized words is questionable.

3 Overseas Experiences

Despite the potential difficulty of understanding the Chinese legal language, there is

still a substantial grow in the number of unrepresented litigants in Hong Kong, but

Hong Kong is not alone in seeing such a spike. Data from other nations, such as

Canada and America, suggest that the issue of unrepresented litigants is widespread.

In San Diego, divorce cases involving at least one unrepresented litigant increased

from 46 % in 1992 to 77 % in 2000 [14]. In California, over 4.3 million litigants

were found to be unrepresented in 2004, and in cases involving unlawful detainer,

the defendant chose self-representation over 90 % of the time in 2004 [20]. In

Ontario, even though no precise figure has been reported in any comprehensive

study, a growing number of unrepresented litigants has generally been noted by

many lawyers, judges and court administrators [31]. Concerned about the lay

understanding of law among unrepresented litigants, different judiciaries have also

developed different brochures introducing them to law. However, the efficacy of

these materials will depend on their comprehensibility. Drawing on the case of

California, there are two essential components to make legal materials more

accessible and user friendly, namely the use of plain language and a glossary.

The Judiciary Branch of California has adopted plain language in the online,

multilingual information provided by the “online self-help center” on various legal

procedures such as small claims, divorce and criminal law. There is no international

standard for plain language, but the fundamental principle is to write clearly by

keeping the needs of the potential readers in mind [2, 3, 29]. The online center is

clearly directed at ordinary public who are in need of lucid instructions, and

therefore, technical legal jargon would be explained in everyday English. Take the

first paragraph about service of process for example:

What is service? The law says that when you sue a person, partnership,

corporation, or the government, you must give formal notice to the other side

that you have started the legal process. In the same way, when you are already

involved in a case and file papers with the court, you are required to give the

other side notice of the paperwork you have filed. The legal way to give

formal notice is to have the other side “served” with a copy of the paperwork

that you have filed with the court. This is called “service of process” [21].

The legal concept of service is explained in everyday lexicon. Since service of

process is a basic step of civil proceeding, it is important that unrepresented litigants

be informed about its meaning.

A further technique employed in their plain language is to supplement legal terms

with (roughly) equivalent common words. Let us consider the following sentence

from the website: “serve (give) the Subpoena to the person or business you are

subpoenaing”. When legal documents are delivered or given to the other party, they

are said to be served. Yet, this collocation may not be commonly known to people.

Removing Linguistic Barriers to Justice

123

In aid of understanding, the word serve is thus juxtaposed with a simpler equivalent

give in brackets. One might nevertheless argue that providing synonyms all the time

makes a legal text clumsy. This is when a glossary becomes useful.

The online self-help center has also compiled a “self-help glossary” which

consists of more than 700 legal expressions. They include basic legal terms,

common words with legal meanings and Latin terms, all of which are written in

plain English. Take, for example, the legal term defendant which is stated to be, “in

a civil case, the person or organization sued by the plaintiff” and “in a criminal case,

the person accused of the crime” [21]. The role a defendant takes on is stated clearly

in a simple sentence. Yet, unavoidably, when explaining certain concepts, other

legal terms would be drawn on for illustration or comparison, such as the mention of

plaintiff in the above explanation. This might potentially hamper one’s understand-

ing of the whole concept. The glossary then cleverly employs intra-links to rectify

the problem. If a word included in the glossary appears elsewhere, it would be

highlighted with an intra-link directing one to the entry where it is explained.

For printed materials, applying intra-links may not be feasible, but the adoption

of plain language and a legal glossary remain helpful. While a legal glossary could

be a primary reference to introduce one to the necessary terminology, plain

language could reduce legal technicalities to a level where a majority of people

without training in law could understand [1]. Therefore, they are a useful tool in

introducing laymen to law.

4 Incomprehensibility of Language

4.1 Language Inconsistency

One of the sources contributing to the incomprehensibility of the materials comes

from the inconsistency of language use. Inconsistency arises when the same piece of

information is presented differently at one place from another, and the following

example illustrates a somewhat conflicting piece of information in two leaflets when

describing the same document called originating summons.

Source

Leaflet 2 page 2 訴訟人對案中事實沒有爭議, 卻就法律論點或只是對法律文件內某些詞語

的詮釋有爭議, 則宜採用原訴傳票起訴。An originating summons is suitable for cases where there is no dispute as to facts,

the argument is on points of law or solely relates to the interpretation of certain

terms in a legal document.

Leaflet 3 page 11 訴訟各方如果對事實沒有爭議或只有輕微爭議,並只要求法院就法律的爭

論點作出裁定,便適宜以原訴傳票展開訴訟。Originating summons is usually suitable for cases where there is only little or no

dispute of fact and the parties only raise issues of law for the Court’s

determination.

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Leaflet 2 states that an originating summons should be adopted when there is no

dispute of fact; yet, leaflet 3 suggests that it could be adopted even if there is a

dispute of fact, but the dispute has to be little. This varying amount of information

confuses the reader as to which version he shall follow for his case. By virtue of the

Rule of High Court Chapter 4A Order 4 Rule 4 (2), an originating summons is

suitable for proceedings

a. in which the sole or principal question at issue is, or is likely to be, one of the

construction of any written law or of any instrument made under any written

law or of any deed, will, contract or other document, or some other question of

law, or (b) in which there is unlikely to be any substantial dispute of fact.

The phrase unlikely to be any substantial dispute of fact suggests that a littledispute of fact is allowed in the scope of an originating summons and therefore, the

information given in leaflet 3 should be the correct version. In other words, the

information in leaflet 2 is deficient and even misleading because the user is not fully

informed of the circumstances under which an originating summons can be filed.

What further complicates the definition of originating summons is how it is

conveyed with an assumption of legal knowledge in users. Two legal concepts,

namely point of facts and point of law, are contrasted in both excerpts, but without

explanation of what they are. In fact, the distinction between fact and law is not

always clear. The Hong Kong Judiciary [15] gives clear directions on points of law

to lay jurors. Just as how jurors are not expected to understand legal concepts

without clear instructions, it is equally unrealistic to expect litigants to understand

the difference between these two legal ideas in order to file the right writ when an

explanation is not given.

4.2 Problematic Translation

In the reference materials, some Chinese sentences seem to be written in the English

sentence structure. Such a syntactic transfer often results in an unclear meaning in

the Chinese form. Take a sentence from leaflet 3 as an example:

1. 即使訴訟是以原訴傳票展開,如果法庭認爲訴訟各方對事實有實質爭議, 便

可命令有關的法律程序應猶如以令狀展開般進行。

In case the Court finds that there is a substantial dispute of facts, the Court

may order that the proceedings should proceed as if they were by way of

writ.

The Chinese phrase 應猶如以令狀展開般進行 [jing1 jau4 jyu4 ji5 ling6 zong6

zin2 hoi1 bo1 zeon3 haang4] is likely to be translated from the English shouldproceed as if they were by way of writ. This can be seen from the mapping of the

elements where should corresponds to 應 [jing1], proceed to 進行 [zeon3 haang4],

writ to 令狀 [ling6 zong6], as if to 猶如 [jau4 jyu4], and by way of to 以…般 [ji5…

bun1], the last two of which are common English expressions. This is not to say

such words or phrases do not exist in Chinese, but the way in which they are put

together produces a phrase that is potentially confusing. Sentence parsing could be

Removing Linguistic Barriers to Justice

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an issue. Instead of being part of the document name, 令 [ling6] could be seen as a

verb meaning to make, and 狀 [zong6] would be the entity on which the action of

making is performed. Together with the following verb 展開 [zin2 hoi1] (proceed),

令 [ling6] forms a serial verb construction giving the phrase 令狀展開 [ling6 zong6

zin2 hoi1] a meaning to make that entity proceed. However, this parsing stops

making sense when one reads further.

4.3 Language Complexity

Complexity in language often compromises the materials’ clarity, and it takes place in

the form of odd collocation, unusual words, difficult legal terminology and confusing

parts of speech. It should be noted that these forms do not always occur alone.

4.3.1 Odd Collocation

Collocation refers to words which have the tendency to occur together frequently

[34]. Oddity in collocation thus arises when one word occurs with another word in a

combination that is rarely formed in our daily language use. For example, Halliday

[16] discusses how strong and powerful can collocate with argument to produce an

acceptable meaning, but how strong car and powerful tea do not constitute the right

lexical form in general. In leaflet 3, a rather uncommon collocation 作出承認 [zok3

ceot1 sing4 jan6] (make admission) is found:

2. 該令狀應連同表格 16或表格 16C,以便被告人按照第 13A號命令作出承認

(如適用的話)。If applicable, the writ should be accompanied by Form No. 16 or Form No.

16C for making admission under Order 13A.

The Chinese phrase consists of two words, namely,作出 [zok3 ceot1] (to make) and

承認 [sing4 jan6] (admission), in which the former word functions as a verb and the

latter as an object, making it a verb-object phrase e.g. 動賓詞組 [dung6 ban1 ci4

zou2]. This is where the oddity arises. As作出 [zok3 ceot1] (to make) functions as a

verb, what follows is usually a noun phrase. However, the following word 承認

[sing4 jan6] rarely behaves as a noun (e.g. admission), but is usually a verb (e.g. to

admit). This analysis is supported by results yielded from a corpus of modern

Chinese established by the Centre for Chinese Linguistics of Peking University [8]

which contains up to 4.77 billion words collected between 2002 and 2009 from

contemporary publications such as newspapers, novels, and magazines. The corpus

confirms the rarity of such a construction by yielding no results to the concerned

collocation in the 40947 entries related to the usage of 作出 [zok3 ceot1] (to make).

The current form sounds as if two verbs are put together, e.g. to make to admitwhich is semantically unclear. The transitive verb 承認 [sing4 jan6] (to admit)

requires an object to follow. Without its presence, the meaning as to what one

admits is unclear. In the case of 承認 [sing4 jan6] used as a noun (e.g. admission),

an object might not be needed but the sentence is unclear as to the nature of

admission in question. Syntactically speaking, it is clear that the adjunct按照第13A

號命令 [on3 ziu3 dai6 13A hou4 meng6 ling6] (according to Order 13A) modifies

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the verb phrase 作出承認 [zok3 ceot1 sing4 jan6] (make admission) by stating the

legal source on which the action is based. Semantically, the adjunct only expresses

the manner in which the action of making admission is performed. It does not reveal

the actual content of admission. This leaves the semantic gap of what one is

admitting under such order unfilled.

The recurring idea of making admission also appears in leaflet 2. Yet it is written

a bit differently:

3. 被告人可以採用連同令狀附一起送達的表格,對原告人的申索作出承認。

After 2 April 2009, if the plaintiff’s claim is only for payment of money, the

defendant may admit the plaintiff’s claim using the form enclosed with the

writ.

The meaning of this sentence fares a bit better than the previous one in that the

adjunct 對原告人的申索 [deoi3 jyun4 gou3 jan4 di1 san1 zok3] (to plaintiff’s

claim), while modifying the verb phrase 作出承認 [zok3 ceot1 sing4 jan6] (make

admission), does reveal certain information about what the admission concerns. The

noun phrase 原告人的申索 [jyun4 gou3 jan4 di1 san1 zok3] (plaintiff’s claim)

whose argument role is theme is what is affected by the action of making admission.

However, the aspect of the claim is not clearly stated and this gives rise to

ambiguity. There are two possible interpretations of this sentence. The admission

might be about the physical delivery or the actual content of the claim. However, 承

認 [sing4 jan6] (admission) carries a legal meaning that confines its interpretation to

only one of the above two. Once a claim is admitted, the matter is deemed to be

solved and no trial will be needed. Therefore, when one chooses to admit, he or she

is really “admitting the liability of the claim, not as an acknowledgement of

receiving the claim” [5]. The question thus arises as to whether a layman would be

aware of the legal concept of admission when its meaning is not explicitly stated.

There is a chance for potential misinterpretation which might lead to a miscarriage

of justice. legal terms as such, therefore, ought to be explained to clear any

ambiguity.

4.3.2 Infrequently Used Words

Word frequency refers to the occurrence of a word in a sample of text [33]. Words

with a high frequency are often processed more accurately and quickly than those

with a low frequency [13, 28]. Unusual words like those with archaic nature could,

therefore, have an impact on one’s lexical access. In leaflet 9, such a word is found

in an application form for judicial review when the leave is granted. The underscore

is the other party’s name the applicant is supposed to put down.

4. 現通知你有人會尋求飭令 ____________支付本申請的訟費及附帶訟費的

命令。

TAKE NOTICE that an order will also be sought that the costs of and

incidental to this application be paid by____________________________

__________.

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The expression 飭令 [cik1 ling6] (an order4) is an archaic word that was often used

by superiors to give instructions to subordinates in official government letters in old

time [42]. Its archaic nature may be verified using the previously mentioned corpus.

The corpus is divided into two sections—one on modern Chinese and the other on

ancient Chinese. The expression was not found in the modern Chinese section,

while 8 tokens were found in the ancient Chinese section. In fact, the character 飭

[cik1] (order) from where the unfamiliarity comes is not found on the official list of

frequently used characters in Modern Chinese compiled by the State Language

Commission and State Education Commission [11]. It is thus clear that 飭令 [cik1

ling6] (an order) is not a commonly used expression in nowadays Chinese. Whether

a word as infrequent as such would be recognized and even understood by the

general public is highly doubted.

It is, indeed, not just on the lexical level that the word might have an impact on

the meaning. Confusion may arise during sentence parsing. Let us consider the

information in bracket as one unit modifying what 飭令 [cik1 ling6] (an order) is

about:

5. 現通知你有人會尋求飭令 (____________支付本申請的訟費及附帶訟費的

命令)。

This is to inform you that somebody will seek an order5 that (___________

pays for the legal costs of this application and the order6 of the incidental

costs to this application).

There is a lack of verb-object agreement within the bracket. While the main verb

支付 [zi1 fu6] (to pay) is in agreement with the first object 訟費 [zung6 fei3] (legal

costs), it is not so with the second object 命令 [meng6 ling6] (order). One can pay

for legal costs, but the meaning of paying for an order does not seem to make sense.

This incoherence could be solved if the sentence is parsed in the following way:

6. 現通知你有人會尋求 (飭令 ____________支付本申請的訟費) 及 (附帶訟

費的命令)。This is to inform you that somebody will seek (an order7 that ___________

pays for the legal costs of this application) and (the order8 of the incidental

costs to this application).

Coherence is achieved in that the main verb 尋求 [cam4 kau4] (to seek) collocates

with the first object 飭令 [cik1 ling6] (an order) and the second object 命令 [meng6

ling6] (an order). However, the constituent belonging to the first object as bracketed

is a large chunk that sets the main verb and the second object too far apart. It is

likely that, due to proximity, 支付 [zi1 fu6] (to pay) would be mistaken for the verb

in agreement with 命令 [meng6 ling6] (an order), therefore, favoring the previous

4 The English word “order” could be translated into the archaic, infrequent word 飭令 [cik1 ling6] or the

modern and frequent words 命令 [meng6 lıng6] and 指示 [zi2 si6].5 This English term “order” corresponds to 飭令 [cik1 ling6].6 This English term “order” corresponds to 命令 [meng6 lıng6].7 This English term “order” corresponds to 飭令 [cik1 ling6].8 This English term “order” corresponds to 命令 [meng6 lıng6].

M. Yeung, J. Leung

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sentence parsing. Nevertheless, focusing on this alternative way of parsing the

sentence, even if coherence is achieved, sentence clarity is in jeopardy. The person

whose name is to be filled onto the underscore is only under the order to pay for the

legal costs of this application, but whether he or she is responsible for the incidental

costs to the application in the latter order is not specified. However, according to the

official English version of the reference materials, the meaning is restricted to the

idea that the order sought requires one to pay for both the legal costs and any

incidental costs to the application. Therefore, there exists ambiguity in this way of

sentence parsing.

A reason why archaic words are adopted may have to do with their ability to

invoke formalism, but meaning should not be sacrificed for the form. Most of

archaic words are often “unnecessary” [12]. In order to avoid any confusion and

misunderstanding brought about by archaic expressions, they should be replaced. In

fact, 飭令 [cik1 ling6] (an order) is a synonym of 命令 [meng6 ling6] (an order),

and they could be used interchangeably. When they both present roughly the same

meaning given the above context, it is wise to choose the latter form to replace the

former archaic word for an easier understanding.

4.3.3 Difficult Legal Terminology

One distinct characteristic of legal language is its specialized vocabulary. Such

vocabulary is needed for brevity in communication because its absence would

require a technical process or notion to be explained in a “long and clumsy” manner

at each of its occurrence [12]. However, the convenience seems to be only available

to legal experts who are trained to understand its technicality. As for laymen, what

the language brings instead might just be confusion as in the following example

from leaflet 2:

7. 你須用宗教式誓章或非宗教式誓章(即經你宣誓確認內容的文件)證明已完

成送達令狀或原訴傳票的程序。

You have to prove by affidavit or affirmation (i.e. a document by which you

have to make an oath) the service of the writ or originating summons.

Let us focus on two legal terms, namely, 宗教式誓章 [zung1 gaau1 sik1 sai6

zoeng1] (affidavit) and 非宗教式誓章 [fei1 zung1 gaau1 sik1 sai6 zoeng1]

(affirmation). Their nature as a document is briefly stated in brackets. Yet, no

differentiation between these documents has been offered throughout the entire

reference materials even though one is supposed to make a choice between them.

Under such circumstances, the users would naturally be perplexed on the choice of

document they should pick to prove the mentioned procedure.

One may nevertheless argue that the meaning of the terms can be inferred by the

literal reading of the Chinese characters. 宗教式誓章 [zung1 gaau1 sik1 sai6

zoeng1] and 非宗教式誓章 [fei1 zung1 gaau1 sik1 sai6 zoeng1] can be translated

into a religious oath and non-religious oath respectively. However, what the oath

recognizes as a religion under the common law is unclear. In Hong Kong, there is a

variety of religions in practice—for example, Buddhism, Taoism, Confucianism,

Removing Linguistic Barriers to Justice

123

Christianity, and Islam. Following the literal sense, if one is a Buddhist, one shall be

right in picking the religious oath 宗教式誓章 [zung1 gaau1 sik1 sai6 zoeng1]

(affidavit) as the document required as proof. This, however, is not the case. Indeed

as noted by Wilkinson, Cheung and Booth,

[t]he distinction between affidavits and affirmations is that affidavits are

‘sworn’ by virtue of a belief in God, whereas affirmations are simply ‘made’

by way of being affirmed and have no religious significance. Whereas

affidavits are appropriate to be sworn by Christians and Jews, all other persons

should make affirmations [41].

The sense of God seems to be confined to be the one in Christianity and

Judaism, but not in any other religions. Therefore, there is a difference between

the two documents and there is a certain meaning behind religion in common

law, which ought to be explained so that one can make the right choice. Based

on this analysis, we argue that a glossary is much needed to explicate the

concepts.

4.3.4 Confusing Parts of Speech

The meaning of a sentence can be unclear when the part of speech of the words

might easily be confused. This might be less of a problem in English where

morphological features are present to indicate the part of speech. However, the

Chinese language does not have such marker. In the following sentence from leaflet

3, the main verb seems to be easily confused with other constituents that could

potentially function as a verb in the sentence as well.

8. 原告人須以屬實申述核實申索陳述書。The plaintiff has to verify the statement of claim by making a statement of

truth.

There are two documents involved, which are 屬實申述 [suk6 sat6 san1 seot6]

(statement of truth) and 申索陳述書 [san1 saak3 can4 seot6 syu1] (statement of

claim). In the document names, 申述 [san1 seot6] (to specify), 申索 [san1

saak3] (to claim) and 陳述 [can4 seot6] (to state) could all behave as a verb.

Together with the main verb 核實 [hat6 sat6] (to verify), there are four potential

verbs in the same sentence. This gives rise to many possible ways of parsing the

concerned sentence given below, where possible document names are put in

brackets:

● 原告人須以「屬實申述」核實「申索陳述書」。

● 原告人須以「屬實申述」核實申索「陳述書」。

● 原告人須以「屬實申述」核實申索陳述「書」。

● 原告人須以「屬實申述核實」申索「陳述書」。

● 原告人須以「屬實申述核實」申索陳述「書」。

● 原告人須以「屬實申述核實申索」陳述「書」。

M. Yeung, J. Leung

123

The above sentences all follow the structure of using an object to perform anaction on another object. The main verb could potentially be mingled with part of

the document name to form a serial verb construction, and the struggle, thus, lies in

the search for the correct main verb and subsequently the intended message.

A minor translation issue could also be raised in this example. While thestatement of claim is translated into申索陳述書 [san1 saak3 can4 seot6 syu1], thestatement of truth is 屬實申述 [suk6 sat6 san1 seot6]. The additional character書

[syu1] (book) found in the former translation helps to signify that it is a document.

Such a character, however, is not found in the Chinese for the statement of truth,

making it less clear to laymen as to whether it is a document especially when it is

adjacent to a verb as in the above example. The addition of the character 書 [syu1]

(book) makes the documents more recognizable and the sentence more easily

parsed. We further suggest that the document names be put in brackets for easier

reading. For example,

9. 原告人須以「屬實申述」核實「申索陳述書」。The plaintiff has to verify the “statement of claim” by making a “statement

of truth”.

5 Lack of Structure

The reference materials also suffer from a lack of structure. Information is scattered

across the leaflets; therefore it takes great effort to gather bits and pieces of

information hither and thither to complete one task.

5.1 Lack of a Checklist

No matter in the initial stage or actual trial of civil proceedings, preparing all the

necessary documents is undoubtedly essential. Lawyers have complained about how

the document bundle is not properly arranged by unrepresented litigants [10]. Yet

the reference materials fail to provide unrepresented litigants with clear guideline

about documents relevant to each process.

For example, in an attempt to accomplish the service of writ, one needs the

following documents: a statutory form of writ, a statement of claim, a statement of

truth, affidavit or affirmation, three copies of acknowledgement of writ, and an

optional Form 16/16C. While the former 3 documents are mentioned in leaflet 3,

the latter three are in leaflet 2. The information about statement of truth and

Form16/16C, however, is given in leaflet 6 and 7 separately. Therefore, the

essential information is buried in paragraphs in 2 leaflets and for one to prepare

for all the relevant documents, 5 leaflets have to be read making up a total of 32

pages. While it might take more words to describe what the service of writ

involves, it is not user-friendly to require the user to gather a list of documents

Removing Linguistic Barriers to Justice

123

from numerous paragraphs and leaflets. A checklist ought to be provided as a

reminder for laymen as follows:

Documents needed for the service of writ Information to be found

A statutory form of writ Leaflet 3, p. 4

傳訊令狀是由法例訂明的表格,可以向法院登記處索取。

The writ of summons is a prescribed statutory form. Copies of it can be

obtained from the Court Registry.

A statement of claim and a statement of truth About statement of claim: leaflet

3, p. 6

傳訊令狀應該註有申索陳述書。原告人須以屬實申述核實申索陳

述書。

About statement of truth: leaflet

6

The writ of summons should be endorsed with a statement of claim.

The plaintiff has to verify the statement of claim by making a

statement of truth.

Affidavit or affirmation Leaflet 2, p. 3

你須用宗教式誓章或非宗教式誓章(即經你宣誓確認內容的文件)證明已完成送達令狀或原訴傳票的程序。

You have to prove by affidavit or affirmation (i.e. a document by which

you have to make an oath) the service of the writ or originating

summons.

Three copies of acknowledgement of service Leaflet 2, p. 4

每一份令狀或原訴傳票必須連同三份送達認收書送交被告。Every writ or originating summons served on a defendant must be

accompanied by three copies of acknowledgement of service.

Optional: Form 16/16C for making admission Leaflet 2, p. 5 and leaflet 7

被告人可以採用連同令狀附一起送達的表格,對原告人的申索作出

承認。After 2 April 2009, if the plaintiff’s claim is only for payment of

money, the defendant may admit the plaintiff’s claim using the form

enclosed with the writ.

5.2 Lack of Glossary

Another problem with the reference materials is that no explanation is offered to

some technical terms such as 送達認收書 [sung3 daat6 jan6 sau1 syu1]

(acknowledgement of service). Even when an explanation of a term is given, it

would only appear once. For instance, the explanation of affidavit and affirmation

first appears in leaflet two:

10. 宗教式誓章或非宗教式誓章(即經你宣誓確認內容的文件)

Affidavit or affirmation (i.e. a document by which you have to make an oath).

Yet, in leaflet 3, when these terms appear again, no explanation is given. This largely

suggests that one should read leaflet 2 before moving onto leaflet 3. There seems to be

M. Yeung, J. Leung

123

a presumed order of reading the documents which follows the number printed on the

leaflet. However, the implied order does not seem to be valid when the following

description in leaflet 7 concerning the coverage of Order 13A is considered:

11. 第1 3 A 號命令不適用於其他類別的申索, 例如尋求強制性濟助、屬宣告

性質的濟助, 或有關土地管有權的申索。

Order 13A does not apply to other kinds of claim such as those seeking

injunctive or declaratory relief or possession of land.

Where legal terms as such injunctive and declaratory relief are mentioned, they are

not explained until in leaflet 9. A prior reading of leaflet 9 is therefore needed for

one to understand those terms in leaflet 7. This highlights the selective explanation

and lack of a clear index. A glossary would be a simple and useful remedy—a

general reference so that one does not have to go through pages of information for

the meaning of one legal term.

One may nevertheless notice that the Department of Justice has produced two

versions of glossary that might be of help to laymen. They are called English-

Chinese Glossary of legal terms and Chinese-English Glossary of legal terms which

could be viewed online for free on the Government website. These glossaries are of

questionable use to the laymen as they do not offer plain language explanations of

legal terminology, but only show related legal expressions, relevant chapters and

sections in the ordinance, and the Chinese equivalent. By typing 宗教式誓章

[zung1 gaau1 sik1 sai6 zoeng1] into the search bar, the following result will be

yielded: English expression: affidavit/Chinese Expression: 宗教式誓章 [zung1

gaau1 sik1 sai6 zoeng1]/Chapter: 11/Section: 9(1). The tautological explanations

simply do not help the laymen understand legal terms better.

For an easier referencing, a glossary is best to be attached to the reference

materials with legal terms explained in plain language and with an index of where

they can be found. We provide below an example of how this may be done where

the plain language definition is extracted from Xianggang jian ming ying han

shuang jie fa lu ci dian, the concise Hong Kong English-Chinese legal dictionary [9].

Terminology Plain language definition Index

送達認收書 訴訟其中一方對收到令狀或原訴傳票的正式確認。確認必

要合乎指定格式

Leaflet 2: p. 2, p. 4

Leaflet 3: p. 5–7, p.

12–13, p. 15Acknowledgment

of service

A formal admission by or on half of a party that the party has

been served with a writ or an originating summons. It must

be in a prescribed form.

抗辯書 指在法律行動或訴訟中,應訴一方提供及指稱的抗辯,以作

為原告人不應追尋討或確立他/她所尋求的申索的法律

或事實理由。

Leaflet 1: p. 8, p. 12

Leaflet 2: p. 6

Leaflet 4: p. 3

Leaflet 7: p. 2

Leaflet 3: p. 5, 7, 8

Defence The response offered and alleged by the responding party in an

action or suit as a legal or factual reason why the plaintiff

should not recover or establish what is sought.

Removing Linguistic Barriers to Justice

123

6 Conclusion

The official reference materials discussed aim to equip unrepresented litigants with

knowledge of procedural laws, but how they are written fails to serve the purpose.

As a layman to law, the first questions he might have in mind would very likely be

“how should I start my litigation and what are the procedures and timeline I should

be aware of?” Instead of offering direct answers, a layman would be engaged into a

process best described as a scavenger hunt in which he is required to collect

scattered pieces of information across numerous leaflets for his lists of questions.

Yet, he may not always be successful in completing the hunt because some

information differs from one place to another, and even if the puzzles are seemingly

completed, he would still not be able to fully understand the content because there

are more hurdles ahead—language issues. What are an affidavit and a statement of

truth? Questions alike would probably go around his mind from time to time,

especially when some of the legal terms are given little or no explanation at all. A

layman has to rely on his own imagination to decode the words. Yet, turning to the

literal reading of the Chinese characters would not help him much. What further

adds onto his frustration would be coming across archaic words that he has probably

never seen before and also complex sentences that he would have a hard time

decoding. Even though a layman is much in need of help, the reference materials do

not walk him through the procedures. Instead, they leave him in a maze replete with

confusing and hidden signs. In order to redress the language issues mentioned, this

paper has therefore suggested several techniques to enhance the readability with an

emphasis on the use of plain language and glossary.

However, the key to solving the problems faced and caused by unrepresented

litigants does not only depend on improving the readability of the reference

materials. It is also imperative to understand the government’s position on the issue

so that corresponding measure can be planned. Here the government is in a

predicament of maintaining a balance between a sense of hierarchy of the justice

system and public interests. Even though judicial formalism is at stake, it is in the

public interests that our justice system should be made accessible to any ordinary

citizens who may or may not be competent in representing themselves. The palpable

tension then leaves us to wonder how the government intends to strike a balance.

Does the government really intend to encourage self-representation by devoting

more resources to the support services, or is it just making minimal effort in

supporting unrepresented litigants just to get them through the system?

The government’s policy direction suggests that it is taking a proactive approach

to assisting unrepresented litigants. In 2004 the Working Party of Final Report on

Civil Justice Reform recommended the judiciary to give “special allowances” to

unrepresented litigants when they were not aware of or did not comply with

applicable obligations [40]. Judiciary Administration [18, 19] has promised to

continue to provide appropriate assistance to them. However, the resources spent on

the reference materials do not seem to be effective, so perhaps what the government

should do is to use the resources more wisely. Other than fixing the obviously

problematic reference materials and the official online glossary, it might be helpful

to look into the reasons of self-representation when the government deploys its

M. Yeung, J. Leung

123

resources. As previously mentioned, a majority of people chose to represent

themselves because of financial difficulty in hiring lawyers. Some relevant questions

to ask would be: is the current legal aid policy sufficient to cater to the public’s

needs and is the support set at a reasonable level?

One lesson that may be drawn from this paper is the importance of making

procedural rules accessible. Laws can be largely divided into two types—laws of

public behavior and laws that govern the implementation of those laws. The former

type sets up boundaries of permissible conduct in society and has impacts on most

people. Lucid formulations of these laws are thus of paramount importance. The

second type of laws, on the other hand, can be seen as rules of procedure. Even

though the scope of people being affected by such laws may be comparably smaller,

their role to ensure that laws be rightly executed gives them an equally important

weight in legal system. Some of these basic procedural laws ought to be clearly

formulated and publicized so that people have a basic understanding to navigate the

legal system themselves. A relatively effective way to achieve so is to draft such

laws using language of the public—plain language.

Skeptics may nevertheless contest the possibility of replacing the traditional legal

language known as legalese with plain language. It is often argued that legal

lexicons such as archaic words are more formal and precise because their meanings

have been well defined in court decisions over decades of years [38]. There is a

concern over the loss of precision in these terms when they are rewritten in plain

language. Even though this concern is not without its reasons, it may also be

relevant to look into the actual number of terms that have been given judicial

interpretations in common law. Hathaway, Omichinski and Pratt (1985 cited in [3])

found that the number of such terms remains to be quite small and may only make

up for three percent of an entire standard contract on land sale. In other words, a

majority of legal terms can be simplified or altered without implicating judicial

decisions. Simplifying by plain language is therefore a feasible idea. There has been

growing support for introducing plain language to law in different countries which

include Australia, New Zealand, and Britain [3]. In America, several states such as

Pennsylvania, New York and Connecticut have already legislated their own Plain

Language Law [38]. Singapore has even introduced plain English drafting in their

legal education [43].

Any jurisdiction that attempts to become bilingual or multilingual would very

likely find plain language useful for translation or legislation at the time its new

legal language is still adapting to the law. In various jurisdictions critics have argued

for one reason or another that a new legal language is incapable of expressing

existing laws [27]. We believe in quite the contrary—sometimes it is not the

language itself but the way it is written or translated that compromises its readability

and expressiveness as a legal language.

Acknowledgments We would like to thank Professor Christopher Hutton and Dr. Frederick Blumbergfor their invaluable comments on this paper.

Removing Linguistic Barriers to Justice

123

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