2.1Conceptual issues of Hong Kong Chinese legal terminology

The AGC emphasized that the Chinese version of Ordinances was not merely a translation of secondary importance, but that it enjoyed equal status with the English original. This principle has in fact been given statutory effect: Section 10B(1) of the Interpretation and General Clauses Ordinance (Cap. 1) provides that: “The English language text and the Chinese language text of an Ordinance shall be equally authentic, and the Ordinance shall be construed accordingly.” As can be imagined, it is likely that there may be instances of discrepancies in meaning between the English text and the Chinese text of an Ordinance. The Interpretation and General Clauses Ordinance anticipates this issue and stipulates how to deal with it: Section 10B(3) provides that:

Where a comparison of the authentic texts of an Ordinance discloses a difference of meaning which the rules of statutory interpretation ordinarily applicable do not resolve, the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance, shall be adopted.

As will be seen below, this test is easier stated than applied. For the terms created by the AGC/DOJ in the drafting of the bilingual statute laws, the terms would automatically enjoy the statutory status. However, in the common law system, as the translation of case law is ongoing, the terms created in this process may not enjoy the statutory status. There are also Chinese legal terms not created by the AGC/DoJ, that is, terms mostly created during the translation of case law. Although these do not enjoy the above statutory status, some of them have become popular among legal practitioners as a result of widespread use by leading personalities in the profession such as judges.

Accordingly, equivalence is always an important issue in the translation of legal terms and it is particularly challenging for Hong Kong. The first challenge is inherent in the history of Hong Kong. As Chinese “has never functioned as a legal language”, “terminological incongruity” is prevalent when translating English common law terminology into Chinese (Poon 2002, 77). It is recognized that “an inherent and inevitable link exists between the Common Law and English” (Wong 1997, 63). To help find Chinese equivalents for “culture-laden common law concepts” rooted in English, Sin and Roebuck (1996, 248) propose the approach of “total equivalence” with a “semantic reference system” always fixed in common law. They note that, “Since the law of the SAR [Special Administrative Region] is stipulated to be common law, all common law terms in Chinese, however they are produced, must accordingly be understood with reference to the common law”. With this “total equivalence” in place, there is, theoretically, no equivalence issue between English legal terms and their Chinese counterparts in Hong Kong (Chan 2020, 51). Nevertheless, the translated Chinese legal terms in Hong Kong have been strongly criticized for their poor comprehensibility. These problems will be examined by investigating the methods of translating legal terms.

2.2Conceptual issues of Chinese legal terminology in Chinese regions

There are also conceptual issues relating to the systemic differences between the world’s two major legal systems, that is, while Hong Kong law is based on common law, the laws of Mainland China and Taiwan are based on civil law. As a result, a foreign term may be allocated the same or different translations by the different Chinese regions. A particularly confusing situation is that the same Chinese legal term may have different meanings due to the systemic differences. For example, daoqiezui (盜竊罪) (theft) in the Hong Kong’s Theft Ordinance (Cap. 210) (Daoqiezui Tiaoli 《盜竊罪條例》) has a different meaning than in the PRC law. Inheriting the common law meaning under the Theft Act 1968, daoqiezui contains five elements appropriation, property, belonging to another, dishonestly and with the intention of permanently depriving. In contrast, Mainland Chinese term daoqiezui (盜竊罪) has a different legal definition: it involves stealing a relatively large amount of public or private property, committing thefts many times and commits a burglary or carries a lethal weapon to steal or pick pockets (English translation, Criminal Law of the PRC). Therefore, due to this legal difference, the term daoqiezui (盜竊罪) in Hong Kong and that of the Mainland can be considered functional equivalents, but not absolute equivalents (Chan 2020, 51–52).

3.1Methodology and related issues

During the bilingual translation project that took place before 1997, the Law Drafting Division (LDD) of the DoJ adopted four methods to create new Chinese legal terminology (Poon 2002, 78–84). First is the use of literal translation to preserve the source meaning, e.g. common assault as putong xiji (普通襲擊), deed of assignment, deed of separation and deed of trust as zhuanrang qiju (轉讓契據), fenju qiju (分居契據) and xintuo qiju (信托契據). Poon notes that the advantage of this “following the form of the source terms” is “mirror image consistency” (Li and Poon 1998, xi-xii). These literally-rendered compounds are also used in Mainland China and Taiwan (Chan 2020, 122), with civil law examples, such as derivative action (衍生訴訟), undue influence (不當影響), product liability (產品責任) and sexual harassment (性騷擾). The second method is “giving a descriptive equivalent or paraphrase as a representation of the English term”, which is “the most effective method of compensating for terminological incongruity” (Poon 2002, 79). Examples are the rendering of slander as duanzan xingshi feibang (短暫形式誹謗) (temporary form defamation) and libel as yongjiu xingshi feibang (永久形式誹謗) (permanent form defamation), which are formed based on the definitions of the terms.

The third method is “coining new words with existing morphemes, changing or extending the meaning of an existing Chinese term as the solutions” (Poon 2002, 80). A successful example is aircraft as hangkongqi (航空器) (aero instrument), which is broad enough to refer to any kind of flying machine, instead of the frequently-used translation feiji (飛機) (flying machine). A not so successful example is the Chinese translation of charge yaji (押記) (pledge mark), in which the morpheme ya (押) does not normally collocate with ji (記), and charge already has a general translation diya (抵押) (Poon 2002, 80–81). Similar instances of this include guanyou (管有) (possession), formed by combining guanli (管理) (manage) and yongyou (擁有) (own); zhuanyi (轉易) (conveyance) from zhuanrang (轉讓) (transfer) and jiaoyi (交易) (transaction); yaojian (要件) (condition) from zhongyao (重要) (important) and tiaojian (條件) (condition); and xinna (信納) (satisfy) from a combination of xiangxin (相信) (believe) and jiena (接納) (accept) (Ng 2009, D05; Tso 2002, 70). For example, although most Chinese readily understand that xin refers to xiangxin and na to jiena, the fact that the two morphemes are not usually put together meant that the newly-created compound was met with for the first decade or so following its introduction. However, in recent years, it has started to be used rather frequently in the legal profession.

The fourth method is borrowing from similar legal terms in Mainland China and Taiwan. This method is not without its problems. For example, the use of the Mainland term weixie qinfan (猥褻侵犯) to translate indecent assault disregards that feili (非禮) (no manners), a compound word originating from the Classic Lunyu 《論語》 (The Analects of Confucius) has been used since ancient times (Poon 2002, 78–84). There are other issues raised by giving up existing Chinese words in favour of newly-created words. When the DoJ abandoned weisui (未遂) as an equivalent of attempt because it already carried a meaning different from that in common law, it highlighted the difficulties involved in using this borrowing method (Poon 2002, 83):

Does this mean that if a Chinese term has already been used by the Chinese law with a meaning which is different from the common law one, it would be inappropriate for Hong Kong to use that term based on its original meaning? Does this imply that the Chinese law is going to have a monopoly on the meaning of that term? As Hong Kong can surely develop its own Chinese legal glossary using the available Chinese vocabulary without the need to be concerned about any contradiction of meaning with Mainland China.

The principle underlying these methods is to keep the overall translation as precise as possible. Tony Yen, then Law Draftsman, explained that the translation approach of the AGC was to “prefer accuracy of the translated text over readability” (ning qu yiwen zhunque er sheqi keduxing) (寧取譯文準確而捨棄可讀性) (Yen 2002, 6). While this approach could hardly be faulted from the viewpoint of legal precision, the resulting product, namely the Chinese version of Ordinances, which is still in force today, has been criticized as incomprehensible even to legal practitioners (Ng 2009, D05). It is now too late to revise, let alone redraft, the Chinese version. However, now acutely aware of the problem with the Chinese texts of legislation, the DoJ has been drafting Ordinances in plain Chinese (and, for that matter, in plain English as well) (for example, the Companies Ordinance (Cap. 622)). It has occasionally even attempted to draft Ordinances first in Chinese and then in English (for example, the Promotion of Recycling and Proper Disposal (Electrical Equipment and Electronic Equipment) (Amendment) Ordinance 2016). Returning to Chinese legal terminology as the focus of this discussion, it is apparent that more appropriate methods of term creation are needed in order to meet the ‘equivalence’ requirement.

3.2Resources and related issues

There are a number of legal dictionaries and glossaries that focus on the two areas of of legal terminology development in Hong Kong, that is, English-Chinese terminological equivalence and Chinese terminological equivalence with other Chinese regions. Generally speaking, the work started at the governmental level and was then expanded on by academia. First, on the official front, the DoJ has published three volumes of English-Chinese Glossary of Legal Terms (Yinghan Falü Cihui 《英漢法律詞彙》, 4th Ed., 2004, with 32,000 entries) and the Chinese-English Glossary of Legal Terms (Hanying Falü Cihui 《漢英法律詞彙》, 1999, with 11,500 entries). The contents of these books are accessible on the Hong Kong e-Legislation 《電子版香港法例》 website of the DoJ (Retrieved from: https://​www​.elegislation​.gov​.hk​/glossary​/chi (Chinese-English glossary); and https://​www​.elegislation​.gov​.hk​/glossary​/en (English-Chinese glossary)). As e-Legislation is a comprehensive website that contains all the bilingual legislation of Hong Kong, this online English-Chinese/Chinese-English glossary has become the most popular free resource used by both professionals and the public. The bilingual glossary can also be downloaded as PDF and RTF files, arranged according to the alphabetical order or the number of strokes of the expressions. The DoJ has also published the English-Chinese Glossary of Civil and Commercial Law Terms (Yinghan Minshangshi Falü Cihui 《英漢民商事法律詞彙》, 4th Ed., 2015). These publications mainly focus on English-Chinese terminological equivalence in common law.

For the functionally equivalent terms from the three Chinese regions, there are three official glossaries. In the Yinghan Minshangshi Falü Cihui 《英漢民商事法律詞彙》 (English-Chinese Glossary of Civil and Commercial Laws, 2nd Ed., 2004) published by the DOJ, there are 164 civil law terms with translations or close equivalents from Hong Kong, Mainland, Taiwan and Macao. There are also two glossaries of financial terminology: (1) An English-Chinese Glossary of Securities, Futures and Financial Terms (4th Ed.) (Edited by Securities and Futures Commission, 2006) has 15,000 entries which are mostly close equivalents from Hong Kong and the Mainland, and (2) the online A Glossary of Securities and Financial Terms (Edited by Hong Kong Exchanges and Clearing Limited, 2019), in which some of the translated Chinese terms used in Hong Kong are provided with their Mainland counterparts marked by an asterisk (Retrieved from: http://​www​.hkex​.com​.hk​/eng​/global​/glossary​.htm). However, none of these official publications provides any legal definitions of terms.

Academic scholars have made great efforts to upgrade the overall quality of the lexicographical works. For example, the English-Chinese Dictionary of Law (Yinghan Falü Da Cidian 《英漢法律大詞典》, Commercial Press (Revised version), 2015), together with its first edition in 1998 (Li and Poon, 1998), is the most comprehensive English-Chinese legal dictionary in Hong Kong with Chinese definitions. This collective work is edited by Li Zonge, Ho Kwun-ki, Lui Tze-ying, and Emily Poon Wai-yee. Also produced by a team of editors (Patrick Chan, Betty Ho, Margaret Ng, Michael Wilkinson, Vincent Liang, Sin King-kui, and Tong Yen), The Hong Kong English – Chinese Legal Dictionary (Xianggang Yinghan Shuangjie Falü Cidian 《香港英漢雙解法律詞典》, LexisNexis, 2005) and the Concise Hong Kong English-Chinese Legal Dictionary (Xianggang Jianming Yinghan Shuangjie Falü Cidian 《香港簡明英漢雙解法律詞典》, LexisNexis, 2005) also provide definitions, but no ratio decidendi. With a view to assisting the future development of the Hong Kong legal system which is based on common case law, Poon (2010, 93) proposes the following three-step method for creating a good legal dictionary:

To cater for Hong Kong people’s needs, a lexicographer has to compile a dictionary that is user-friendly. The first step requires a lexicographer to select the most representative cases that convey the meaning of a legal term and then summarize and translate the brief facts of the cases as well as the ratio decidendi into Chinese. The next step is to find out the definition of a legal term from statute and authorities. She then has to modify and/or expand this definition with the help of the information from the decided cases, which will give the local users a better understanding of a term and which, to some extent, may enable them to distinguish between two near-synonyms. Finally, a lexicographer has to render the terminology according to the meaning assigned by statute and case law, a translation that could more accurately reflect the legal meaning”.

Such a dictionary is yet to appear on the market. Nevertheless, as exemplified below, a translator should attempt to learn such skills, that is, to acquire knowledge from both statute and case law, in order to render legal terms in Hong Kong.

Concerning the study of Chinese legal terminology across the Chinese regions, Chan published three monographs on Chinese legal terminology under the Legal Translation Series of the City University of Hong Kong Press, namely, Falü Fanyi Xilie: Liang’an Sandi Heyuefa Zhuyao Cihui (《法律翻譯系列：兩岸三地合約法主要詞彙》, Legal Translation Series: Key Terms in Contract Law of Hong Kong, Mainland China and Taiwan, 2014), Falü Fanyi Xilie: Liang’an Sandi Qinquanfa Zhuyao Cihui (《法律翻譯系列：兩岸三地侵權法主要詞彙》, Legal Translation Series: Key Terms in Tort Law of Hong Kong, Mainland China and Taiwan, 2015), and lastly, Falü Fanyi Xilie: Liang’an Sandi Gongsifa Zhuyao Cihui (《法律翻譯系列：兩岸三地公司法主要詞彙》, Legal Translation Series: Key Terms in Company Law of Hong Kong, Mainland China and Taiwan, 2017). Serving as a reference for legal professionals, legal translators, and researchers and students in language and law, each of these three books compares and contrasts the functionally equivalent Chinese legal terminology of Hong Kong, Mainland and Taiwan in terms of their legal differences and similarities, together with an English-Chinese glossary based on statutes and legal dictionaries from the three regions. The books contain dozens of case summaries from the United Kingdom and Hong Kong that fall under the discussion of individual legal terms. For example, in the first book on contract law, there are Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256 relating to “unilateral offer”, Combe v Combe [1951] 2 KB 215 relating to “consideration”, and Krell v Henry [1903] 2 KB 740 relating to “frustration”.

4.1Full use of terminological data

Having documented the bilingual legislation and bilingual legal terminology in an electronic database, the inconsistent use of legal terminology, especially literally rendered terminology, can be resolved to a certain extent. Take for example summary judgment, which is officially translated as jianyi panyue (簡易判決) (simple and easy judgment). Summary judgment means a judgment obtained by a summary procedure governed by Order 14 of the Rules of the High Court (Cap. 4A), which allows the plaintiff to apply for and obtain a judgment without trial where no arguable or credible defence is raised. The Chinese term consists of jianyi (簡易) (simple and easy) and panjue (判決) (judgment), and a lay person reading this term may, taking it at face value, think it means that a judgment is simple and easy (either to obtain or read), and this clearly misses the procedural aspect which summary judgment is all about. By searching the electronic database, the law drafter can easily find the term summary conviction, which is officially translated as jianyi chengxu dingzui (簡易程序定罪). Here summary also refers to the procedure, and the official Chinese term consists of jianyi (簡易) (simple and easy), chengxu (程序) (procedure) and dingzui (定罪) (conviction) which rightly spells out the procedural aspect of the term. Therefore, based on this existing translation, summary judgment can be retranslated to jianyi chengxu panyue (簡易程序判決) by adding the word chengxu (程序) (procedure), so that the adjective jianyi (簡易) (simple and easy) modifies the procedure instead of the judgment, thus better reflecting the meaning of the term.

Likewise, the different translations of the term totality principle can also easily be standardized. Currently, the term is variously translated as zong xingqi yuanze (總刑期原則) (the principle of total sentencing term), zhengti liangxing yuanze (整體量刑原則) (the principle of overall sentencing), and zong panxing bude guozhong (總判刑不得過重) (the overall sentencing is not to be too heavy) (Cham 2019, 97). Although these Chinese translations are similar or the same in meaning, a lay person may think they refer to different concepts. While ruling out the third one which is a full sentence rather than a term, it would not be difficult to fix the Chinese translation of totality as zong or zhengti, and then standardize the translation by use of the electronic database. A quick search of e-Legislation reveals that there is currently one instance of the word total which is translated as zhengti (Section 16, Buildings Ordinance (Cap. 123)). Therefore, it would be more consistent to use zhengti liangxing yuanze as the standardized translation of totality principle. Another example is time-barred, which is officially translated as sangshi shixiao (喪失時效). Time-bar means that a legal action cannot be commenced after the expiry of the time period prescribed by legislation, that is, limitation (shixiao) (時效). As shixiao is not an everyday Chinese word, its meaning may be opaque to a lay person. It would be preferable to use a literal translation for the term time-bar such as shijian jinzhi (時間禁制) (time prohibition), by using the translation jinzhi found in other legislation (e.g. Section 33(1), Railways Ordinance (Cap. 519)) by e-Legislation. The verb time-barred can then be rendered with the addition of a Chinese verb shoudao (受到) (bound by) before.

4.2More use of descriptive method

Of the four methods adopted by the government for terminology creation, the method of compounding two very different morphemes is probably one that should be used with great caution. When literal translation cannot be used to produce meaning-for-meaning transfer, the descriptive or paraphrasing method becomes more critical to produce a transparent term as long as the addition is short. This method is particularly helpful for the English legal terms that are ambiguous per se and require additional explanation. Such English legal terms may originate from the judiciary and have no official Chinese equivalents as they have not yet found their way into legislation. In the absence of the screening function of e-Legislation, legal practitioners are left to provide their own literal or liberal translations for such terms. Translations provided on a judicial level, that is, by judges, are often regarded as authoritative, but even translations among judges can be inconsistent. For example, in criminal sentencing, the term starting point has been variously translated as liangxing jizhun (量刑基準) (benchmark of sentencing), liangxing qidian (量刑起點) (starting point of sentencing) and qixingdian (起刑點) (starting point of sentence) (Cham 2019, 96–97). Since starting point as a criminal term refers to the increase or decrease of the length of a sentence, jizhun (基準) (bench mark) better expresses the original meaning than qidian (起點) (starting point).

Another example which requires an explanatory Chinese translation is loss of time, another term from the realm of criminal law. By way of background, Section 83W(1) of the Criminal Procedure Ordinance (Cap. 221) deals with the effect of an appeal on the appellant’s sentence by providing that: “The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject.” In recent years, there has been an increasing number of wholly unmeritorious appeals, and to curtail the problem, the Court of Appeal has, in appropriate cases, been exercising its power under Section 83W by ordering that the time spent by an appellant in custody pending a wholly unmeritorious appeal shall not be reckoned as part of the appellant’s sentence, effectively increasing his or her length of sentence. The Court of Appeal calls such an order a loss of time order. Now the term loss of time appears in Forms XII and XIII under the Criminal Appeal Rules (Cap. 221A), in which it is literally translated as sunshi shijian (損失時間), with sunshi being a fixed Chinese translation of the frequently-used legal term loss. However, sunshi shijian is a translation that is inherent from the perspective of an appellant. In practice, some legal practitioners and judges have translated it as jianshi (減時) (subtract time), which is essentially more compatible with the collocation of order issued from a judge. From the perspective of a judge, the intent of the order is a proactive subtraction of the time spent by an appellant in custody from the sentence term, rather than a passive loss of time. Despite this customary use by the legal profession, a lay person may take subtract time literally and misunderstand the term to mean subtracting the length of sentence which obviously runs counter to the objective of a loss of time order. Therefore an addition of jiya shijian (羈押時間) (custody time) may be made to the translation, producing terms such as jianshao jiya shijian ling (減少羈押時間令) or jiya shijian koujian ling (羈押時間扣減令). Of course it would be clearest to render loss of time as xialing shangsuren de jiya shijian bude jisuan zai xingqi zhinei) (下令上訴人的羈押時間不得計算在刑期之內) as it is in the Judiciary website (https://​www​.judiciary​.hk​/zh​/court​_services​_facilities​/hc​.html), but the sentence essentially reproduces the relevant part of Section 83W(1) and is more a description or explanation than a specialized term in a condensed form.

4.3Conformity with Chinese grammar

On a legislative level where the Hong Kong bilingual system began, there are many ungrammatical Chinese sentences and legal terms. One such issue arises from the misuse of the properties of noun-verb fluidity in Chinese. For some words, there is no overt marker for parts-of-speech and a given form can enjoy categorial fluidity. For example, sunshi (損失) can be to lose or (to suffer) loss. However, in some Hong Kong legislation, a number of Chinese verbs that are usually not used as nouns have been converted to nouns. Apparently, it is a result of the technique of consistency of terminology in technical translation but the usage brings unnaturalness to the Chinese language. In a study by Chan (2007), in Sale of Goods Ordinance (Cap. 26), the verb shoumai (售賣) (sale) is always used as a noun, as in yi zong shoumai (一宗售賣) (a sale) (e.g. Sections 3(3) & 14(1)(a)) and yi zong huopin de shoumai (一宗貨品的售賣) (a sale of goods) (Section 15(2)). Other examples are chuzhi (處置) (disposition) (Section 37(6)), bujiu (補救) (remedies) (Section 42), and guanyou (管有) (possession) (e.g. Sections 2(1), 14(1)(b), 27(2), 31(1), 31(3), 43(1)).

This grammatical problem is somewhat addressed in the judgments in the use of very frequently-used words. In a survey of 15 English-Chinese judgments from the Court of Final Appeal in Hong Kong (2004–2006 and 2009–2012), hold is rendered as 226 instances of caiding (裁定) and eight instances of caijue (裁決) as a noun. Consider the following examples:

Another example is decide, which is also mostly rendered as caiding (裁定) as a verb and caijue (裁決) as a noun:

The translation of English verb-object constructions and abstract nouns into Chinese presents a significant issue for law drafters in Hong Kong. While translators have attempted to use amplification to deal with this issue and produce grammatically correct Chinese words, this solution can give rise to its own problems by changing the scope of the original words. Although the following examples are from judgments, their potential to become legal terms in an ordinance makes the grammatical phenomenon worthy of examination.

The first example occurs in the context of the Places of Public Entertainment Ordinance (Cap.172). In short, the Ordinance requires a person to obtain a license in order to use a place of public entertainment, and public entertainment is defined in Section 2 as “any entertainment [including events, activities, etc.] to which the general public is admitted with or without payment”. In a Hong Kong Court of Final Appeal case T v Commissioner of Police (2014) 17 HKCFAR 593, the question arose as to whether a license was needed to organize a dance show in a pedestrian precinct in a crowded district in Hong Kong, and this turned upon whether the dance show was an entertainment to which the public was admitted. The five-member Court engaged in an extensive discussion of the word admitted and its official Chinese counterpart ruchang (入場), which literally means enter a venue. By a 3:2 majority, the Court held that the organizer of the dance show did not need a license. The majority judgment, placing great importance on the use of the word chang (場) (venue), held that the locality of the event was a key factor, and it meant that the control exercised by the organizer over who could or could not attend the event was crucial. As the organizer of the dance show in question had control over the spectators, no license was required. The minority judgment, on the other hand, held that the key factor was not the locality but the nature of the event. The two judges held that there was a difference in meaning between admitted and its Chinese counterpart, and, applying Section 10B(3) of the Interpretation and General Clauses Ordinance (quoted above), held that the English meaning best reconciled the two texts (Cheung 2019, 27–32).

The addition of the word chang (場) (venue) in the official Chinese term is understandable because, in the context of admitting someone to an entertainment, a literal translation of admitted as jinru (進入) does not, in the Chinese language, collocate with entertainment (yule) (娛樂). Furthermore, the drafter might have been influenced by the overall intent of the Ordinance, namely the licensing for use of a place of public entertainment, and hence found it natural and logical to translate admit as ruchang (入場) (i.e. with a venue/place added). However, as demonstrated in T v Commissioner of Police, an unintended (if not also undesirable) result was produced in which an event or activity which should have been subject to licensing requirements (for regulating order and protecting public safety) was in the end free from such requirements. In the absence of an allowed appeal (and no further appeal of a judgment of the Court of Final Appeal is allowed) and any subsequent case involving the same point of law, T v Commissioner of Police remains good law. In light of the above, it is advised that when translating an English verb that takes an object of a broad meaning such as entertainment, a Chinese verb with a wide meaning should be adopted, such as runei (入內) (go inside), where the adverb nei refers to an abstract locality.

The second example, which involves the abstract English noun addition, has led to even more absurd consequences. Section 35(a) of the now repealed Food Business (Urban Council) By-laws (Cap. 132Y) prohibits a licensee of food premises from (among other things) making any addition to the matters specified in the approved plan in respect of the premises. One such licensee, Madam Tam Yuk Ha was prosecuted twice for contravening Section 35(a), and in both instances Madam Tam was accused of placing things like metal trays and other items on the pavement outside her shop. In both prosecutions, the question arose as to the meaning of the word addition under Section 35(a) and its official Chinese counterpart zengjian gongcheng (增建工程), which is made up of zengjian (增建) (adding and constructing/building) and gongcheng (工程) (project). In the first prosecution (Judgment HKSAR v Tam Yuk Ha, HCMA 933/1996), Madam Tam was convicted before the magistrate, but on appeal her conviction was quashed. The appellate court held that there was a difference in meaning between the two texts, with the English text being ambiguous but the Chinese text being clear and plain, in which case the only reasonable step for the court to take was to give effect to the text which favoured Madam Tam. The court also held that the placing of metal trays and so on could not possibly constitute zengjian gongcheng (增建工程) (added constructing/building project). This decision looked sensible enough, but in the second prosecution which took place less than one year later (Judgment HKSAR v Tam Yuk Ha, HCMA 1385/1996), Madam Tam was again convicted before the magistrate, and her appeal was dismissed. A differently constituted appellate court interpreted the Chinese term to mean additionally erected work, and in that sense there was no difference in meaning between the English and Chinese texts. The court also considered that the appellate court in the first prosecution “had attached too narrow a meaning to the characters zengjian gongcheng (增建工程) in the Chinese text, which were intended to refer to the words ‘alteration or addition’ in the English text.” (Judgment HKSAR v Tam Yuk Ha, HCMA 1385/1996) The court held that what Madam Tam did certainly constitute an addition to the approved plan and indeed to the premises. Her conviction was accordingly affirmed (Cheung 2019, 32–34).

The government, apparently aware of the two conflicting court decisions, responded by amending the Chinese term. In the equivalent provision now in force, namely Section 34D(1) of the Food Business Regulation (Cap. 132X), the Chinese term for addition is zengtian (增添), with both Chinese characters meaning add. The removal of (工程) (project) serves to take away a possible discrepancy between the former Chinese term and addition and also to advance the regulatory objective of the legislation. Linguistically speaking, it is grammatically incorrect to translate addition as zengtian because it is a verb in Chinese. Acceptable alternatives would be tianzhi (添加), which is both a verb and a noun, or tianjia wu (添加物) (additional thing).