Common Law in an Uncommon Courtroom: Judicial Interpreting in Hong Kong 2018034740, 2018035225, 9789027201911, 9789027263162

Table of contents :
Common Law in an Uncommon Courtroom
Editorial page
Title page
Copyright page
Table of contents
List of tables
List of figures
Transcription symbols and abbreviations used in this book
Abbreviations used in the transcripts and in this book
Acknowledgements
Foreword
1. Introduction
1. Research in court interpreting
2. The Hong Kong courtroom
3. Motivation of the study
4. Scope and aims of the study
5. The data
6. Summary of chapter contents
2. The practice of court interpreting in Hong Kong
1. Introduction
2. Court interpreting in the early British colonial years
3. The birth of court interpreting and the first court interpreter in Hong Kong
4. The lack of competent interpreters and the quality of interpretation
5. The Student Interpreter Scheme
6. Court interpreting from the 1970’s to 1997
6.1 The enactment of the Official Languages Ordinance in 1974
6.2 The resistance to the use of Chinese in court by the legal arena
6.3 The use of Chinese in the Magistrates’ Courts and the role of the interpreter
7. Post-colonial court interpretation in Hong Kong
7.1 Increasing use of Chinese in the courts
7.2 The need to work with bilingual court personnel
7.3 Implementation of the bilingual court reporting system
8. The Court Interpreter grade
8.1 The creation of the Court Interpreter grade
8.2 Strength of the Court Interpreter grade
8.3 Entry requirements for court interpreters
8.4 Training for court interpreters
8.5 The deployment of court interpreters
8.6 The need for relay interpreting when a third language is involved
8.7 Remuneration and career prospects of court interpreters
9. Conclusion
3. Modes of interpretation and audience roles in interpreted trial discourse
1. Language of the court and of court actors in a common bilingual setting
2. Language of the court and of court actors in the uncommon bilingual Hong Kong courtroom
3. Trial procedure in the adversarial common-law courtroom
4. Modes of interpretation used in the courtroom
5. Audience roles in monolingual court proceedings
6. Audience roles in interpreter-mediated trial discourse in a bilingual courtroom
6.1 The interpreter’s audience and the audience roles in court where the interpreter is the only bilingual
6.2 The interpreter’s audience and the audience roles in the bilingual Hong Kong courtroom
7. Conclusion
4. The interpreter as one of the bilinguals in court
1. Power and control in monolingual and in interpreted court proceedings
2. Bilingualism, participant roles and power of the interpreter and of other court actors
2.1 Power and participant roles of court actors with the interpreter as one of the bilinguals
2.1.1 Increase in audience roles of bilingual counsel
2.1.2 Diminished role of the interpreter
3. Strategic use of language in the adversarial courtroom
4. Polysemy, ambiguity and context in court interpreting
4.1 The issue: Meanings of ‘saam1’
4.2 Prosecution case
4.3 Defence case
4.4 The interpreter’s strategy
4.5 The cross-examiner’s strategy
5. The interpreter’s dilemma
6. Conclusion
5. Interpreter intervention in witness examination
1. The power of the interpreter as the only bilingual in the triadic communication
2. Interpreter-initiated turns – the norm
3. Interpreter-initiated turns – quantitative results
4. Typology of interpreter-initiated turns
4.1 To seek confirmation
4.2 To seek clarification
4.3 To seek further information
4.4 To coach the witness
4.5 To respond to the witness
4.6 To prompt the witness
4.7 To inform the court of the need to finish an interrupted interpretation
4.8 To acknowledge the understanding of the witness’s utterance
4.9 To point out a speaker mistake
5. Impact of interpreter-initiated turns
5.1 The impact on participant roles of court actors
5.2 The impact on the power of the monolingual counsel/judge
5.3 The impact on the evaluation of counsel, the witness and the interpreter
6. Conclusion
6. Judges’ intervention in witness examination
1. Accuracy in court interpreting
2. A judge’s role in witness examination in a common-law courtroom
3. Judges’ intervention in witness examination
4. Data and methodology
5. Findings and analysis
5.1 Judges’ intervention to clarify with witnesses
5.2 Judges’ intervention to clarify with counsel or to inject a comment
6. Impact on quality of interpreting and implications for NES participants’ access to the trial
7. Conclusion
7. Chinese witnesses testifying in English
1. Mind the gap: Inequality before the law
2. Second language or dialect speakers in court
3. Witnesses and interpretation in Hong Kong courts
4. The court case
5. Analytical tools and signals of communication problems
6. Data analysis
6.1 Decoding problems
6.1.1 Absent or non-responsive answer
6.1.2 Responding with apologies
6.1.3 Clarifications requests (with or without apologies)
6.2 Encoding problems
6.2.1 Grammatical errors and mispronunciation
6.2.2 Short answers or minimum feedback
7. Summary and conclusion
8. English trials heard by Chinese jurors
1. Introduction
1.1 Concern about jury comprehension
1.2 Studies of jury comprehension in common-law legal systems
2. The issue of jury comprehension in Hong Kong
3. The jury system in Hong Kong
4. The bilingual Hong Kong courtroom and jury’s access to the interpreted trial discourse
5. The survey study by Duff et al. (1992)
5.1 Background information about the respondents
5.2 Findings about their comprehension of the court proceedings
5.3 Comprehension and verdicts
5.4 Suggestions from respondents
6. Observations from the authentic court proceedings
6.1 Request for exemption from jury service for reason of poor English
6.2 Witnesses testifying in English and jury’s access to the evidence
6.3 Legalistic features of jury instructions identified – implications for Chinese jurors
6.4 Mumbling and fast speech as aggravating factors
6.5 Reading of the jury oath/affirmation
6.6 Jury’s comprehension problem of legal terminology
7. Appeal against a jury verdict
7.1 Inconsistency of verdicts and Court of Appeal’s response
7.2 The jury’s confusion over the verdicts
7.3 Conviction quashed
8. Conclusion and further research
9. Who is speaking?
1. First-person interpreting as the norm
2. Third-person interpreting as a deviation from the norm
3. Data, methodology and quantitative results
4. Findings and analysis
4.1 Substitution of judges’ and counsel’s first-person reference with third-person reference in Chinese interpretation
4.2 Ellipsis/omission of judges’/counsel’s first-person reference in Chinese interpretation
4.3 A shift from first-person to third-person interpreting
5. Findings and disassociation theory
6. Power asymmetry in the adversarial courtroom and hypotheses
7. Questionnaire results and analysis
7.1 Different interpreting styles for different speakers
7.2 Content of utterances and interpreting styles
7.3 Rationale behind the styles of interpreting
7.3.1 Psychological factor
7.3.2 Pragmatic consideration
7.3.3 Inherited practice
7.3.4 A self-protective device
8. Impact of third-person interpreting
8.1 Impact on the participant role, invisibility and neutrality of the interpreter
8.2 Impact on illocutionary force of the speech act
8.3 Ambiguity associated with the omission of first-person reference in Chinese interpretation
9. Conclusion
10. Conclusions
1. Summary of findings
1.1 English trials in a Chinese dominant society and modes of interpreting in court
1.2 Limitations of ‘chuchotage’ in the Hong Kong courtroom
1.3 Complexity of audienceship
1.4 Power of bilingual participants and of the court interpreter
1.5 Impact of interpreter intervention on monolingual court actors
1.6 Judges’ intervention in witness examination and its impact on accuracy of court interpreting
1.7 Disadvantage of non-native English-speaking witnesses testifying in English and the impact on other participants in court
1.8 The issue of jury comprehension in the Hong Kong courts
1.9 Different interpreting styles for different speakers
2. Contributions of the present study
2.1 Contribution to existing literature on court interpreting
2.2 Contribution to translation and interpreting and sociolinguistic studies
2.3 Contributions to forensic linguistics and social benefits of the study
3. Pedagogical implications
3.1 Coping with legal language and strategic use of language in court
3.2 Coping with challenges
3.3 Interpreting for the record
3.4 Dealing with lexico-grammatical differences
3.5 Consistency in interpreting styles
4. Recommendations for best practice in the courtroom
4.1 Team interpreting and the use of simultaneous interpreting equipment
4.2 Training for court personnel
4.2.1 Recognise the interpreter as a team member
4.2.2 Pause at regular intervals for consecutive interpretation
4.2.3 Avoid interruptions, rapid and overlapping speech
4.2.4 Use plain English where possible
5. Institutional and administrative recommendations
5.1 The need to raise the entry requirements
5.2 The need to improve remuneration and career prospects
5.3 The need to make pre-service training mandatory
5.4 The need to restructure the Court Interpreter grade in Hong Kong
5.5 The need to review the deployment mechanism
6. Recommendations for further research
6.1 Participation status of jurors in an interpreter-mediated trial in the Hong Kong courtroom
7. Concluding remarks
References
Appendix 1. Timeline of the use of Chinese in courts
Appendix 2. Percentage of criminal cases conducted in Chinese in various courts
Appendix 3. Scale points for Court Interpreter and Simultaneous Interpreter under the Master Pay Scale for Civil Servants
Appendix 4. Transcript of the exchanges between the judge, the court clerk and the foreman of the jury, interspersed with remarks of the defence counsel
Appendix 5. Questionnaire on ‘The use of direct or reported speech in court interpreting’
The use of direct or reported speech in court interpreting
Subject index

Citation preview

BENJAMINS ■

T R A N S L AT I O N

Common Law in an Uncommon Courtroom Judicial interpreting in Hong Kong Eva N.S. Ng

■

LIBR ARY

Common Law in an Uncommon Courtroom

Benjamins Translation Library (BTL) issn 0929-7316

The Benjamins Translation Library (BTL) aims to stimulate research and training in Translation & Interpreting Studies – taken very broadly to encompass the many different forms and manifestations of translational phenomena, among them cultural translation, localization, adaptation, literary translation, specialized translation, audiovisual translation, audio-description, transcreation, transediting, conference interpreting, and interpreting in community settings in the spoken and signed modalities. For an overview of all books published in this series, please see www.benjamins.com/catalog/btl

General Editor

Honorary Editors

Roberto A. Valdeón

Yves Gambier

University of Oviedo

Associate Editor Franz Pöchhacker University of Vienna

University of Turku & Immanuel Kant Baltic Federal University

Gideon Toury† Tel Aviv University

Advisory Board Cecilia Alvstad

Christopher D. Mellinger

Georges L. Bastin

Jan Pedersen

Dirk Delabastita

Luc van Doorslaer

Daniel Gile

África Vidal

Krisztina Károly

Meifang Zhang

University of Oslo University of Montreal University of Namur Université Paris 3 - Sorbonne Nouvelle Eötvös Lorand University

University of North Carolina at Charlotte Stockholm University University of Tartu & KU Leuven University of Salamanca University of Macau

Volume 144 Common Law in an Uncommon Courtroom. Judicial interpreting in Hong Kong by Eva N.S. Ng

Common Law in an Uncommon Courtroom Judicial interpreting in Hong Kong

Eva N.S. Ng The University of Hong Kong

John Benjamins Publishing Company Amsterdam / Philadelphia

8

TM

The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences – Permanence of Paper for Printed Library Materials, ansi z39.48-1984.

doi 10.1075/btl.144 Cataloging-in-Publication Data available from Library of Congress: lccn 2018034740 (print) / 2018035225 (e-book) isbn 978 90 272 0191 1 (Hb) isbn 978 90 272 6316 2 (e-book)

© 2018 – John Benjamins B.V. No part of this book may be reproduced in any form, by print, photoprint, microfilm, or any other means, without written permission from the publisher. John Benjamins Publishing Company · https://benjamins.com

Table of contents

List of tables List of figures Transcription symbols and abbreviations used in this book Abbreviations used in the transcripts and in this book Acknowledgements Foreword Chapter 1 Introduction 1. Research in court interpreting  1 2. The Hong Kong courtroom  3 3. Motivation of the study  4 4. Scope and aims of the study  5 5. The data  6 6. Summary of chapter contents  7

xiii xv xvii xix xxi xxiii 1

Chapter 2 11 The practice of court interpreting in Hong Kong 1. Introduction  11 2. Court interpreting in the early British colonial years  12 3. The birth of court interpreting and the first court interpreter in Hong Kong  12 4. The lack of competent interpreters and the quality of interpretation  13 5. The Student Interpreter Scheme  15 6. Court interpreting from the 1970’s to 1997  18 6.1 The enactment of the Official Languages Ordinance in 1974  18 The resistance to the use of Chinese in court by the legal arena  18 6.2 6.3 The use of Chinese in the Magistrates’ Courts and the role of the interpreter  20 7. Post-colonial court interpretation in Hong Kong  20 7.1 Increasing use of Chinese in the courts  20 7.2 The need to work with bilingual court personnel  21 7.3 Implementation of the bilingual court reporting system  22

vi

Common law in an uncommon courtroom

8.

9.

The Court Interpreter grade  24 The creation of the Court Interpreter grade  24 8.1 8.2 Strength of the Court Interpreter grade  24 Entry requirements for court interpreters  26 8.3 8.4 Training for court interpreters  27 8.5 The deployment of court interpreters  30 The need for relay interpreting when a third language is 8.6 involved  33 8.7 Remuneration and career prospects of court interpreters  37 Conclusion  38

Chapter 3 Modes of interpretation and audience roles in interpreted trial discourse 39 1. Language of the court and of court actors in a common bilingual setting  39 2. Language of the court and of court actors in the uncommon bilingual Hong Kong courtroom  40 3. Trial procedure in the adversarial common-law courtroom  41 4. Modes of interpretation used in the courtroom  42 5. Audience roles in monolingual court proceedings  43 6. Audience roles in interpreter-mediated trial discourse in a bilingual courtroom  44 6.1 The interpreter’s audience and the audience roles in court where the interpreter is the only bilingual  45 6.2 The interpreter’s audience and the audience roles in the bilingual Hong Kong courtroom  46 7. Conclusion  48 Chapter 4 49 The interpreter as one of the bilinguals in court 1. Power and control in monolingual and in interpreted court proceedings  49 2. Bilingualism, participant roles and power of the interpreter and of other court actors  50 Power and participant roles of court actors with the interpreter as 2.1 one of the bilinguals  51 3. Strategic use of language in the adversarial courtroom  56 4. Polysemy, ambiguity and context in court interpreting  57 4.1 The issue: Meanings of saam1  60 4.2 Prosecution case  60

Table of contents vii



5. 6.

4.3 Defence case  61 The interpreter’s strategy  61 4.4 4.5 The cross-examiner’s strategy  62 The interpreter’s dilemma  67 Conclusion  70

Chapter 5 Interpreter intervention in witness examination 73 1. The power of the interpreter as the only bilingual in the triadic communication  73 2. Interpreter-initiated turns – the norm  74 3. Interpreter-initiated turns – quantitative results  75 4. Typology of interpreter-initiated turns  77 4.1 To seek confirmation  79 4.2 To seek clarification  80 4.3 To seek further information  81 4.4 To coach the witness  81 4.5 To respond to the witness  82 4.6 To prompt the witness  84 4.7 To inform the court of the need to finish an interrupted interpretation  84 4.8 To acknowledge the understanding of the witness’s utterance  85 4.9 To point out a speaker mistake  85 5. Impact of interpreter-initiated turns  86 5.1 The impact on participant roles of court actors  86 5.2 The impact on the power of the monolingual counsel/judge  87 5.3 The impact on the evaluation of counsel, the witness and the interpreter  89 6. Conclusion  90 Chapter 6 91 Judges’ intervention in witness examination 1. Accuracy in court interpreting  91 2. A judge’s role in witness examination in a common-law courtroom  92 3. Judges’ intervention in witness examination  93 4. Data and methodology  94 5. Findings and analysis  95 5.1 Judges’ intervention to clarify with witnesses  96 5.2 Judges’ intervention to clarify with counsel or to inject a comment  97

viii Common law in an uncommon courtroom

6. 7.

Impact on quality of interpreting and implications for NES participants’ access to the trial  108 Conclusion  109

Chapter 7 Chinese witnesses testifying in English 1. Mind the gap: Inequality before the law  111 2. Second language or dialect speakers in court  113 3. Witnesses and interpretation in Hong Kong courts  114 4. The court case  115 5. Analytical tools and signals of communication problems  116 6. Data analysis  117 6.1 Decoding problems  117 6.2 Encoding problems  123 7. Summary and conclusion  125

111

Chapter 8 129 English trials heard by Chinese jurors 1. Introduction  129 1.1 Concern about jury comprehension  129 1.2 Studies of jury comprehension in common-law legal systems  130 2. The issue of jury comprehension in Hong Kong  132 3. The jury system in Hong Kong  133 4. The bilingual Hong Kong courtroom and jury’s access to the interpreted trial discourse  134 5. The survey study by Duff et al. (1992)  135 Background information about the respondents  135 5.1 Findings about their comprehension of the court proceedings  135 5.2 Comprehension and verdicts  136 5.3 Suggestions from respondents  137 5.4 6. Observations from the authentic court proceedings  137 6.1 Request for exemption from jury service for reason of poor English  137 6.2 Witnesses testifying in English and jury’s access to the evidence  138 Legalistic features of jury instructions identified – implications for 6.3 Chinese jurors  138 Mumbling and fast speech as aggravating factors  140 6.4 6.5 Reading of the jury oath/affirmation  141 Jury’s comprehension problem of legal terminology  141 6.6



7.

8.

Table of contents

Appeal against a jury verdict  142 Inconsistency of verdicts and Court of Appeal’s response  142 7.1 7.2 The jury’s confusion over the verdicts  143 Conviction quashed  145 7.3 Conclusion and further research  145

Chapter 9 Who is speaking? 147 147 Court interpreters’ use of first-person versus third-person interpreting 1. First-person interpreting as the norm  147 2. Third-person interpreting as a deviation from the norm  149 3. Data, methodology and quantitative results  152 4. Findings and analysis  154 4.1 Substitution of judges’ and counsel’s first-person reference with third-person reference in Chinese interpretation  154 4.2 Ellipsis/omission of judges’/counsel’s first-person reference in Chinese interpretation  158 4.3 A shift from first-person to third-person interpreting  159 5. Findings and disassociation theory  161 6. Power asymmetry in the adversarial courtroom and hypotheses  162 7. Questionnaire results and analysis  162 Different interpreting styles for different speakers  162 7.1 7.2 Content of utterances and interpreting styles  163 Rationale behind the styles of interpreting  163 7.3 8. Impact of third-person interpreting  166 8.1 Impact on the participant role, invisibility and neutrality of the interpreter  166 Impact on illocutionary force of the speech act  167 8.2 Ambiguity associated with the omission of first-person reference in 8.3 Chinese interpretation  167 9. Conclusion  168 Chapter 10 Conclusions 171 1. Summary of findings  171 1.1 English trials in a Chinese dominant society and modes of interpreting in court  171 1.2 Limitations of chuchotage in the Hong Kong courtroom  171 1.3 Complexity of audienceship  172 1.4 Power of bilingual participants and of the court interpreter  172

ix

x

Common law in an uncommon courtroom

1.5

2.

3.

4.

5.

6.

7.

Impact of interpreter intervention on monolingual court actors  173 1.6 Judges’ intervention in witness examination and its impact on accuracy of court interpreting  173 1.7 Disadvantage of non-native English-speaking witnesses testifying in English and the impact on other participants in court  174 The issue of jury comprehension in the Hong Kong courts  174 1.8 Different interpreting styles for different speakers  174 1.9 Contributions of the present study  175 2.1 Contribution to existing literature on court interpreting  175 2.2 Contribution to translation and interpreting and sociolinguistic studies  176 2.3 Contributions to forensic linguistics and social benefits of the study  176 Pedagogical implications  177 3.1 Coping with legal language and strategic use of language in court  177 3.2 Coping with challenges  177 3.3 Interpreting for the record  178 3.4 Dealing with lexico-grammatical differences  178 3.5 Consistency in interpreting styles  179 Recommendations for best practice in the courtroom  179 4.1 Team interpreting and the use of simultaneous interpreting equipment  179 4.2 Training for court personnel  181 Institutional and administrative recommendations  184 5.1 The need to raise the entry requirements  184 The need to improve remuneration and career prospects  185 5.2 5.3 The need to make pre-service training mandatory  185 5.4 The need to restructure the Court Interpreter grade in Hong Kong  186 5.5 The need to review the deployment mechanism  187 Recommendations for further research  188 6.1 Participation status of jurors in an interpreter-mediated trial in the Hong Kong courtroom  188 6.2 Contrastive study of the discourse of the witnesses’ testimony in a monolingual Cantonese trial with that in a bilingual English trial  188 Concluding remarks  189



Table of contents

References

191

Appendix 1 Timeline of the use of Chinese in courts

205

Appendix 2 Percentage of criminal cases conducted in Chinese in various courts

207

Appendix 3 Scale points for Court Interpreter and Simultaneous Interpreter under the Master Pay Scale for Civil Servants

209

Appendix 4 Transcript of the exchanges between the judge, the court clerk and the foreman of the jury, interspersed with remarks of the defence counsel

211

Appendix 5 Questionnaire on The use of direct or reported speech in court interpreting

217

Subject index

221

xi

List of tables

Table 1.1 List of cases and duration of recordings

6

Table 3.1 Languages spoken by court actors in a common bilingual courtroom

40

Table 3.2 Languages spoken by court actors in an English trial in Hong Kong

40

Table 3.3 Institutional roles and audience roles in a monolingual trial

44

Table 3.4 Languages and audience roles of court actors in chuchotage

45

Table 3.5 Languages and audience roles in a common bilingual courtroom

46

Table 3.6 Institutional roles and audience roles in witness examination through an interpreter with and without the presence of bilingual court actors

47

Table 5.1 Turn distribution in Mandarin-speaking first prosecution witness’s (PW1) examination-in-chief and cross-examination, case 8, Murder

76

Table 5.2 Interpreter-initiated turns (IITs) in first prosecution witness’s (PW1) examination-in-chief and cross-examination, case 8, Murder 

76

Table 5.3 Interpreter-initiated turns (IITs) in defendant’s examination-inchief and cross-examination, case 8, Murder

77

Table 5.4 Interpreter-initiated turns (IITs) in first prosecution witness’s (PW1) examination-in-chief and cross-examination, case 8, Murder 

78

Table 6.1 Quantitative results of judges’ turns in examination-in-chief of prosecution witnesses (PWs) in nine trials

95

Table 7.1 Statistics of apologies, case 8, Murder

119

Table 9.1 First-person references uttered by judges and counsel in English and their renditions in Chinese

153

List of figures

Figure 3.1 Flowchart of criminal trial procedure in a common-law courtroom

41

Figure 6.1 Courtroom layout in the High Court of Hong Kong

99

Transcription symbols and abbreviations used in this book

Symbols used in the transcripts Symbol Symbol Meaning used in used in English text Chinese text

Example

=

=

Latched utterances (i.e. no pause between turns)

I: 係咪呀= W: =係

—

——

A sudden cut-off of the current sound/truncated sound

I said to him. I said— 我就說——

-,

-，

incomplete word/false start

With resp-, right, with respect. 佢話我大-，er我哋大家做 個朋友

CAPITALS

楷體

A louder voice relative to the adjacent talk

OF COURSE, IT WAS? 你的，你聽我說好不好？

boldface

黑體

Focus on elements under discussion

I suggest to you 律師向你指出

::

::

Prolongation of the immediO::kay. ately preceding sound, indicated by the length of the row of colons

(3)

(3)

Length of a pause in seconds

Can you (3) can you tell the court what happened next?

(.)

(.)

A brief pause of less than a second

I (.) walked over to the suspect.

(word)

(詞)

Indistinct possible hearings

The tenant had one hand on the handle and one hand on the blade, with the sharp point (laying downwards)? 他們（在）

(xxx)

(xxx)

Inaudible utterance

用上海話麼，(xxx)就講囉



Transcriber’s description

As, as I said, Your Honour, this is what happens *. (continued)

xviii Common law in an uncommon courtroom Symbol Symbol Meaning used in used in English text Chinese text

Example

[

[

Start of an interruption and the utterance which is interrupted

J: I suggest we take a morning break for you to [cool down. D: [Well. OK.

…

…

Indication of an unfinished utterance or continuation of an unfinished utterance from the previous turn

DC: By the time you reached … W: Yeah. DC: … his brain with your surgery

*  The slash in marks the end of the soft utterance.

Abbreviations used in the transcripts and in this book

Abbreviation CA CFI CI CLO CP CSQ D DARTS DC HKSAR I IIT ISQ I/T J JR LEP LOTE NES NNES OLO PC PG PW SI SL TL W

Description Conversation Analysis Court of First Instance (of the High Court) Consecutive Interpretation/Interpreting Chinese Language Officer Cooperative Principle Confirmation-seeking question Defendant Digital Audio Recording and Transcription System Defence Counsel Hong Kong Special Administrative Region Interpreter Interpreter-initiated turn Information-seeking question Interpreter/Translator Judge/Magistrate Jury/Juror Limited English Proficiency Language other than English Non-English-speaking/speaker Non-native English-speaking/speaker Official Languages Officer Prosecution Counsel/Prosecutor Public Gallery Prosecution Witness Simultaneous Interpretation/Interpreting Source Language Target Language Witness

Acknowledgements

This book would not have come into existence without the support and contribution of many people. First and foremost, I am indebted to the Honourable Madam Justice Queeny Au-yeung, who, in her capacity as the High Court Registrar of Hong Kong, kindly granted permission for me to access the audio recordings of nine criminal trials from three levels of courts in Hong Kong in 2008. Without her visionary support, this authentic data-driven study would not have been possible. The transcription of the bulk of the audio data, totalling over 100 hours of recording time, was supported by three grants of The University of Hong Kong – the Leung Kau Kui Research and Teaching Endowment Fund (2009), and the Teaching Development Grants (2014 and 2016), to which I owe my immense gratitude. My thanks also go to my two doctoral thesis supervisors at Aston University in the United Kingdom, Professor Malcolm Coulthard and Dr Krzysztof Kredens, for their insightful advice, enlightenment and guidance during the whole process of my research project, which forms the basis of this book. I would also like to thank the two anonymous reviewers for their meticulous efforts in reviewing my manuscript and for their judicious and perceptive comments and suggestions, most of which I have adopted in my revision. Their inputs are invaluable and have made this book much more readable. My special thanks go to Professor Holly Mikkelson of the Middlebury Institute of International Studies at Monterey, for writing a fabulous foreword for this book. A foreword by a renowned scholar in court interpreting like Professor Holly Mikkelson is an invaluable addition to the book and is certainly the icing on the cake. My thanks are also due to Dr David Atkinson of Auckland University of Technology in New Zealand, for the hard work of proofreading the manuscript. Any errors that remain are my sole responsibility. The painstaking transcription work of the audio recordings was undertaken by my many Research Assistants over the past few years, to whom I am thankful. All the transcripts have been checked against the recordings by myself. The responsibility for any errors contained herein is mine and mine alone. My current Research Assistant, Miss Haidée Ng, also deserves my special thanks for her help with the reference citations and the bibliography of this book.

xxii Common law in an uncommon courtroom

I am also grateful to the editorial staff at John Benjamins, who have been efficient, patient and supportive throughout. Last but not least, I must thank my family for their unwavering support for my academic pursuit over the years.

Foreword

I am honoured to have been asked to write the foreword for this fascinating and highly relevant book. Fascinating, because it explores the complexities of a unique environment: the bilingual courts of Hong Kong. Relevant, because the bilingual courtroom is now a worldwide phenomenon that must be understood fully if justice is to be imparted to all parties, regardless of their language proficiency. I was already familiar with Dr. Eva N. S. Ng’s work, having first been captivated by the paper she presented at the Critical Link 5 conference (E. Ng 2009). That first glimpse of the unique situation in Hong Kong piqued my curiosity, and I made it a point to seek out anything written by Dr. Ng thereafter. The book you have in your hands represents years of painstaking work examining transcripts of bilingual proceedings and applying a variety of sociolinguistic theories to reach critical conclusions with implications that extend far beyond Hong Kong. Once I started reading it, I couldn’t put it down. Dr. Ng’s engaging writing style makes this work accessible not only to specialists in interpreting studies, sociolinguistics and law, but also to anyone with an interest in the dynamics of interlingual, intercultural communication and the swordplay of the adversarial courtroom. Her research yields rich data and raises new questions that will provide fodder for additional studies in the years to come. Hong Kong is not the only bilingual territory in the world; Canada and Switzerland are but two examples of countries with more than one official language and with bilingual or multilingual legal systems. What distinguishes Hong Kong is that, because of its colonial legacy of English-language court proceedings, when the court chooses to conduct business in English the majority of the participants must rely on an interpreter to communicate, rather than just a few individuals who do not speak the language of the proceedings. The vast majority of the population, and most of the participants in court proceedings, speak Cantonese and have limited if any English proficiency; but a surprisingly large number of judges are still monolingual English speakers. A more comparable environment is international tribunals whose legal personnel come from all over the world and must rely on interpreters for all communication, but in this case a key difference is that these tribunals feature simultaneous interpreting provided by teams of interpreters with proper booths and audio systems. In Hong Kong, by contrast, when the language of the proceedings

xxiv Common law in an uncommon courtroom

is English much of the interpreting is done in the consecutive mode (English to Cantonese for the benefit of not only defendants and witnesses, but also jurors and spectators; and Cantonese to English for the benefit of monolingual judges and/or counsel). Although whispered simultaneous interpreting or chuchotage may also be provided for defendants, others in the courtroom with limited English proficiency are denied access to the interpretation. Readers of this book will learn of the added pressure interpreters face when working in a courtroom where every word is scrutinised by bilingual attorneys, witnesses who have some knowledge of English, and jurors – and where the record itself is bilingual and thus subject to verification. Dr. Ng first takes us through the history of Hong Kong as a British colony with a foreign language and government imposed on a local Cantonese-speaking population, followed by the transition to Chinese sovereignty and the translation of existing legislation from English to Cantonese (all illustrated clearly in Appendix 1). She explains the resistance to abandoning English as an official language in the court system and the resulting complications. Interpreters must contend not only with the usual pressures of the adversarial courtroom, but also with judges, legal counsel and witnesses who speak heavily accented English with numerous grammatical errors. Anyone who has ever interpreted for a non-native speaker of the source language can attest to the additional stress involved in such a situation. The following chapters focus on the data collected in Dr. Ng’s study of nine different criminal cases at three court levels. She adapts Goffman’s (1981) descriptors of receptor roles to the circumstances of the bilingual Hong Kong courtroom in order to shed light on the complexities of interactions among the actors. She also applies Conversation Analysis (CA) and Grice’s (1975) maxims of the Cooperative Principle (CP) to her analysis of the testimony, including both examination-inchief and cross-examination, and reveals the consequences of interruptions and comprehension problems with respect to the power dynamics of the proceedings. The issue of power arises repeatedly as Dr. Ng draws on the work of scholars such as O’Barr (1982), Berk-Seligson (1999) and Hale (2004) to discuss how language is used as a weapon in both the monolingual and the bilingual courtroom. She also provides corroborative evidence for studies of court interpreters’ use of the third person (e.g., Angermeyer 2009 and Cheung 2012) and adds another dimension to their findings with a new theory. This book makes it clear that the added layer of bilingual proficiency by so many participants in the proceedings further complicates the power struggles seen in any adversarial setting as different parties try to exert control over the testimony. On the other hand, not all participants are bilingual, resulting in disparities and distortions of the traditional power dynamics of the adversarial courtroom. When the interpreter is the only bilingual person present, he or she holds significant power over the proceedings, as has been noted by other authors such as



Foreword xxv

Berk-Seligson (2002). This is true not only when judges and attorneys are monolingual English speakers, but also when witnesses testify in languages other than Cantonese or English. Furthermore, Chapter 9 examines interpreters’ use of reported speech, as opposed to the first-person interpreting dictated by standards, which occurs almost exclusively when interpreting from English to Cantonese and not vice versa. Dr. Ng hypothesises, and provides strong supporting evidence, that the interpreters are reluctant to be seen by Cantonese speakers as assuming the power of the legal authorities in the courtroom. In addition, expert witnesses who elect to testify in English to save face may have trouble understanding questions from counsel and articulating their responses, which has a significant impact on their credibility and on other participants’ ability to understand the evidence. Perhaps of greater concern is the fact that some jurors have limited English comprehension and thus may struggle to comprehend parts of the trial, including the judge’s instructions for reaching a verdict (to such an extent that words like “acquit” are unfamiliar to them). While it is true that jurors the world over have difficulty with the legalese that lawyers are so fond of using, the situation in Hong Kong is particularly alarming because of jurors’ inability to comprehend even basic vocabulary and idioms. Dr. Ng cites one case that was overturned on appeal because of the jury’s evident confusion about the instructions (discussed in Chapter 8 and shown in the transcript featured in Appendix 4), and raises the disturbing possibility that the very survival of the jury system may be threatened due to pervasive comprehension problems (in a territory whose democratic traditions are already in jeopardy). This study also calls attention to an issue that often arises in discussions of interpreting: the dilemma posed by polysemy. Polysemy is a particular problem in the adversarial courtroom, where the spoken word prevails and lawyers wield language as a powerful weapon. They may deliberately ask ambiguous questions or seize on vague witness statements to serve their own ends, whereas interpreters are constrained in their ability to clarify ambiguities. Furthermore, because Chinese is a high-context language and English a low-context one, disputes over the meaning of a particular word or phrase are even more likely to arise. One case in the study, discussed in detail in Chapter 4, provides a powerful example of the interpreter’s dilemma as she is caught up in the manipulative use of a single ambiguous term by the prosecutor and defence counsel. Other predicaments encountered by interpreters in the study will be familiar to court interpreters elsewhere: judges interfering in their work or passing off some of their own duties to them, and witnesses testifying in a mix of languages, confusing the record and complicating the interpretation process (especially in the case of relay interpreting). Dr. Ng’s conclusions from her analysis of the data have broad implications for interpreting practice and pedagogy. For example, the discussion of polysemy in

xxvi Common law in an uncommon courtroom

Chapter 4 leads her to assert that interpreters need to be “taught how to defend an informed decision and not to submit meekly to authority”. She also points out that much of the research on court interpreting has focused on interpreter errors caused by the lack of training or incompetence, overlooking the important role of “other co-present court actors’ behaviours and how they may impact on interpreters’ performance”. She does not deny the importance of training, but notes that factors such as the lack of preparation materials for specific cases and fatigue caused by long hours working alone also militate against competent interpreting. Her recommendations for best practice in all courtrooms include the use of simultaneous interpreting with teams of interpreters working with proper audio equipment, and training for all court personnel in working effectively with interpreters. She also advocates extensive training for interpreters before they ever set foot in a courtroom, high standards for entry into the profession, and commensurate pay and working conditions. These best practices have been called for elsewhere, of course, but Dr. Ng’s research provides solid empirical evidence to strengthen such recommendations. As I read this book, I found myself eagerly highlighting passages and silently applauding the author, occasionally even blurting out a triumphant “Yes!” I’m sure other readers will agree that Dr. Ng’s work provides a powerful new tool for those who champion the cause of professionalism in court interpreting. Holly Mikkelson December 2017

Chapter 1

Introduction

1. Research in court interpreting Court interpreting, also known as judicial interpreting, in a narrow sense refers to interpreting which takes place in the courtroom (González, Vásquez, and Mikkelson 2012: 96). This includes all sorts of hearings ranging from a defendant’s initial appearance in court (for mention or for plea-taking), bail applications, trial proceedings or sentencing. In a broader sense, court interpreting may be regarded as synonymous to legal interpreting (Lee 2015: 186), which refers to “interpreting in all settings and at all stages of the criminal law procedures” (Hertog 2015: 21). Legal interpreting covers courtroom interpreting, police interpreting, prison interpreting, interpreting for lawyer-client meetings, interpreting in immigration, asylum hearings and even in military settings. This study, however, focuses on courtroom interpreting. The brief literature review below will thus be limited to research on interpreting provided inside the courtroom. Courtroom interpreting has received much more scholarly attention than interpreting in other legal settings, understandably because most court trials are open to the public and thus ethnographic studies can be conducted without much difficulty, although access to recorded court proceedings may not always be possible. Many studies on court interpreting address the role of the court interpreter, the ethical dilemmas faced by them or how they might impact on the court proceedings (e.g. Angelelli 2004; Berk-Seligson 1990, 2002, 2006; De Jongh 2008; Fenton 1997; Fowler 1997; Hale 2001; Ibrahim 2007; Inghilleri 2013; Laster and Taylor 1994; J. Lee 2009; Leung 2008; Leung and Gibbons 2008; Martin and Ortega-Herráez 2013; Mikkelson 1998, 2008; Morris 1989, 1995, 1999, 2010; E. Ng 2016b). Most of these studies, empirical or anecdotal, have pointed to a conflict between what has been considered the codified role of the interpreter and the normative practices of court interpreting and what actually happens in the courtroom; many argue for the conduit role of the court interpreter to be revisited and for the interpreter to be given more leeway in facilitating the communication gap. Accuracy in interpreting is another much-researched area in court interpreting with studies largely focusing on how interpreters deal with speaker style, including discourse markers and other paralinguistic features (e.g. Berk-Seligson 1990, 1999, 2002; Hale 1999, 2002, 2004; Hale and Gibbons, 1999; J. Lee 2011; Liu

2

Common law in an uncommon courtroom

and Hale 2017; Rigney 1999; Teng, Burn, and Crezee 2018; Crezee, Teng, and Burn 2017). The findings of these studies demonstrate that interpreters tend to focus only on the propositional content of a speaker’s utterance, but often fail to preserve the style in which the utterance is made. Some of these studies examine how interpreters alter the styles of witnesses’ testimony and potentially their credibility, which may subsequently impact on the outcome of the trials (Berk-Seligson 1990, 2002; Hale 2002, 2004), while others investigate how the pragmatics of questions as counsel’s tools for manipulation are altered by interpreters (Berk-Seligson 1999; Hale 1999, 2004; Hale and Gibbons 1999; Liu and Hale 2017; Rigney 1999; Teng, Burn, and Crezee 2018; Crezee, Teng, and Burn 2017). Other studies (Jacobsen 2002, 2007) focus on additions in interpreting resulting from the interpreter’s preoccupation with pragmatics, or omissions in court interpreting due to co-present participants’ behaviour (E. Ng 2015), while J. Lee’s (2013) study suggests that interpreters’ concern about their professional face may override their concern about accuracy in interpreting, thus resulting in their avoidance of self-initiated repair work in times of miscommunication. Other studies in court interpreting examine the interpreters’ use of reported speech as a deviation from the normative practice of first-person interpreting (Angermeyer 2005, 2009; Cheung 2012, 2014; Leung and Gibbons 2008; E. Ng 2011, 2013c) and discuss the rationales behind the interpreter’s use of first person or third person (i.e. reported speech) in interpreting and the potential impact on the speech act. Video-link or remote interpreting (Braun 2013, 2015; Braun and Taylor 2012; Fowler 2013; Licoppe and Verdier 2013) is an emerging area of research in court interpreting, which has received increasing scholarly attention in recent years. Fowler’s (2013) study examines the use of prison-based video-link for defendants applying for bail in England without them appearing physically in court. Her study shows limitations associated with the use of this technology and she contends that the use of remote interpreting places defendants at a disadvantage. The findings of Fowler’s (2013) study are corroborated by the study of Licoppe and Verdier (2013), which examines the use of video-conferencing in pretrial hearings in the French context. Other studies in this area also show that interpreting problems emerging in face-to-face mediation are magnified in the video-interpreted encounters as reflected inter alia in an increase in the number of distortions and omissions in the interpreters’ renditions (Braun 2013, 2015; Braun and Taylor 2012). There are studies which focus on sign language interpreting to ensure deaf people’s access to justice and participation in the judicial process (Brennan, Brown and MacKay 1997; Brennan 1999; Brunson 2007; Russell 2002; Stone and Woll 2008; Turner 1995). Other emerging studies in this area explore the feasibility of deaf people serving as jurors with the assistance of a sign language interpreter



Chapter 1.  Introduction

(Hale, San Roque, Spencer, and Napier 2017; Napier and McEwin 2015; Napier, Spencer, and Sabolcec 2013). Other studies in court interpreting address the all-important issues of interpreter training, education, certification and professionalisation (Blasco Mayor and Del Pozo Triviño 2015; Hale 2010; Perez and Wilson 2007; Wallace 2013), as well as the equally important issue of training for legal professionals to work with interpreters in court (e.g. Del Pozo Triviño and Blasco Mayor 2015; Fowler, E. Ng, and Coulthard 2012; Hale 2015; Hussein 2011; Ozolins and Hale 2009; Mikkelson 1999, 2017). Of the above-cited studies in court interpreting, the majority are situated in a courtroom setting where interpreting services are, to a large extent, provided to cater for the need of the linguistic minority who do not speak the language of the court. The studies by Cheung (2012, 2014), Leung (2008), Leung and Gibbons (2008) and E. Ng (2011, 2013c, 2015, 2016b) are the few which examine certain interpreting phenomena in the Hong Kong courts. This book presents the results of a large-scale research project which explores the Hong Kong courtroom, where interpreting in an English-language trial is ironically provided to serve the need of the majority language speakers. Section 2 below provides a glimpse of the uniqueness of the Hong Kong courts. 2. The Hong Kong courtroom Hong Kong has inherited the British common-law legal system because of its colonisation by Britain in 1842. The common-law courtroom in Hong Kong is, however, uncommon in many ways when compared with other Anglo-American common-law courtrooms. This uncommonness is manifested in many ways, including the use of English as the court language in a predominantly Cantonese-speaking society, resulting in an interesting linguistic dichotomy between English-speaking legal personnel and Cantonese-speaking lay participants in court trials, especially in the pre-handover time in Hong Kong. The linguistic dichotomy between English-speaking legal personnel and Cantonese-speaking lay participants necessarily means that interpreting in an English-medium trial is a sine qua non, as lay participants mostly choose to testify in their mother tongue, which in most cases is Cantonese. Since those requiring interpreting services in English-medium trials are the Cantonese-speaking majority, it can be argued that interpreting services in the Hong Kong courtroom are provided to cater for the need of the linguistic majority, rather than that of linguistic minorities, the latter being the case in many other jurisdictions.

3

4

Common law in an uncommon courtroom

In rare cases where Chinese witnesses choose to give evidence in English, usually in their capacity as expert witnesses, without requesting the assistance of an interpreter, communication problems may be encountered by these witnesses, who speak English only as a second or even a foreign language. These non-native English speakers (NNES) are inevitably disadvantaged in the judicial process. On the other hand, despite the ubiquity of interpreters in the Hong Kong courts, local residents serving as jurors in court cannot always benefit from the interpretation services provided in court throughout the entire trial because of the use of chuchotage at various stages of a trial, which is audible only to the defendant. Unlike in the earlier colonial days, when jury service was mainly performed by English-speaking expatriates and highly educated professionals from the upper echelon in society, most jurors in the present-day Hong Kong courts are Chinese who speak English only as their second or even foreign language. This gives rise to the fundamental problem of jury comprehension, which has been extensively researched in many Anglo-American courtrooms, with findings pointing to a comprehension problem of jury instructions even by English-speaking jurors (e.g. Charrow and Charrow 1979; O’Barr 1982; Steele and Thornburg 1988; Tiersma 1999, 2008, 2009, 2010). Despite the increasing use of Chinese in the lower courts in post-colonial Hong Kong, English retains its vital role in criminal trials in the High Court to this day, and thus the need for interpreting continues. However, unlike their predecessors in the earlier colonial era, who as the only bilingual in court were able to monopolise and manipulate the encounter (Anderson 2002), interpreters in the present-day Hong Kong courts more often than not have to work with court personnel who share their bilingual knowledge. This inevitably subjects court interpreters to external pressures. The presence of bilingual legal personnel and even lay participants further renders the Hong Kong courtroom a special setting not similar to other courts where common law is practised. The installation of the Digital Audio Recording and Transcription System (DARTS) in the late 1990’s, while providing a final line of defence for the administration of justice, further intensifies the external pressure for court interpreters. The introduction of the audio recording system, however, provides an invaluable source of data, on which the present study is based. 3. Motivation of the study This study represents a long overdue endeavour to investigate this uncommon bilingual courtroom setting as described above, motivated firstly by my background as a former full-time interpreter in the Hong Kong courtroom and now a



Chapter 1.  Introduction

researcher and interpreter trainer, as well as my conviction that this hitherto unexplored courtroom setting merits a full-scale investigation. This study is therefore to fill the gap in the literature of court interpreting and by extension in interpreting and translation studies, as well as in sociolinguistics and forensic linguistics. It seeks to demonstrate that court interpreting is both a linguistic and a social phenomenon and it is my hope that the findings will lead to better practices and more effective communication in interpreter-mediated court proceedings, and ultimately to better delivery of justice. 4. Scope and aims of the study This study focuses on the bilingual Hong Kong courtroom – which I have termed an uncommon (or atypical) bilingual courtroom – where interpreters, known as “the mouth and ears of the court” (Sin and Djung 1994: 138), have long played an indispensable role in bridging the communication gap between English-speaking legal professionals and Cantonese-speaking lay participants in court proceedings, and nowadays often have to work with bilingual court actors who share their bilingual knowledge, as noted above. Analysis will, in the main, focus on interpretation between English and Cantonese, which is a day-to-day practice in an Englishlanguage trial, although examples of interpretation involving other Chinese dialects will also be cited from the data to illustrate other interpreting problems. The central aim of this study is to carry out a detailed investigation into the communication processes in this bilingual setting and to see in what way the interactional dynamics differ from those in a monolingual and in a common bilingual setting. It examines such issues as the participant roles of individual court actors with reference to their linguistic capability, and thus their power and control over the communication process. It explores the participation status of individual court actors at different stages of a trial and in different interactional scenarios and thus the implications for the administration of justice. It examines the effectiveness of court interpreting in enabling lay participants’, especially the jury’s access to an English-medium trial in its entirety. This study also explores how the notion of power asymmetry in the special context of the Hong Kong courtroom has a bearing on the “footings” (Goffman 1981) adopted by interpreters, and potentially on their perceived impartiality. It is hoped that the findings of this study will shed light on the administrative practice with regard to the provision of court interpreting and that the recommendations made will apply not only to the Hong Kong courtroom, but also to other courtroom settings.

5

6

Common law in an uncommon courtroom

5. The data This is a data-driven study based on authentic courtroom data consisting of audio recordings of nine criminal trials from three court levels, i.e. the Magistrates’ Court, the District Court and the High Court in Hong Kong. The data total 111 hours and 11 minutes of recording time (see Table 1.1 below). Table 1.1  List of cases and duration of recordings Case Court

Charge

1

Magistrates' Courts

Theft

2007

3h 36m

2

Magistrates' Courts

1.   Making a false declaration to an immigration officer 2.   Conspiracy to defraud the government of the People's Republic of China

2007

4h 4m

3

Magistrates' Courts

Attempting to distribute an infringing copy of a copyright work

2005

11h 23m

4

District Court

Blackmail

2005

16h 34m

5

District Court

Trafficking in dangerous drugs

2007

7h 9m

6

District Court

Arson with intent

2006

14h 7m

7

District Court

Wounding with intent

2005

8h 18m

8

High Court

Murder

2007

29h 43m

9

High Court

Rape

2007

16h 17m

 

111h 11m

Total length of audio recordings

Year of Duration trial

Permission to use the data for academic purposes was sought and granted in 2008 by the then High Court Registrar, following my undertaking to the court that all the personal information in the data would be concealed or changed to ensure anonymity and confidentiality regarding the use of the data. The recordings have been transcribed verbatim, using transcription symbols and conventions for conversation analysis (Silverman 2006). The transcription is intended to represent the speech in as detailed and multifaceted a manner as possible so as to provide readers with an accurate representation of the interaction, and thus includes such nonverbal elements as pauses, emphases and overlapping speech. Concern, however, was given to the readability of the transcripts, as too many details could have made them difficult to read. Efforts have thus been made to strike a balance between an accurate representation of the speech and readability of the transcripts (see the transcription symbols and abbreviations used in this book on pages xvii-xviii and xix). The transcription of the bulk of the audio recorded data was supported



Chapter 1.  Introduction

by three grants from The University of Hong Kong: namely, the Leung Kau Kui Research and Teaching Endowment Fund (2009), and two Teaching Development Grants (2014 and 2016). 6. Summary of chapter contents Following Chapter 1, which has provided a brief review of literature on court interpreting and the background and motivation for undertaking this study, stated the aim and scope of the study, and highlighted the uncommon nature of the Hong Kong courtroom, Chapter 2 presents an overview of court interpreting in Hong Kong from its early colonial days to the post-1997 years, setting the scene for the current study. It adopts a diachronic perspective and illustrates how interpreters, usually the only bilinguals in the courts of the earlier days, differ from their counterparts in the present-day Hong Kong courtroom in terms of their role and power. It also reviews such aspects as the change of language policy in court, the establishment, entry requirements, training, deployment, remuneration and career prospects of the Court Interpreter grade. Chapter 3 explains the modes of interpreting used throughout a trial in the special context of the Hong Kong courtroom. Due to the linguistic dichotomy between English-speaking legal professionals and Cantonese-speaking lay litigants, consecutive interpreting (CI) in open court is used for interactions between legal professionals and lay litigants. For monolingual interactions – as in the rare case when a witness chooses to testify in English, and for legal monologues such as jury instructions and counsel’s speeches – the chuchotage mode is adopted, audible only to the defendant in the dock. This chapter highlights the limitations associated with the use of chuchotage and the prejudice against non-Englishspeaking (NES) participants in court, or people without a native command of the English language, including possibly jurors. The chapter also discusses participant roles of court actors in a trial conducted in Hong Kong courts, as opposed to other courtroom settings, and presents the analytical tools for examining these participant roles. Chapter 4 illustrates with examples from the data how bilingual participants, especially bilingual counsel, exploit their bilingual skill to challenge the accuracy of interpretation strategically, thus assuming a more powerful participant role, while court interpreters and monolingual participants on the other hand lose their power to these other bilinguals in court. It discusses the dilemma faced by the court interpreter and the participation status of other court actors. Chapter  5 presents a less common scenario, in contrast with the scenarios illustrated in Chapter 4. In this chapter, the interpreter is presented as potentially

7

8

Common law in an uncommon courtroom

the only bilingual in court, monopolising the triadic communication and assuming an active participant role in negotiating meaning with the speaker. It analyses the nature of the interpreter’s clarification turns and discusses their impact on the participation status of other court actors and on the power and control over the communication process on the part of the judge and the examining counsel. It also evaluates the impact of such interpreter-initiated turns on the competence of the interpreter and counsel, as well as on the credibility of the witness in the eyes of jurors. Chapter 6 explores how judges change their participant roles, and hence their power and control over the conduct of a trial by intervening in the examination of a witness. While judicial intervention per se is not endemic to the Hong Kong legal system but has to do with judges’ individual styles of conducting trials, it proves to be more problematic in the bilingual Hong Kong courtroom than in the other settings, monolingual or bilingual, as will be shown. This chapter demonstrates, with examples taken from the data, judges’ intervention as a major cause of omissions in court interpreting in the Hong Kong courts. Chapter 7 explores the issue of Chinese expert witnesses as non-native English speakers (NNES) testifying in English and the communication problems arising from this. While the majority of local witnesses choose to testify in Cantonese, assisted by an interpreter, witnesses summoned to give evidence as experts often choose to testify in English without requesting the service of an interpreter, despite the fact that their English proficiency may not be sufficient for the purpose. This chapter illustrates with examples extracted from a murder case the communication problems arising from Chinese expert witnesses’ choice of English as the language of their testimony. It is observed, among other things, that these linguistically disadvantaged participants in court are more suggestible and less assertive in their testimony, which may arguably prove detrimental to the case of the party calling them. This chapter also discusses the impact of this problematic monolingual communication between counsel and the witnesses on the comprehension of the Chinese jurors, who cannot benefit from the chuchotage provided for the defendant in the dock. Nevertheless, how much the interpreter in this case was able to make out from this problematic interaction and to interpret for the defendant is yet another question, one to which no answer can be provided due to the use of chuchotage, usually audible to no other people in court except the defendant. Besides, since no recording device has been installed in the dock, the interpreter’s rendition in chuchotage is not picked up by the recording system. Chapter 8 pursues the issue of jury comprehension in the unique context of Hong Kong courts, where English-medium trials are often argued before Chinese jurors, who mostly have Cantonese as their first language and speak English as a second or even foreign language. Studies in jury comprehension have been largely



Chapter 1.  Introduction

carried out in monolingual legal systems where jurors speak English as their native language or English operates as a societal lingua franca. These studies have focused on jurors’ ability to understand legalese or to follow and evaluate highly technical and scientific evidence given by expert witnesses. This chapter explores jurors’ ability to understand a foreign language in the bilingual Hong Kong courtroom, where communication between legal professionals and lay participants appearing in court as witnesses and defendants, more often than not, has to be mediated by an interpreter. The interpretation provided in court, however, is not always accessible to the jury, as in the case of chuchotage, because jurors selected for jury service are held as a matter of principle to be proficient in the language in which the trial is conducted. Therefore, legal English monologues targeted at the jury, including jury instructions, summings-up and counsel’s speeches, are not interpreted in the consecutive mode in open court for the benefit of jurors. These monolingual interactions also include the examination of witnesses who testify in English without the mediation of the court interpreter. Since jurors are silent observers throughout much of the trial and do not have to give reasons for their verdict, whether they understand those legal monologues and evidence given in English is anybody’s guess. Building on the premise of power asymmetry between legal professionals and lay participants in the hierarchical common-law courtroom and the complicated notion of audience in the Hong Kong courtroom, Chapter 9 explores how interpreters represent the voice of judges and counsel and that of lay participants in the interpreted talk. The chapter looks into the interpreters’ consistent use of reported speech in representing the first-person reference (I/me/my) uttered by legal professionals or omission of it in the Chinese interpretation. It reviews relevant literature on the use of reported speech in interpreting and finds existing theories in the literature inadequate to explain this interpreting phenomenon in the bilingual Hong Kong courtroom. This chapter is therefore devoted to a close examination of this phenomenon and seeks to add a new dimension to the issue, drawing not only on the findings of the recorded court proceedings of the nine trials, but also on results of a survey conducted among serving and retired court interpreters. It explores how the complicated notion of audience in the bilingual Hong Kong courtroom may have a bearing on the interpreter’s strategies when representing the voice of the speaker. Chapter 10 presents a summary of the findings of this study. It discusses its contributions to existing literature on courtroom interpreting and hence to the wider field of translation and interpreting studies, as well as to research in sociolinguistics and forensic linguistics. In the light of the findings, recommendations for best practice are made, including pedagogical implications for interpreter training, recommendations for the best way to work with court interpreters as well

9

10

Common law in an uncommon courtroom

as institutional and administrative recommendations to improve the quality of court interpreting. Drawing on the work of the current study, recommendations for further research are also made in this concluding chapter.

Chapter 2

The practice of court interpreting in Hong Kong

1. Introduction Court interpreters have long been a fixture of the Hong Kong courtroom. Unlike in many courts where interpreters are hired for the benefit of linguistic minorities who do not speak the language of the court, non-English-speaking litigants, defendants and witnesses in the Hong Kong trial courtroom are the Cantonesespeaking linguistic majority. Data from the Census and Statistics Department of Hong Kong show that in 2016 close to 90% of the local population spoke Cantonese as their usual language whereas those who spoke English as their usual language accounted for only 4.3% of the total population (Census and Statistics Department 2016). In other words, in a trial conducted in English, court interpreting is a sine qua non. Article 11 of the Hong Kong Bill of Rights (Bill of Rights Ordinance 1991) states that the rights of persons charged with a criminal offence include inter alia the right to “free assistance of an interpreter if he cannot understand or speak the language used in court”. Although the Bill of Rights Ordinance does not specify the right of witnesses to such interpreting services if they do not speak the language of the court, witnesses’ right to testify in a language other than the court language is guaranteed with the ubiquity of interpreters in the Hong Kong courts. In order to understand or make sense of the current practice regarding the provision of interpreting in the Hong Kong courts, it is important to review the history of court interpreting in Hong Kong. This chapter serves to set the scene for the study of interpreting in the Hong Kong courtroom by providing an overview of the provision and development of court interpreting in Hong Kong from its early colonial days to the recent post-1997 years. It will demonstrate what makes the Hong Kong courtroom a special bilingual setting and how the bilingual legal setting has changed over time. It will explore the implications of these changes for the role and powers of the interpreter and of the other court actors. This chapter also reviews the Court Interpreter grade, the change in the court language policy and the entry requirements, training for court interpreters in Hong Kong and other aspects relating to the grade.

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Common law in an uncommon courtroom

2. Court interpreting in the early British colonial years Court interpreting was necessitated soon after Hong Kong was ceded to Britain in 1842, by virtue of the Treaty of Nanking. In The History of the Laws and Courts of Hong Kong from the Earliest Period to 1898, Norton-Kyshe, Registrar of the Supreme Court of Hong Kong from 1895 to 1904 (Wesley-Smith 1972), noted that during the first twenty years of the British administration, the question of interpretation had been a matter that “caused the greatest embarrassment” to the colonial government, as very often courts either could not sit because no interpreters were available, or had to adjourn because of incorrect interpretation (NortonKyshe 1971b: 8). The lack of interpreters was one of the most difficult problems facing the government in its administration and maintenance of law and order, and the lack of competent court interpreters and the poor quality of interpretation hindered the administration of justice (Smith 1975). This paints a general picture of the state of court interpretation in those days. 3. The birth of court interpreting and the first court interpreter in Hong Kong When the British began their colonial rule over Hong Kong in 1843, there was in the government no one who had any knowledge of the Chinese language and could act as an interpreter, except Daniel Richard Caldwell (1816–1875) (see Eitel 1877; Endacott 1962). Caldwell was born in St. Helena (Norton-Kyshe 1971a: 82), had lived in Singapore and worked in Canton (now Guangzhou). He spoke Cantonese, Malay, Hindustani and Portuguese, which made him indispensable to the colonial government in Hong Kong, though he had no knowledge of written Chinese (Eitel 1877; Endacott 1962; Kwan 2011). He first became an interpreter of the Magistrates’ Court in January 1843 and a year later, when the Supreme Court was established, he was also made interpreter of that court (Endacott 1962). There are thus reasons to believe that Caldwell was the first court interpreter in Hong Kong, and for a while the only interpreter working in both the Magistrates’ Court and the Supreme Court. The fact that Caldwell was occupying and receiving a salary for two posts caught the attention of the Audit Department in Britain in due course and an explanation was demanded. However, due to the lack of competent interpreters to replace him, the then Governor of Hong Kong, Sir John Davis, “urged that irregularity be overlooked” as the Chief Justice had made it clear that the court would not be able to function without Mr. Caldwell’s services (Endacott 1962: 96).



Chapter 2.  The practice of court interpreting in Hong Kong

Being the only person who was able to bridge the communication gap between the British administrators and the local people, Caldwell became very influential in the colony. He was made Assistant and later Acting Superintendent of Police. However, in addition to his police duties, his services as an interpreter were also required in the courts. He had twice resigned from the appointments but was reappointed shortly afterwards as it was quite impossible for the government to function without him. In 1856, Caldwell was appointed Registrar General, Protector of Chinese because of his ability to communicate with the local population and as General Interpreter to the Government. He was made an official Justice of the Peace by virtue of the office he held and was given wide powers in dealing with the Chinese (Endacott 1962; Kwan 2011), and because of his knowledge of Chinese, Caldwell was popular with the Chinese community (Kwan 2011). Caldwell was, however, later suspected of being associated with a notorious pirate – Ma Chow Wong, and involved in many questionable transactions (Endacott 1962; Kwan 2011; Munn 2001). He was eventually dismissed from office in 1861. Whether Caldwell was guilty remains a mystery. Endacott (1962: 95) suggested that Caldwell was never quite trusted by the government and that “as a man of mixed blood and married to a Chinese, he possibly was not completely accepted socially”; Kwan (2011: 194), however, notes that the dismissal of Caldwell might have stemmed from the concerns that Caldwell, on whom the government relied so heavily in their administration of the colony, would become all too powerful and that, as suggested by Norton-Kyshe (1971b: 410), the large powers he was given could be turned to his advantage. As a matter of fact, even after Caldwell’s departure from the government, he continued to make himself indispensable up until his death in 1875, as his services were often requested because of the incompetence of the interpreter in court, if he happened to be in court as a spectator (Endacott 1962). Eitel1 was even quoted as saying that Caldwell was “the best colloquial linguist Hong Kong ever possessed” (Endacott 1962: 99). 4. The lack of competent interpreters and the quality of interpretation What rendered Caldwell indispensable to the authorities during the early history of Hong Kong was the shortage of competent interpreters during this period. In a review of oral interpretation in the courts, Eitel (1877: 5) observed that 1.  Ernest John Eitel (1838–1908), was a German Protestant missionary to China. He moved to Hong Kong in 1870 and became Director of Chinese Studies in 1875 and was later appointed Inspector of Schools in Hong Kong and the Chinese Secretary to Governor Sir John Pope Hennessy.

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there were no competent interpreters attached to the Police Magistracy (now the Magistrates’ Courts) or the Supreme Court (now the High Court), with the exception of Caldwell, whom he described as “the only Government officer who could interpret from Cantonese into English and vice versa with correctness and fluency”. As noted above, during the early colonial years, very few people in the service of the Hong Kong Government could act as interpreters and translators between the British administrators and the local Chinese population. Those who could were missionaries who had learned Chinese to spread the gospel, such as Charles Gutzlaff and John Robert Morrison (Bickley 2001: 10). Missionaries, however, devoted much of their effort to “evangelisation, conversion and education of the Chinese”; most of them were not British and were antipathetic to the colonial government (Lethbridge 1970: 38). Moreover, the Chinese dialects spoken by these missionaries were mostly Cantonese or Mandarin, whereas there were other Chinese dialects such as Chiuchow, Hakka, Amoy and Foochow (now spelt Fuzhou), spoken by at least one fourth of the local population at that time, for which there were no competent interpreters (Eitel 1877: 5). In the first few years of colonial rule, the British administration had relied on non-Chinese, mostly on the service of Caldwell and some missionaries as noted above, to interpret in the courts and in other government departments, as they did not quite trust Chinese interpreters (Kwan 2011), and there were few educated Chinese anyway and even fewer who had an understanding of English (Lethbridge 1970). In 1847, following Caldwell’s first resignation from his appointments, they had to seek other alternatives by using Chinese interpreters. However, only a handful of Chinese really competent in English were produced by the English-language schools and those employed in the government did not usually stay long as they were paid less than the non-Chinese interpreters. Chinese clerks who worked for the government were also asked to act as interpreters in court because of their knowledge of the English language which they must have possessed to be able to communicate with their English-speaking superiors (Kwan 2011). With regard to the quality of interpreting during this period, Eitel (1877) noted that both the interpreter (a Chinese) working in the Police Court (same as Police Magistracy mentioned above) and the other interpreter (a Macaëse)2 working in the Supreme Court of Hong Kong were not sufficiently acquainted with English, while the interpreter in the Supreme Court was insufficiently acquainted with both English and Chinese. This highlights the shortage of competent interpreters in the early colonial years. Eitel (1877: 10) pointed out at the same time that, to make the matter worse, the interpreters in both Courts had little understanding of their role and would often engage in lengthy private conversations with 2.  Now usually spelt “Macanese”, which indicates a Portuguese person born in Macau.



Chapter 2.  The practice of court interpreting in Hong Kong

witnesses, and “put at their own instigation leading questions to witnesses whilst of the replies thus elicited only so much as appears relevant or judicious to the uncultured minds of the interpreters reaches the ears of Counsel, Jury or Judge”. He also observed that the interpreters in both Courts suggested to witnesses what to say, while the Supreme Court interpreter was found to be in the habit of bullying, lecturing and scolding witnesses for giving absurd replies either arising from their “incomprehensibility of the interpreter’s unidiomatic speech or peculiarity of pronunciation” or their “mental incapacity or intentional evasion” (ibid.). Eitel suggested that “the evasions, equivocations and other subterfuges which witnesses so often indulge in, and which in the case of English witnesses are at once noted by Counsel, Jury and Judge as a significant part of the evidence, are thus entirely lost sight of in the case of Chinese witnesses” (ibid.). Meanwhile, as the Chinese witnesses were not able to testify in the language of the court, their evidence was subject to the interpreter’s “knowledge, judgment and discretion” and depended on “how much he may retranslate or entirely omit their evidence” (ibid.). On the other hand, the interpreters’ unwillingness, among other things, to admit their “inability to understand the peculiar local patois of a witness” and thus having to resort to guesswork would also have an effect on the accuracy of interpretation (ibid.). As a natural consequence, the Chinese population then supposed that justice in the Hong Kong court depended “as much upon the good-will or knowledge of the interpreter as upon the legal acumen of the Counsel or the impartiality of the Judge” (ibid.). From time to time there were native Chinese interpreters caught indulging in corrupt practices and subsequently dismissed, but as noted by Eitel (1877: 3), “the cases of detection were probably few as compared with the amount of rascality carried on undetected”. The few Chinese interpreters who were able to bridge the communication gap between court personnel and lay participants were “frequently exposed to the temptation of bribes for giving false interpretation” as Smith (1975: 71) observes. 5. The Student Interpreter Scheme To improve the supply of bilinguals and hence the supply of interpreters and translators and the quality of interpretation, various measures to encourage government officers to study Chinese or schoolboys to prepare themselves for interpreterships in the government service were introduced, but all ended in failure (Norton-Kyshe 1971b). In 1861, Sir Hercules Robinson, who took office as Governor of Hong Kong in 1859, proposed a new scheme  – the Student Interpreter Scheme (also known as the Cadet Scheme) – to the Legislative Council, arguing that “there was

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no fit interpreter available, and no existing means were likely to furnish such men” (Norton-Kyshe 1971b: 8). The Governor pointed out at the same time that “it was quite impossible to conduct the government of 120,000 people without proper interpreters who knew their language. The existing interpreters were a failure, not so much from their ignorance of Chinese, as from their ignorance of English” (Norton-Kyshe 1971b: 9). To illustrate the state of affairs, the Governor cited an anecdote he was told by Dr. James Legge:3 Legge’s daughter had her watch stolen, and the thief was caught and brought to court. The only witness to the theft told the court through the interpreter that he was asleep on the wall when the crime was committed. The witness’s answer was manifestly absurd but would nonetheless have been accepted if Dr. Legge had not been present in court to point out the mistake. It was made known to the magistrate that what the witness had said was that he was white-washing the wall when he spotted the theft.4 The Governor’s proposal was subsequently approved by the Legislative Council. The scheme was apparently instituted out of a pressing need for better interpretation and translation in the government, especially in the courts (Lethbridge 1970). The Governor’s plan was to choose young men under 20 years of age from England to study Chinese in Hong Kong. It was hoped that upon successfully completing the two-year Chinese learning course and passing the examinations, the cadets would act as interpreters and translators between the British administrators and the local Chinese people, and in particular as interpreters in the courts, where the need was pressing (Bickley 2001; Eitel 1877; Lethbridge 1970; Norton-Kyshe 1971b). The regulations governing the cadetships published in the Government Gazette on 12 October 1861 stipulated that “[a]t the end of two years’ study or as soon afterwards as they shall be declared qualified by a Board of competent Examiners, the three first Cadets shall be appointed Government Interpreters, and be employed in such of the departments as may require their service […]” (Norton-Kyshe 1971b: 10). However, as it turned out, none of the cadets recruited under the scheme and subsequently declared qualified by the Board of Examiners ever held the position of interpreter, but instead assumed senior positions in the government in various 3.  James Legge (1815–1897) was a noted Scottish sinologist and the first Professor of Chinese at Oxford University (1876–1897). 4.  Chinese is a tonal language, which means that different tones distinguish words that are otherwise pronounced identically, and Cantonese has six basic tone markers. In this case, the Cantonese words 粉 (white-wash) and 瞓 (sleep), albeit orthographically different, are distinguished phonetically only by their tones. The problem was obviously caused by the interpreter’s failure to distinguish the tone of fan2 (white-wash 粉) from that of fan3 (sleep 瞓). Note that Romanisation of Cantonese characters in this book is based on Jyutping, a Cantonese Romanisation system developed by the Linguistic Society of Hong Kong. This system distinguishes six tones in Cantonese and the number at the end of a syllable is a tone marker.



Chapter 2.  The practice of court interpreting in Hong Kong

capacities such as Chief Justice, Postmaster General, Colonial Treasurer, Captain Superintendent of the Hong Kong Police, Registrar General, Administrator of the Colony, Superintendent of Victorian Gaol and Police Magistrate (Bickley 2001: 16; Lethbridge 1970: 39). Three of them even became the governors of Hong Kong (Ure 2012: 16).5 Lethbridge (1970: 39) suggests that the cadets’ swift promotion to substantive posts was “a de facto violation of the published regulations”. Even James Legge (1872: 189), who supported the scheme, was of the view that the scheme would have been more fruitful if it had been better carried out and noted that “there should have been no directing them away from their proper business of study until they had given proof of their actual interpretation in the Supreme Court”. Eitel (1877: 8) considered the scheme a “move in the right direction” and noted that it “has done much good” despite all its drawbacks, as the addition of the cadets to the various government departments enabled “a sufficient check” on the interpretation of the native Chinese clerks acting as interpreters and documentary translation. Eitel also opined that the scheme did not help with the interpretation in the Supreme Court, where “it is still possible to listen to a game of cross questions and crooked answers which would be amusing if it were not so painful” (ibid.). Like Legge, he considered it regrettable that the practical value of the scheme “was never put on its trial at the Supreme Court” (ibid.). As a matter of fact, the reason why these cadets never attempted interpreting in the courts is not too difficult to fathom. As the scheme did not require them to have any prior knowledge of Chinese, they all started to learn from scratch an entirely new language which was in no way similar to their native tongue. Two years would never have sufficed to master a new language, let alone the skills of court interpreting, which – as we now know – itself requires rigorous and specialised training. The fact that these cadets never attempted interpreting in court suggests that they were never quite qualified as court interpreters. As such, the problem of interpretation in court continued to pose a challenge to the colonial government. In the Governor’s Report on the Blue Book dated 29 April 1881 (Jarman 1996), Sir John Pope Hennessy, the then Governor of Hong Kong, addressed the problem of defective interpretation, which, as he suggested, had led to a number of miscarriages of justice. The judges and the bar from whom he subsequently solicited views regarding this issue, described the interpretation in the Supreme Court as “deplorably bad”, noting that the Chief Court Interpreter was a Portuguese gentleman who, in their words, “cannot interpret the written language of China” and “is unable to express himself in correct English”, while 5.  They are: Sir Francis Henry May, the 15th Governor of Hong Kong (1912–1918), Sir Cecil Clementi, the 17th Governor of Hong Kong (1925–1930), and Sir Alexander Grantham, the 22nd Governor of Hong Kong (1947–1957).

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the other interpreters were Chinese who received low salaries and did not speak English very well. Governor Hennessy was told that none of the legal and court personnel (except Mr. Ng Choy,6 the first Chinese called to the bar), including the judges, the Attorney General, Crown Solicitors and the jury, understood a word of Chinese, although it was the language spoken by most of the “prisoners and witnesses” in the majority of the criminal cases and litigants in most of the civil cases (Jarman 1996: 629). In other words, nobody in court, except the interpreter him/ herself, would be able to tell if the interpretation was accurate, a situation which is in stark contrast with the present-day Hong Kong courtroom, where most of the court personnel are bilingual. 6. Court interpreting from the 1970’s to 1997 6.1 The enactment of the Official Languages Ordinance in 1974 The year 1974 marked a major watershed in the official language policy of Hong Kong. It was in this year that Chinese was given official status along with English, which had been the only official language in Hong Kong for over a century since its colonisation by the British. In 1974, the Official Languages Ordinance was passed, establishing both English and Chinese as the official languages for the purposes of communication between the government and the general public, as well as for court proceedings (Official Languages Ordinance 1974). Subsequent to the enactment of the Official Languages Ordinance, the requirement to use only English in courts was lifted at the Magistrates’ Courts and various tribunals. This language restriction was later removed at the other levels of courts in stages from 1996 to 1997 (Provisional Legislative Council 1997; see Appendix 1 for the timeline of the use of Chinese in courts). 6.2 The resistance to the use of Chinese in court by the legal arena The freedom to use Chinese7 as the trial language in the Magistrates’ Courts from 1974 did not, however, result in an immediate switch of the court language from English to Chinese for trials heard in the Magistrates’ Courts, except for tri-

6.  Ng, also known as Wu Tingfang, served as an interpreter in the Magistrates’ Court from 1861 to 1874 before he left for England to study law at University College London and subsequently became the first ethnic Chinese barrister in history (Pomerantz-Zhang 1992). 7.  In the court context, Chinese means Cantonese, not Mandarin or written Chinese.



Chapter 2.  The practice of court interpreting in Hong Kong

als heard by special magistrates.8 One of the reasons was that English remained the language of the law until 1987, when the Official Languages Ordinance was amended, requiring new laws to be enacted and published in both English and Chinese (Sin and Djung 1994). April 1989 saw the enactment of the first bilingual ordinance  – the Securities and Futures Commission Ordinance (Securities and Futures Commission Ordinance 1989)9 – which also marks the commencement of the bilingual legislation programme in preparation for the changeover of Hong Kong’s sovereignty in 1997. The plan to use Cantonese as the trial language in the Magistrates’ Courts also met with resistance from the Hong Kong Bar Association and had thus to be postponed (Wong 1990). Since the scheme allowed the magistrate hearing a trial in Cantonese to make a record of the proceedings in English, the Bar Association expressed concerns that the magistrate, being not a qualified interpreter/translator, would have to translate Cantonese testimony into English alone and that since the magistrate’s notes were not open to scrutiny by other parties during the trial, translation errors made by the magistrate would escape notice. In a trial conducted in English, however, the Bar Association argued, any mistakes made by the court interpreter would be noticed and rectified by other Chinese speakers in court (ibid.). The argument put forward by the Bar Association is indicative of the interpreting reality in the Hong Kong courtroom in the early 1990’s, which remains by and large true of the state of affairs in the present-day bilingual Hong Kong courtroom: in a trial conducted in English, the court interpreter is, unlike his/her counterparts in the early colonial days, not the only bilingual in court and his/ her interpretation is open to scrutiny and correction where necessary by the other bilinguals in court. This will be illustrated and discussed further in Chapter 4. The other reality, which was true of the early 1990’s Hong Kong courtroom, is that English was often chosen as the trial language with interpretation provided, not necessarily because there was a communication barrier between the lay participants and the legal professionals, but because the magistrate either did not wish to translate or considered him/herself incapable of translating counsel’s questions 8.  Following the passing of the Official Languages Ordinance, special (lay) magistrates were hired in the Magistrates’ Courts from late 1970’s to deal with such cases as hawking and minor traffic offences. Trials of such cases are heard in Cantonese and thus no court interpreters are assigned to these courts. Lay magistrates are Cantonese-speaking locals without proper legal training. 9.  This Ordinance was repealed by s. 406(1) of Legal Notice No. 5 of 2002. The savings, transitional and supplemental arrangements are set out in Part 1 of Schedule 10 to the Securities and Futures Ordinance (2012).

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and witnesses’ testimony into English without the help of the interpreter. Although the law does not require magistrates to keep their notes in English in a Cantonese trial, the Chinese magistrates back then all kept their notes in English.10 The reason for this practice was two-fold: first, the writing system of Chinese is far more complicated than its English counterpart and it is thus understandably more efficient to note in English than in Chinese; second, even if the record of the proceedings was kept in Chinese in a Cantonese trial, the Chinese record would have to be translated into English in case of an appeal, as Chinese was not allowed in the Court of Appeal until 1996 (Provisional Legislative Council 1997). This accounts for the resistance to the use of Chinese in the courts from the legal arena and thus the continued use of court interpreters so that a scrutinised official record of the proceedings could be kept. 6.3 The use of Chinese in the Magistrates’ Courts and the role of the interpreter When it later became obvious that the use of Chinese in the courts was an inevitable trend with the imminent handover of Hong Kong’s sovereignty in 1997, bilingual magistrates and counsel made no more attempt to resist the trend but chose to go with it. However, instead of releasing the court interpreter, many magistrates kept the interpreters as language consultants in court and would seek help from them in a whisper when they encountered a problem in the process of translating the proceedings into English (E. Ng 1997, 2013b). Therefore, even in a Cantonese trial, the interpreter could not allow his/her mind to wander away from the court drama, as the magistrate might ask him/her for help with any translation problem s/he encountered at any time during the trial. 7. Post-colonial court interpretation in Hong Kong 7.1 Increasing use of Chinese in the courts The changeover of Hong Kong’s sovereignty in 1997 has resulted in an increasing use of Cantonese as the trial language in the Magistrates’ Courts as well as in the District Court since that time. In the Court of First Instance (CFI) of the High Court,11 however, quite a substantial percentage of the criminal cases are 10.  This was commonplace when I served in the courts from 1994 to 1995. 11.  The Court of First Instance (CFI) of the High Court was formerly called the High Court of the Supreme Court (before the handover).



Chapter 2.  The practice of court interpreting in Hong Kong

still heard in English on a daily basis due to the presence of expatriate court personnel, judges and counsel included. Statistics from the Department of Justice of Hong Kong reveal that in 2017, only 30.4% of the trials in the CFI of the High Court were heard in Chinese (Department of Justice 2017). See Appendix 2 for the percentage of criminal cases conducted in Chinese at various court levels over the past twenty years. 7.2 The need to work with bilingual court personnel In the early colonial days, the court interpreter was usually the only person speaking both the language of the lay participants and that of the court, as has been illustrated above. Any interpreting mistakes, which might have subsequently led to a miscarriage of justice, would simply go unnoticed because few would be able to challenge the accuracy of the interpretation. Today, while interpreters continue to play their part in trials conducted in English, they are no longer the only bilinguals in the courts, which are dominated by legal professionals who speak both the language of the court and that of the witnesses and defendants. Due to the popularisation of education, many defendants and witnesses in court also possess a degree of proficiency in English. The presence of these other bilinguals inevitably subjects court interpreters to immense external pressure and can be presumed to have an impact on the dynamics of interactions in court. It is not uncommon for bilingual counsel or judges to criticise an interpreter’s interpretation. For example, on 30 May 1997, the South China Morning Post quoted Barnabas Fung, then a magistrate in Western Court, fluent in both Chinese and English, as saying that his court interpreter’s poor interpretation “could rob the defendant of a fair trial”, and his remarks had left the court interpreter in tears. The magistrate consequently had to order a five-minute break for the interpreter to “collect herself ”, but she was too upset to continue and had to be replaced. The same article also reports the magistrate’s intervention in an earlier trial with the same interpreter when he felt he had to translate a verdict himself (Chow and Chin 1997). In the same article, a judge was quoted as saying that “[t]he quality of court interpreters varies from the very good to the very bad and the situation has become worse in recent years”. The judge is probably right about the variation in quality, but could be mistaken in saying that the situation has worsened in recent years. The truth is that there are now more bilingual court personnel who are able to spot interpreting mistakes. It can thus be argued that the presence of the other bilinguals in court makes the process of interpreting in the courtroom more transparent and thus the job of court interpreting more demanding. This will be illustrated in Chapter 4.

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7.3 Implementation of the bilingual court reporting system The installation of the Digital Audio Recording and Transcription System (DARTS) in the courts in the late 1990’s is a milestone in the history of court interpreting in Hong Kong as it enables a bilingual court reporting system. Before that, only utterances made in English and the English interpretation were kept in the court record. What was said by the witnesses/defendants in Chinese and the Chinese interpretation of English utterances vanished into thin air once spoken. Even if an appeal should ensue at a later stage on the grounds of an alleged interpreting error, verification was impossible in the absence of any record of the original testimony in Cantonese. What the court relied on for its verdict was the English version of the court proceedings. With the introduction of DARTS, any mistake allegedly made by the interpreter can be checked against the record. Interested parties can apply for access to the bilingual record in case of an appeal. While this inevitably further intensifies the pressure on the court interpreter, at the same time it “holds out the promise that justice will be better safeguarded” (Sin and Djung 1994: 144). The appeal case between the Hong Kong Special Administration Region (HKSAR) and Ng Pak Lun (HKSAR v. Ng Pak Lun 2011) is an example of DARTS serving as evidence of misinterpretation by the interpreter, which eventually led to the conviction being set aside by the Court of Appeal and to a retrial of the case. Interestingly, misinterpretation or inaccurate interpretation did not constitute grounds for the appeal application in this case, as counsel for both parties and the trial judge were all non-Cantonese-speaking expatriates and were unaware of the inaccuracy in interpretation. It was during the examination of the DARTS transcript necessitated by the appeal that the interpretation problem was uncovered. In this case, Ng was convicted of murder by a majority verdict of a jury in the CFI of the High Court of Hong Kong. Ng was shown on the CCTV tape to have participated in the attack on the victim with other assailants. It was the prosecution case that Ng must have realised that there was a real risk that one of his fellow attackers with the heavy object he swung at the deceased intended to cause really serious bodily harm to the deceased, and the realisation was sufficient to render him guilty of murder. The following is a suggestion by the trial judge, followed by the interpreter’s rendition in Cantonese (English back-translation): Judge: You must have realised that there was a risk that Siu Fung,12 in doing what he did, intended the victim some really serious bodily harm. Interpreter: And actually you, at that time, that is, at the time of the incident, you must have known of the risk in this regard, which is that at the time

12.  The prime assailant.



Chapter 2.  The practice of court interpreting in Hong Kong

of Siu Fung so doing, in this respect, [he] would have had the intention of being able to cause the victim, even if not that amounting to grievous bodily harm, that would still possibly cause some degree of harm, is that so? Defendant: Yes

The judge of the Court of Appeal described the interpreter’s Cantonese rendition as “an unfortunate mistranslation or loose translation”. A similar suggestion made by the judge a short while later was interpreted in more or less the same way with “really serious bodily harm” becoming “some degree of bodily harm”: Judge: You must have realised at the time that there was a real risk that Siu Fung was attacking the deceased with the intent to cause grievous bodily harm or some really serious bodily harm. Interpreter: You, at that time, must have known that there was some risk in this regard, that at the time Siu Fung attacked that victim, (he) had the intention to cause some grievous bodily harm or to some degree of bodily harm, is that so? Defendant: Yes, I knew it.

The judge of the Court of Appeal opined that what the defendant was agreeing to was that he knew Siu Fung had intended at least some degree of [emphasis added] bodily harm to the deceased, which was not sufficient to render him guilty of murder. The leave to appeal against the conviction was accordingly granted and a fresh trial upon the same indictment was ordered by the judge of the Court of Appeal. It was estimated that the retrial would cost the government about half a million Hong Kong dollars (Ming Pao 2011). This case was widely reported in the news and aroused concerns from the Legislative Council about the quality of interpreting (Hong Kong 2012). It could be argued that the installation of DARTS does provide a final line of defence for the justice system. One may wonder how many miscarriages of justice had resulted from defective interpretation before the implementation of DARTS, especially in the old days when the interpreter was the only bilingual in court.

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8. The Court Interpreter grade 8.1 The creation of the Court Interpreter grade13 In the early colonial days, all government interpreters and translators (commonly known as I/T) were a general grade under the then Colonial Secretary’s Office (Eitel 1877; see also Y. M. Lee 1994), and later under the Secretariat for Chinese Affairs (Sin and Djung 1994). Both Y. M. Lee (1994), and Sin and Djung (1994) suggest that the Court Interpreter grade was established in the year when the Official Languages Ordinance was passed, i.e. 1974. However, the Pension Benefits Ordinance (2017), which lists government grades and the dates from which the offices were deemed to have been established, shows that the Court Interpreters’ Office (now the Court Language Section) was established on the 26th of May 1971, three years before the Official Languages Ordinance was enacted. On the date of its establishment, there were only two ranks, Court Interpreter II (the lower rank) and Court Interpreter I. The rank of Senior Court Interpreter and Chief Court Interpreter (the latter now retitled as Chief Judiciary Executive; see Judiciary 2017) were created on the 1st of April 1973 and the 14th of October 1981 respectively. The enactment of the Official Languages Ordinance in 1974 also resulted in the creation of the Chinese Language Officer (CLO) grade (now the Official Languages Officer – OLO grade) in the same year (ibid.). The duties of CLOs were to provide written Chinese translation of official government documents, which were originally drafted in English, for communication with the general public. The creation of the Court Interpreter grade and the CLO grade subsequently led to the division of the I/T grade into the translation stream and the interpretation stream. Those who opted for the translation stream became CLOs, while others chose to join the Court Interpreter grade. 8.2 Strength of the Court Interpreter grade Since its establishment in 1971, the Court Interpreter grade has experienced both expansion and contraction. The grade experienced its first expansion during the period from 1980 to 1982 from an establishment of 96 to 142 full-time staff members (Hong Kong 1982) and a second enlargement in the late 1990s. The establishment reached its peak of 200 members in 2001 (Hong Kong 2001). Thereafter, the 13.  This is a full-time grade requiring interpreters to have Cantonese and English as their working languages, although the knowledge of any other foreign language or Chinese dialect would be an advantage. Part-time interpreters, who work with other foreign languages or other Chinese dialects, are not included.



Chapter 2.  The practice of court interpreting in Hong Kong

grade shrank subsequent to the introduction of an early retirement scheme and a recruitment freeze on government posts and diminished to 136 members in 2006 (Hong Kong 2006). Strangely enough, since 2006, the Judiciary’s annual report has not reported the strength of the Court Interpreter grade, and requests to access such information have to be made to the Judiciary as the need arises, which, however, can be a long process as is typical of enquiries made with the government. Therefore, from time to time, other informal channels such as personal communication with serving court interpreters in the Court Language Section have had to be resorted to. As of January 2018, the Court Interpreter grade had 130 full-time interpreters in different ranks (Court Interpreter II: 39; Court Interpreter I: 52; Senior Court Interpreter: 39) deployed to various court levels in Hong Kong, in addition to three administrative posts as Chief Judiciary Executives,14 as opposed to a strength of 167 staff member in 2012.15 Apart from the primary duty of providing interpretation in court, court interpreters are also entrusted with the duties of translating court documents and the certification of translated documents for use in court. In Hong Kong, as in any other international and multicultural city, the need for interpreting in languages other than Cantonese and English in court as well as in other settings does arise from time to time. The grade is therefore supplemented by a pool of part-time interpreters, who are not regular staff of the Judiciary. They differ from their full-time counterparts not only in employment status, but in their language combinations. Full-time court interpreters’ working languages are usually English and Cantonese (though many of them nowadays also speak Mandarin and some may also speak other Chinese dialects). Part-time interpreters can be referred to as foreign language or dialect interpreters, as they provide interpretation between English (or Cantonese) and a foreign language (or a Chinese dialect). Foreign language interpreters usually have English as their other working language and Chinese dialect interpreters mostly have Cantonese as their other working language.16 As of March 2016, there were 340 part-time interpreters providing interpretation and translation in 35 languages and 18 Chinese dialects (Judiciary Administration 2016).

14.  Email reply from the Judiciary Administration on 17 May 2018 15.  Email reply from Miss M. Tse of the Judiciary Administration on 28 August 2012 16.  From my own experience, some South-East Asian language interpreters, such as Thai, Indonesian and Vietnamese interpreters, usually have Cantonese rather than English as their other working language.

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26 Common law in an uncommon courtroom

8.3 Entry requirements for court interpreters As has been noted above, court interpreting was necessitated at a time when the supply of bilinguals competent in both Cantonese and English was scarce, let alone professionally trained interpreters or translators. Y. M. Lee (1994: 1–2) notes that in the old colonial days when the Colonial Secretariat appointed I/Ts, the recruitment examination for potential candidates was no more than a test of their linguistic knowledge and writing skills at the level of Classical Chinese and was in no way related to court interpretation. Due to this historical background, a qualification or prior training or experience in translation or interpreting has never been a requirement for the Court Interpreter grade even to this day, though candidates must pass a written translation and an interpretation test before they are invited to attend a selection interview. Presumably in the old days there were no requirements as to the candidates’ educational level. The basic requirements for the job would be no more than a high level of proficiency in both Cantonese and English. Many of those who joined the Court Interpreter grade in the 1970’s only had a secondary-level education (personal communication 2012). As a result, entry requirements for court interpreters have been relatively low despite the demanding and challenging nature of the job. Even as of 2004, the minimum requirement for Court Interpreter II was a pass in two subjects in the Hong Kong Advanced Level Examination (Judiciary Administration 2004). It was not until 2010 that the requirement, in a recruitment notice for Court Interpreter II, was raised to a recognised university degree in any discipline (Civil Service Bureau 2010). Another government grade, Simultaneous Interpreter, was established on the 4th of September 1973 (Pension Benefits Ordinance 2017) with the duties to provide simultaneous interpretation for meetings of the Legislative Council, District Councils, and press conferences of various governmental departments (not including the courts, which are administered under the Judiciary as a separate branch from the Legislature and the Executive Council). The Simultaneous Interpreter grade, however, requires applicants inter alia to possess seven years’ post-qualification experience and to be able to interpret simultaneously, in teams of two, with precision and at great speed from English into Cantonese and vice versa (Civil Service Bureau 2016). Foreign language interpreters must be proficient in the foreign language(s) concerned and in either English or Cantonese, and are required to possess a recognised university degree or an equivalent academic qualification. Chinese dialect interpreters are required to have attained only secondary-level education and be proficient in Cantonese and the dialect concerned (Judiciary Administration 2016).17 17.  In the early days, dialect interpreters were not required to possess any qualifications, including educational level attainment, but only to speak Cantonese and the dialect(s) concerned (personal communication 2012).



Chapter 2.  The practice of court interpreting in Hong Kong

8.4 Training for court interpreters Y. M. Lee (1994: 2), who became a court interpreter in the 1970’s, having previously worked as a court clerk, recalls that training for full-time court interpreters did not start to develop until 1974, and that the form of training was “somewhat like an apprenticeship scheme”. Subsequent to the establishment of the Chinese Language Officer (CLO) grade, many government interpreters and translators (I/ Ts) opted for the translation stream and became CLOs, presumably because the work of a translator is less stressful compared with that of a court interpreter, resulting in a serious shortage of court interpreters. Consequently, many government clerks, especially court clerks, who had the experience of working with and observing many court interpreters at work, considered themselves competent for the job and applied to become court interpreters. The candidates selected were deployed to provide chuchotage (also known as dockside interpreting) to defendants in the Magistrates’ Courts under the supervision of regular court interpreters. This on-the-job training for the apprentice court interpreters went on for about a year before they sat the above-mentioned recruitment examination, and if they passed the examination, they could be appointed court interpreters (presumably in the rank of Court Interpreter II). The training provided for the novice interpreters in those days was no more than to familiarise them with the trial procedural and terminological knowledge. In the early 1980’s, a permanent training officer was appointed to provide training for both new recruits and in-service court interpreters (Y. M. Lee 1994), and Y. M. Lee was himself in charge of the Training Unit in the 1990’s. Weekend mock trials and visits to various related government departments such as the Customs and Excise Department and different divisions of the Police Force would be organised by the Training Unit (Judiciary Administration 2004), presumably to familiarise new recruits with court proceedings and the operations of those departments and the terminology involved. The legacy of this kind of on-the-job training for new recruits has continued to this day. Training for new recruits in recent years is more or less what it was for new recruits in the 70’s and 80’s as described by Y. M. Lee (1994), except that it lasts for only four weeks. During the four-week training period, new recruits are taken through the trial procedures and are provided with glossaries of common terms pertaining to court proceedings. Arrangements are also made for the new recruits to observe in-service court interpreters at work. At a later stage of the training period, these new recruits are each assigned to understudy an experienced interpreter in a magistracy before they make their debut, usually under the supervision of the same interpreter they have understudied. Should the trainee interpreters encounter any problem during the course of interpreting, presumably

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Common law in an uncommon courtroom

the supervising interpreter will come to their rescue. However, in reality, a rescue scenario can be embarrassing to the trainee interpreters and frustrating to the court. Moreover, due to the short training period and the low entry threshold, which requires no prior interpreting experience as was mentioned above, some trainee interpreters’ performance can leave a lot to be desired, as shown in Examples (2.1) and (2.2) below, taken from Case 2, a trial conducted in 2007. Words in italics in the “English gloss” column are my translations (or transliterations) of the original Cantonese utterances or back-translations of the interpreter’s Cantonese interpretation. Example 2.1 Examination-in-chief, Case 2, Making a false declaration to an immigration officer Turn Speaker SL utterance / Interpretation

English gloss

1

W

Er 我哋嘅隊員er敲門要求做一個證件 嘅檢查。

Er, our team members uh knocked on the door to demand a document check.

2

I1

OK. Our team members knock the door, and seek-, and want to have the investigation on her identity.

 

3

PC

Yes=

 

4

W

=Er 我哋嘅隊員入咗屋啦。

=Er so our team members entered the premises.

5

I1

And then our team members get inside the premises.

 

6

W

Er 屋裏面有三個人。

Er there were three persons inside.

7

I1

There are about third-, er there are three (.) person inside

 

8

W

Er 除咗哩一名中國籍女子，我哋後尾 知道佢就係我哋要搵嘅XSL，之外 [仲 有——

Apart from the Chinese female, later known as XSL, whom we were looking for, [there was—

9

I1

[Er beside (.) this Chinese female, which is   a person we are looking for.

10

W

Er 另外仲有一名中國籍嘅男子喺一張er Er there was a Chinese male who was sleeping on the upper bed of 碌架床嘅上格度瞓緊覺。 a bunk.

11

I1

And there is (.) also one Chinese male, which is on the er upper deck of the, of the bed.

 

In this case, the defendant from Mainland China faces two charges, one of which is “Making a False Declaration to an Immigration Officer”, and it was alleged that



Chapter 2.  The practice of court interpreting in Hong Kong

she committed the offence by first divorcing her husband and subsequently entering into a marriage of convenience with a Hong Kong resident in order for her to be granted right of abode in Hong Kong. At the trial it was revealed that the defendant’s brother, a resident of Hong Kong, was arrested for the offence of “Aiding and Abetting Another Person to Make a False Declaration” in connection with this case. During the trial the trainee interpreter (presented in the transcript as I1), working under the supervision of Interpreter 2 (represented in the transcript as I2), is observed to make many mistakes including omissions and distortions of the source-language (SL) utterance, as well as grammatical mistakes and pronunciation problems, as illustrated in Example (2.1). The trainee interpreter is also observed to start interpreting before the speaker finishes his turn, as in turn  8. At other times the witness’s turns have been cut short (turns 4 and 6), thus making the testimony very fragmented. The trainee interpreter is probably worried about his memory capacity and the risk of omitting anything in his interpretation. There were also times when he displayed an apparent lack of legal terminological knowledge. As a result, I2 had to correct his interpretation in a whisper and I1 would then be observed to follow her suggestion by providing a fresh interpretation (see Example (2.2) below). Example 2.2 Examination-in-chief, Case 2, Making a false declaration to an immigration officer Turn Speaker SL utterance / Interpretation

English gloss

1

W

Er 我哋(.)有理由懷疑佢同一宗er協 Er we (.) had reasons to believe that 助及教唆他人作出虛假陳述嘅案件 she was connected with a case of aiding and abetting another person to make a 有關。 false declaration.

2

I1

 

3

I2

we have reasons to believe that …

 

4

I1

We have reasons to believe that …

 

5

I2

… she was [in connection with …

 

6

I1

… [She was (.) She was in, she was in   connection with the offences of (2) …

7

I2

… aiding and abetting.  

8

I1

 

9

I2

aiding and abetting.

 

10

J

(6) shall we stand down? Can we just stand down?

 

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Common law in an uncommon courtroom

Note that in Example (2.2), I1 obviously has a problem encoding the legal expression 協助及教唆 (aiding and abetting) in English, and there is a dead silence of seven seconds after the witness has finished his utterance, before I2 decides to come to his rescue. Therefore, from turns 3 to 6, I1 is simply repeating after I2 instead of providing his own interpretation. He is simply animating the words scripted by I2, a true animator as per Goffman’s (1981) participation framework. In turn  8, however, I1 is not able to hear the expression “aiding and abetting” whispered by I2 in turn 7, even after she has said it for the second time in turn 9. The judge is then observed to let out a sigh of resignation and to tap on his bench impatiently before he finally orders a short adjournment in turn 10, obviously for I1 to get the terminology right. The impact of this on-the-job training on the performance of the interpreter, and thus on the professional image of the interpreter, will be evaluated in the concluding chapter. This on-the-job training is, however, not available to part-time interpreters. Training for part-time interpreters is limited to court visits and attendance at an induction class in a real courtroom setting on the court structure, court procedures and interpreters’ code of practice. During the induction class, interpreters are provided with handouts on relevant subjects including the different oaths/affirmations for court interpreters and for witnesses, specimen charges and brief facts, as well as legal terms commonly used in court proceedings (Judiciary Administration 2016: 3). 8.5 The deployment of court interpreters While part-time interpreters can be assigned to work in any court, depending on operational needs (Judiciary 2016), full-time interpreters are, however, deployed to work at different court levels according to their ranks. All new recruits of the Court Interpreter grade start from Court Interpreter II and are deployed to work in the lower courts (the Magistrates’ Courts and various tribunals), while Court Interpreters I are posted to the District Court, with some to the lower courts as Centre Heads. Senior (or Acting Senior) Court Interpreters usually work in the High Court and the three Chief Judiciary Executives are entrusted with the administrative duties of the grade. When English was the only official court language, every judge, expatriate or local, had an interpreter assigned to him/her. In the early days, it was not uncommon for a court interpreter to work with the same judge for over 10 years until the interpreter or the judge was promoted to a higher rank and was deployed to another court of a higher level, or, as suggested by Li (2008), even until the judge retired from office. Sin and Djung (1994) suggest that the arrangement simplified staff deployment, facilitated communication and helped foster a better working



Chapter 2.  The practice of court interpreting in Hong Kong

relationship between the judge and the interpreter, as the judge built up trust and confidence in the interpreter. Li (2008) describes this as a patronage relationship. He agrees with Sin and Djung (1994) that this practice enhanced communication and fostered a harmonious working relationship of mutual trust, which had a positive effect on the morale and confidence of the interpreter. This practice, however, also has its own problems. Some judges, having built up their trust in their interpreters, might use these interpreters as their proxies and entrust them with responsibilities which are beyond the scope of interpreting and thus the interpreter’s role boundaries. They might, for example, ask interpreters to explain trial procedures or bail conditions to unrepresented defendants, especially in magistracies, where it is not uncommon to see defendants appearing in person.18 Judges in trial courts nowadays are rarely heard asking interpreters to do that. The decreasing need for interpreting services in magistracies is obviously one reason. The installation of the audio recording system, which would inevitably pick up this impropriety, is probably another. However, in the plea courts of magistracies, it is still possible to hear judges asking interpreters to speak on their behalf without themselves uttering those words, in an obvious attempt to reduce their own effort and presumably save the time of the plea court, which has to deal with a great number of cases every day. Example (2.3) taken from a 2007 trial illustrates one of these scenarios. In this example, taken from the plea-taking in a theft case (Case 1) in a plea court of a magistracy, the defendant, having pleaded not guilty to a charge of theft, is being addressed by the magistrate on issues relating to the trial date and her bail. The magistrate, having told the defendant about the trial date and the extension of her bail, simply asks the interpreter to explain the bail conditions to the defendant and her legal representation in the trial without himself uttering those words. In so doing, the magistrate is entrusting to the interpreter duties which should be discharged by himself. The interpreter’s utterance in turn 2 comprises a rendition of the magistrate’s first half of his utterance in turn 1 and a self-produced utterance of the magistrate’s unspoken words, as instructed by him. The interpreter thus becomes a spokesman for the magistrate. Entrusted with the duty to explain bail conditions and legal representation to the defendant, the interpreter speaks in a highly authoritative manner when addressing the defendant as if he was himself the magistrate, or at the very least part of the court personnel vested with the power to “warn” the defendant, to “confiscate” her bail money, to “revoke” her bail and to “detain” her in custody. Notice also the interpreter’s use of the first-person plural pronoun 我哋 18.  This practice was still prevalent when I was working in the Magistrates’ Courts in the mid1990’s.

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Common law in an uncommon courtroom Example 2.3 Interpreter instructed by magistrate to speak on his behalf in plea-taking, Case 1, Theft Turn Speaker SL utterance / Interpretation

English gloss

1

J

The trial will be on the 16th of   May (.) at er 9:30, in courtroom 5. Bail extended. You know the warnings of the bail [and (legal) representation.

2

I

[Yes, Sir. 安排喺五月十六 號，上晝九點半喺五號法庭 進行審訊。相同條件，繼續 擔保。警告你遵守所有擔保 條件，包括當日要準時出 庭。如果唔係嘅話，可以充 公你嘅擔保金，撤消你嘅擔 保，將你扣留。亦都可以控 告你不依期歸押，要罰錢同 坐監㗎。要請律師，無論私 人律師或者當值律師，一定 要事先安排，嗰日冇律師， 而申請將案件押後，我哋唔 會輕易批准，到時你就要自 辨㗎啦，明唔明白？

Trial is fixed for the 16 of May at 9:30 a. m. in court number 5. Bail extended on the same conditions. (I) warn you to observe all the bail conditions, which include appearing in court on time on the day of the trial; otherwise, (I) can confiscate your bail money, revoke your bail and detain you in custody. (I) will also charge you with failing to surrender to custody, for which you will be liable to a fine and imprisonment. (If you) want to hire a lawyer, (you) have to make arrangements in advance. (If you) have no lawyer on that day and ask for an adjournment, we will not approve (that) readily. Then you will have to represent yourself. Do you understand?

3

D

明白。

Understood.

4

I

I understand. 坐喺後邊等。

Sit at the back and wait.

(we – an exclusive “we” which excludes the addressee) in his advice for the defendant to retain the services of a lawyer, which is evidence of his alignment with the court. This might give rise to the issue of the interpreter’s actual and perceived impartiality and the role of the interpreter in the eyes of the co-present court actors. With the increasing use of Chinese in court proceedings and the dominance of local judges, especially in the Magistrates’ Courts,19 the arrangement for an interpreter to work for the same judge for a prolonged period of time has now become a thing of the past. Nowadays court interpreters across the board work on a duty roster, because only court cases presided over by expatriate judges or represented by non-Chinese-speaking counsel require interpreting services between Cantonese and English. When an interpreter is assigned to work on a trial, efforts will be made for the same interpreter to serve in the trial until it is 19.  As of April 2018, of the 72 magistrates, only one is a non-Chinese-speaking expatriate.



Chapter 2.  The practice of court interpreting in Hong Kong

completed. When their service is not called for, court interpreters will work in the office on document translation and certification of translations of documents to be used in court (personal communication 2018). This can be worrying for the newly recruited interpreters working in the Magistrates’ Courts, where over 80% of the cases have been tried in Chinese in recent years (see Appendix 2), as it can mean that these novices have very little chance of practising interpreting in their day-to-day work. This deployment system will be reviewed and evaluated in the concluding chapter. 8.6 The need for relay interpreting when a third language is involved As was mentioned above, court interpreting in Hong Kong is not limited to English and Cantonese interpretation, but from time to time involves other languages. The service of a part-time interpreter is required when a trial involves a participant speaking a language other than Cantonese or English and the full-time interpreter working on the trial does not speak that language or Chinese dialect, which happens quite often in the Hong Kong courts. Where the part-time interpreter’s other working language is not the language in which the trial is conducted, typically in the case of a Chinese dialect interpreter working in a trial conducted in English, relay interpreting involving two interpreters is inevitable, as in Example (2.4) taken from a blackmail case contained in the research data, Case 4.20 Example 2.4 Witness testifying in Shanghainese with relay interpreting provided, Case 4, Blackmail Turn Speaker SL utterance / Interpretation

English gloss

1

PC

Mr. X, is your address the same as that in the witness summons?

 

2

I1

X先生，你嘅地址係咪同證人傳票上面 嘅一樣㗎？

3

I2

儂個地址阿是搭證人傳票上格地址一 樣格？呀？

In this example, the witness, the alleged victim in a blackmail case, is an elderly man in his eighties who chose to testify in his native language, Shanghainese, through a Shanghainese interpreter. However, since the part-time Shanghainese interpreter’s other working language was Cantonese, not English, counsel’s question in English had to be interpreted first by the English-Cantonese interpreter 20.  The transcription of the utterances made in Shanghainese was done by an exchange student from Shanghai at HKU.

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Common law in an uncommon courtroom

(I1) into Cantonese, from which the Cantonese-Shanghainese interpreter (I2) worked into Shanghainese. One problem with the use of relay interpreting is that a mistake made by one interpreter will inevitably be reproduced by the other interpreter. This is what happened in this case, as shown in Examples (2.5) and (2.6) below. Example 2.5 Witness testifying in Shanghainese with relay interpreting provided, Case 4, Blackmail Turn Speaker SL utterance / Interpretation

English gloss

1

W

我見你啦， 出出入入，我見你啦。我要我要幫 你。

I saw you, going in and out. I saw you. I want, I want to help you.

2

I2

哦。佢話︰「我出出入入有幫你六個 月喇」。

Oh. He said, “I in and out have helped you for six months”

3

W

我要——

I want—

4

I1

幫你？

Help you?

5

W

要幫，幫我啦。 Want to help, help me.

6

I2

係。

Yes.

7

W

我出出入入， 你出入我見你六個月啦，有——

I in and out-, you in and out I’ve seen you for six months. (I)have—

8

I2

看到儂阿是啦?

Have seen you?

9

W

呀。

Yeah.

10

I2

進進出出看到儂阿是啦？

In and out have seen you? Is that right?

11

W

呀。

Yeah.

12

I2

啫係我出出入入見倒你六個月喇？

That is, I in and out have seen you for 6 months?

13

W

嗄。

Yeah.

14

I2

係咪咁嘅意思呀？

Is that what you mean?

15

W

嗯。

Mm.

16

I1

Em I’ve been seeing you going in and out   for six months, I help you.

17

PC

(6) Could—

 

18

J

Er Mr, Mr W, em do you want to give your evidence in Shanghainese or Cantonese?

 



Chapter 2.  The practice of court interpreting in Hong Kong

The problem originates from the witness’s mispronunciation of the Cantonese word bong2 (綁 – to kidnap) as bong1 (幫 – to help). Chinese, including all its dialects, is a tonal language, which means that tones distinguish words that are otherwise pronounced identically. Pronouncing a word with a wrong tone is most likely to cause confusion and misunderstanding for the hearer. The mispronunciation of the word (a crucial one in this case) bong2 as bong1 leads to the misrepresentation by the Shanghainese/Cantonese interpreter (I2) in the Cantonese interpretation and the mistake is reproduced in the English interpretation by Cantonese/English (I1) in turn 16. This nonsensical interpretation has rendered the prosecutor at a loss about what to do. When he is about to say something after a long pause of six seconds, the judge steps in to inquire about the language in which the witness wishes to testify and later advises him to stick to the language he has chosen. The witness, however, continues to testify in broken Cantonese and the problem persists (see Example (2.6) below). Example 2.6 Shanghainese witness testifying, Case 4 (continued) Turn Speaker

SL utterance / Interpretation

English gloss

1

W

嗄，用上海話麼，(xxx)就講 囉，伊講我 而家呢，嗱，啊:::，大家做個朋 友，我唔想幫你。吓，大家做 個朋友，我唔想幫你。

OK, use Shanghainese. (xxx) so (he) said, he said, Now, I, look, a:::h, let’s make friends, I don’t want to help (bong1) you. Yea, let’s make friends, I don’t want to help you.

2

I2

嗄，等等吓。佢話我大-，er 我哋大家做個朋友，我唔想幫 你。

Uh, please wait. He said “let-, uh let’s make friends, I don’t want to help (bong1) you.”

3

W

嗯。

Em.

4

I1

Uh let’s [(1) make friends with each other, I don’t want to help you.

 

5

Unknown persons

[綁票個綁。

[bong2 as in bong2piao4 (kidnap, to kidnap)

6

J

Ah?

 

7

PC

Uh, [uh—

 

8

J

[Em (.) I’m very sorry there seems   to be some-, (.) [hah can you see, see he use in Shanghainese?

9

I2

[我唔(.)我勿想幫儂呀？

I don’t (.) I don’t want to help you? (continued)

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Common law in an uncommon courtroom Example 2.6 (continued) Turn Speaker

SL utterance / Interpretation

English gloss

10

W

呀。

Aar.

11

I1

你可唔可以用上海話講出來呀? Can you say it in Shanghainese?

12

I2

儂講上海閒話。

Say it in Shanghainese.

13

W

嗄嗄嗄上海閒話。

oh yes, yes, Shanghainese.

14

I2

[儂講上海話伊講大家做個朋 友，跟勒哪能？

Say it in Shanghainese about what he said “let’s make friends”, and what did he say afterwards

15

W

[唉唉我講：大家做個朋友，我 勿想幫儂。

OK, OK, I’ll say: Let’s make friends, I don’t want to help you.

16

I2

勿想幫儂啥意思？

What does “don’t want to help you” mean?

17

W

嗄？

Ah?

18

Someone

綁票的綁，綁票的綁，勿想綁 票儂。

kidnap, kidnapping, don’t want to kidnap you .

19

I2

噢，噢，噢，綁架的綁，阿是 呀，噢，Sor-, sorry.

Oh, I see, I see. Kidnap, to kidnap. Is that right? Oh, Sor-, sorry.

The judge’s instruction to the witness to testify in Shanghainese does not seem to help. First of all, the witness must have felt obliged to repeat the blackmailer’s utterance in Cantonese, which was the language used by him when making the demand over the phone. That is why in turn 1, the witness still uses Cantonese when reporting to the court what the caller said to him. However, the witness obviously has a problem mastering the tones of Cantonese and continues to pronounce bong2 (kidnap) as bong1 (help). I2’s clarification with him in turn  2 is nonetheless of no avail. This again leads to misrepresentation of his utterance by I2 and subsequently by I1 in the English interpretation. In turn 6, some people (most likely the audience in the public gallery) are whispering the word “kidnap”, which I2, however, fails to hear and tries to clarify with the witness again, but without any success. It is not until someone from the public gallery shouts out loud in turn 18 that I2 realises the problem of miscommunication. This is an episode similar to the trial of the stolen watch case mentioned earlier in this chapter, in which Dr James Legge in the public gallery had to flag a mistake made by the interpreter, as the court personnel had no knowledge of the interpreter’s other working language.



Chapter 2.  The practice of court interpreting in Hong Kong

8.7 Remuneration and career prospects of court interpreters As was noted above, all new recruits of the Court Interpreter grade start from Court Interpreter II before they are promoted to higher ranks (i.e. Court Interpreter I, Senior Court Interpreter and Chief Judiciary Executive). Promotions are both performance- and seniority-based and may also depend on the vacancies of the senior grades. The low entry requirements mentioned in 8.3 above have resulted in a relatively low starting pay and poor career prospects, compared with the Simultaneous Interpreter grade. The Master Pay Scale at Appendix 3 shows the starting salary of a Court Interpreter II is at point 14, whereas that of a Simultaneous Interpreter is point 32. As a matter of fact, the starting salary of a Simultaneous Interpreter is only two points lower than that of a Senior Court Interpreter. A retired Chief Court Interpreter recalled at his farewell party years ago that it took him 16 years to be promoted from Court Interpreter II to I and another 16 years to the rank of Senior Court Interpreter. Even today, when the career prospects are not as bad as in the old days, apparently due to a higher entry requirement, it may still take the best interpreters well over 10 years from the rank of Court Interpreter II to reach the rank of Senior Court Interpreter, which is in most cases the highest rank an interpreter can reach, given the fact that the entire grade has only three in the rank of Chief Judiciary Executive (formerly Chief Court Interpreter). A review of the Simultaneous Interpreter grade, however, shows that of the 14 interpreters, two are in the rank of Chief Simultaneous Interpreter (Civil Services Bureau 2018), which was created on the 1st of April 1974, less than seven months after the Simultaneous Interpreter grade was established. Even the Official Languages Officer grade (formerly Chinese Language Officer as described earlier in this chapter) has better career prospects as it has four promotion ranks, namely, Official Languages Officer I, Senior Official Languages Officer, Chief Official Languages Officer and Principal Official Languages Officer, and there are obviously more posts in the ranks above Official Languages Officer II than the Court Interpreter grade (Civil Services Bureau 2018).21 This is probably why the Court Interpreter grade is described by Li (2008) as one of the few government grades with no career prospects, and this has had an adverse impact on the morale of the grade. Some interpreters would use the job as a stepping stone to gain access to the legal arena and have become barristers of law (Li 2008). As a matter of fact, two current High Court judges formerly served in the court as interpreters. Li (2008) describes court interpreting in Hong Kong as a 21.  Part-time interpreters are paid by a flat hourly rate, which stood at $287 as of May 2016 (Judiciary Administration 2016) for a minimum of two hours, and thereafter by every half an hour. This is in no way comparable to the hourly rate of conference interpreters.

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declining yet not dying industry, because on the one hand, there is a diminishing need for Cantonese-English interpreting due to the increasing use of Cantonese as the court language, but on the other hand, the use of English is safeguarded by the Basic Law and continues in court, especially in the High Court. This may have added to the general feeling of frustration for most interpreters of the grade. 9. Conclusion The chapter has provided an overview of the practice of court interpreting in Hong Kong from its early colonial days to the post-1997 years. It has compared the bilingual Hong Kong courtroom in the early days with the present-day Hong Kong courtroom. In the early days, the interpreter, competent or not, was most of the time the only bilingual in court and was, as Anderson (2002: 212) suggests, “cast in a highly important role vis-à-vis his clients” and might have the power to influence and alter the outcome of a trial as bilingualism in those days was “a rare skill which the other parties to the interaction are unable or unwilling to acquire” (ibid.). Interpreting in the present-day Hong Kong courtroom is, however, made a more transparent process by both the presence of other court participants who share the interpreter’s bilingual knowledge and the installation of the audio recording system in court. This provides both checks on the quality of interpreting and balances on the power of the interpreter, which will be demonstrated in Chapter 4. This chapter has also reviewed the Court Interpreter grade of the Hong Kong Judiciary in various aspects, such as its establishment, entry requirements, training, deployment, remuneration and career prospects. By adopting a diachronic perspective, this chapter has demonstrated that the Hong Kong courtroom is a special bilingual legal setting not comparable with many other jurisdictions and has identified the processes responsible for its unique nature. It has also highlighted the potential problems associated with the practice of interpreting inherent in this special setting. The next chapter will explain the modes of interpretation used in court and present the analytical tools for examining the participant roles of court actors in the judicial process. It will compare participant roles of court actors in interpreted trial discourse in both a common courtroom setting and the unusual Hong Kong courts.

Chapter 3

Modes of interpretation and audience roles in interpreted trial discourse

The previous chapter provided an overview of the practice of interpreting in the Hong Kong courtroom from the early times to the present days. This chapter focuses on the present-day Hong Kong courtroom and explains the modes of interpretation commonly adopted and the audience roles of court actors in a trial conducted in Hong Kong courts, as opposed to other courtroom settings. It compares the audience roles of court actors in interpreted court proceedings in two bilingual legal settings. The first one is a common bilingual setting where interpretation is provided for the linguistic minority; the other is the unusual bilingual Hong Kong courtroom, where interpreting service is necessitated because the linguistic majority do not speak the language of the court. This chapter evaluates the modes of interpretation used in the two different settings with reference to the participation status of individual court actors and thus the implications for their power in the judicial process. 1. Language of the court and of court actors in a common bilingual setting To understand how and for whom interpreting is provided, it is important to examine the languages spoken by individual participants in these two different bilingual settings. In many jurisdictions, interpreters are hired to serve the need of the linguistic minority, either a defendant or a witness, who does not speak the language of the court, and the interpreter is usually the only person speaking both the court and the minority language, while the majority of the other court actors speak the language in which the trial is conducted. Assuming that the defendant is the only person who does not speak the language of the court – the majority language (Language A) – but speaks only Language B – the minority language – and that the interpreter is the only bilingual speaking both Language A and Language B (see Table 3.1 below), everything said in Language A will be interpreted into Language B for the benefit of the defendant, whose turns in Language B will be interpreted into Language A for all the other court actors.

40 Common law in an uncommon courtroom

Table 3.1  Languages spoken by court actors in a common bilingual courtroom Institutional role

Language spoken

counsel, judge, jury, witnesses, public gallery

Language A (court/majority language)

defendant

Language B (minority language)

interpreter

Languages A and B

2. Language of the court and of court actors in the uncommon bilingual Hong Kong courtroom As noted above, in many other jurisdictions, the majority of the court actors speak the language of the court and those who are not conversant with the court language belong to the linguistic minority and are assisted by an interpreter who speaks their language. In a trial conducted in English in the Hong Kong courtroom, however, the court personnel, including the judge, counsel and the jury all speak English (or are supposed to speak, in the case of jury, which will be discussed in more detail in Chapter 8) whereas the majority of lay participants like the defendant, witnesses and audience in the public gallery mostly speak only Cantonese and have to rely on the Cantonese interpretation of counsel’s and judges’ talk in English for participation in the trial (see Table 3.2 below). In other words, what is understood to be the minority language in other bilingual settings is actually a majority language native not only to the defendant, but also to witnesses, the audience in the public gallery, the jury, and in some cases even the judge and counsel in the Hong Kong courtroom.1 Table 3.2  Languages spoken by court actors in an English trial in Hong Kong Institutional role

Language spoken (or supposedly spoken)

counsel, judge, jury

English (Language A, court language, minority language)

defendant, witnesses, public gallery Cantonese (Language B, majority language) interpreter

English and Cantonese (Languages A and B)

1.  Occasionally a trial in Hong Kong involves a witness or a defendant who speaks neither English nor Cantonese, just like the Shanghainese witness in Examples  (2.4) to (2.6), which necessitates relay interpreting and further complicates the participant roles. This study, however, focuses on interpretation between Cantonese and English, which is a day-to-day operation in English-medium trials.



Chapter 3.  Modes of interpretation and audience roles in interpreted trial discourse

3. Trial procedure in the adversarial common-law courtroom Before we proceed to look at the modes of interpretation used at different stages of a trial, it would be helpful to review the trial procedure in a common-law courtroom. Plea-taking (arraignment)

Pleaded guilty

Pleaded not guilty Jury empanelling (jury trial) Prosecution opening, examination-in-chief, cross-examination, re-examination (if any) of prosecution witness(es) Submission by defence of no-case-to-answer

No case to answer

Case to answer

Accused acquitted

Defence opening, examination-in-chief, cross-examination, re-examination (if any) of defence witness(es) Closing submission by prosecution and defence Summing-up by judge (jury trial) Jury (jury trial)/Judge gives verdict

Summary of facts read

Guilty

Not guilty Accused acquitted

Conviction Mitigation Sentence

Figure 3.1  Flowchart of criminal trial procedure in a common-law courtroom

Adapted from the flowcharts of criminal procedure of CFI of the High Court and District Court of the Judiciary of Hong Kong. http://www.judiciary.gov.hk/en/crt_services/pphlt/html/ guide.htm

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Figure 3.1 is a simplified flowchart which combines the trial procedures in the District Court and in the Court of First Instance (CFI) of the High Court in Hong Kong. As a common-law jurisdiction, in Hong Kong, serious indictable criminal cases and some civil cases such as defamation or malicious prosecution are tried in the CFI of the High Court by a judge sitting with a jury, and trials in the lower court (District Court and Magistrates’ Courts) are tried summarily by a judge/ magistrate alone (Heilbronn 1998; Judiciary 2008). References are also made to studies from other adversarial jurisdictions such as the United States and the United Kingdom. For a description of the trial procedure in the American courtroom, see, for example, Cotterill’s (2003) study of the O. J. Simpson trial and De Jongh (1992), or Heffer (2005) for the trial of R v Speak in an English courtroom. 4. Modes of interpretation used in the courtroom Going through the trial procedure as depicted in Figure 3.1, interpretation provided for the linguistic minority, the defendant, for example, is conducted for much of the trial in the whispered simultaneous mode (professionally known as chuchotage). In chuchotage, the interpreter stands or sits close to the defendant, usually in the dock, whispering the interpretation into his/her ear. Chuchotage is “off-the-record” (De Jongh 1992: 45), audible only to the defendant for whom the interpretation is provided. This mode of interpreting also renders the interpreter less intrusive and thus more invisible throughout the trial, with the interpreter working in the background, and the court functions as in a monolingual setting. Consecutive interpreting (CI), whereby the speaker pauses at regular intervals to allow his/her utterance to be interpreted, is used only when the defendant is testifying in the witness box, or is directly addressed as in plea-taking, delivery of the verdict and sentencing. Reading of the charge or indictment and the summary of facts is usually performed in the form of sight translation, whereby the interpreter orally translates the document written in the source language (SL) into the target language (TL). Where the interpreting service is provided not just to cater for the need of the defendant, but is required also by other lay participants like witnesses in Hong Kong courts, CI is adopted not only in the trial stages mentioned above, but is also the default mode during much of the evidential phase of a trial, where Cantonese-speaking witnesses are examined by English-speaking counsel through the mediation of an interpreter, except in rare cases where a witness chooses to testify in English without the assistance of an interpreter. Should a witness elect to give evidence in English, the interpreter will then provide chuchotage for the Cantonese-speaking defendant in the dock as in a common bilingual court setting



Chapter 3.  Modes of interpretation and audience roles in interpreted trial discourse

as mentioned above. However, since the interpretation provided in chuchotage is audible only to the defendant, other participants in court, including the jury and the audience in the public gallery, cannot benefit from the interpretation and can only follow the trial discourse in English. However, without a knowledge or a native command of the English language, these court actors’ access to the trial is questionable and cannot be taken for granted. Because of this limitation, chuchotage is not appropriate for a courtroom setting where interpreting services are provided for the linguistic majority, like the Hong Kong courtroom. The problems associated with the use of chuchotage in Hong Kong courts will be illustrated and discussed in the later chapters of this book. In CI, the interpreter is brought into the foreground, and ostensibly assumes a participant role in the triadic communication, taking turns to speak with the other two interlocutors, who otherwise would not be able to communicate with each other. The interpretation provided in the consecutive mode is also accessible to all those present in the courtroom. Meanwhile, the use of CI in the special context of the Hong Kong courtroom necessarily complicates the notion of audience roles, which will be explained below. 5. Audience roles in monolingual court proceedings Since this study explores participants’ access to interpreted trial discourse, analysis will focus on the audience roles, rather than the speaker roles. For this purpose, I have decided to adopt (with some adaptation) the descriptors of reception roles developed by Goffman (1981) in his participation framework. Goffman (1981: 131–132) identifies two basic categories of hearers  – the ratified and the unratified. According to Goffman, ratified hearers are official listeners comprising both the addressed recipients, who are being directly addressed (adapted as “addressees” for the sake of brevity), and the unaddressed recipients, who may or may not be listening (adapted as “auditors” again for brevity’s sake); whereas the unratified are non-official listeners who can be “overhearers” or “eavesdroppers” depending on whether they are unintentional bystanders or purposely engineered followers of the talk. Goffman (1981: 132) regards the unratified participants as “bystanders”, whose presence, however, is considered the rule, not the exception. Those who follow the talk and “catch bits and pieces of it, all without much effort or intent” are categorised as “overhearers”, whereas those who “surreptitiously exploit the accessibility they find they have” will qualify as “eavesdroppers”. Using Goffman’s hearer role descriptors, ratified official listeners in a monolingual courtroom can include the judge, the jury (in a jury trial), counsel, witnesses

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and the defendant. They therefore all have an audience role as either an addressee or an auditor, depending on the different stages of a trial, except probably for witnesses. Witnesses are summoned to court only to give evidence and under normal circumstances have only an addressee role of the questions directed at them. Jurors, entrusted with the heavy responsibility of returning a true verdict based on the evidence they hear in court are ratified listeners and constantly assume an audience role as either an addressee role (as in jury instructions, counsel’s speeches and the judge’s summing-up) or an auditor role during witness examination. The audience in the public gallery can be regarded as non-ratified hearers, as they are free to come and go and will never have a speaker turn in court. These bystanders can be overhearers or eavesdroppers, depending on whether they are casual inadvertent hearers who are simply interested in the court drama or followers of the talk with an engineered purpose, such as a reporter who attend the trial with the purpose of reporting what is happening in the courtroom (see Table 3.3). Table 3.3  Institutional roles and audience roles in a monolingual trial Institutional role

Audience role

witnesses

addressees

judges, counsel, jury, defendant

addressees/auditors

public gallery

overhearers/eavesdroppers

The following sections will discuss the audience roles in interpreted trial discourse in the two different bilingual settings as mentioned above. 6. Audience roles in interpreter-mediated trial discourse in a bilingual courtroom Let us first have a look at the audience roles in chuchotage. Whether it is a common bilingual setting or the unusual one, as in the Hong Kong courtroom, in chuchotage, supposedly the defendant is the only audience member of the interpretation provided in a whisper. Since s/he is not directly addressed, s/he is not an addressee, but an auditor, who may or may not be listening, as no response is required. Other court participants, who have no access to the interpretation provided, have no audience roles in the interpreted talk, but are supposed to follow the trial talk in the language in which the trial is conducted, in their respective audience roles. If the defendant for whom the chuchotage is provided is the only person requiring interpretation, the other audience roles remain the same as in a monolingual trial (see Table 3.4).



Chapter 3.  Modes of interpretation and audience roles in interpreted trial discourse

Table 3.4  Languages and audience roles of court actors in chuchotage Audience of Language A (court language)

Audience of Language B

addressee/auditor (judge, counsel, jury, witness)

defendant (auditor)

overhearer/eavesdroppers (public gallery)

 

However, in the Hong Kong courtroom, the other audience roles may be impacted by the provision of chuchotage. As was noted above, Hong Kong being a Chinese dominant society, participants in court, ratified or non-ratified, including the audience in the public gallery, and possibly even some Chinese jurors with an insufficient knowledge of the English language, have to rely on the consecutive interpretation provided in open court for accessing utterances made in English. They may not be able to retain their audience roles and consequently become “non-members of the audience” (Bell 1984), except in the case when one happens to sit close to the dock and is able to overhear the interpreter’s whispering, or when one deliberately chooses to sit close to the dock in order to eavesdrop on the whispering. However, as chuchotage is provided in a whisper and is intended only for the defendant, overhearing or eavesdropping is not always possible. Consecutive interpreting is, however, performed in open court and is thus accessible to all those present in court. The audience roles in triadic communications mediated by an interpreter can be more complicated depending on the type of bilingual courtroom setting in which the interpreter works. Sub-sections  6.1 and 6.2 will examine the interpreter’s audience in the two different bilingual legal settings and thus the audience roles produced. 6.1 The interpreter’s audience and the audience roles in court where the interpreter is the only bilingual In an interpreter-mediated trial in a courtroom where interpretation is provided only for the monolingual foreign language (Language B) speaker (linguistic minority), who does not speak the language of the court (Language A), the Language B speaker is usually the exclusive audience (as addressee or auditor) of the interpretation into Language B; all those who do not speak Language B would be excluded, as the “[u]se of a language which is unintelligible to any interlocutor defines that person out of the audience” (Bell 1984: 176). The opposite is true for the Language B speaker when his/her utterances are rendered into the language of the court (Language A), which is accessible only to Language A speakers, not to the Language B speaker. In other words, in a courtroom where the interpreter is the only bilingual, s/he has two distinct audiences, one for the interpretation into Language A and the other for the interpretation

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46 Common law in an uncommon courtroom

into Language B. Assuming that the defendant is the only Language B speaker assisted by an interpreter in a trial heard in Language A, the audience roles can be presented in Table 3.5 below. Table 3.5  Languages and audience roles in a common bilingual courtroom Audience of Language A

Audience of Language B

judge, counsel, jury, witness (addressee/auditor)

defendant (addressee/auditor)

public gallery (overhearer)

6.2 The interpreter’s audience and the audience roles in the bilingual Hong Kong courtroom In the Hong Kong courtroom, the audience roles can be complicated and less straightforward. As was mentioned in Chapter 2, it is now becoming more common for interpreters to work with counsel or judges bilingual in Chinese and English, or even witnesses who possess a certain degree of English proficiency. These bilinguals or part-bilinguals are thus capable of assuming more audience roles in the interpreted trial discourse. Table 3.6 compares the audience roles in witness examination in two different court scenarios in Hong Kong, one with the presence of bilingual court actors and the other without. As illustrated in Table 3.6, bilingual court actors are capable of assuming more audience roles than their monolingual counterparts. First of all, if the examining counsel is bilingual, in addition to his/her official role as the addressee of the interpretation of the witness’s answers, s/he may also slip into a non-ratified role as an overhearer of the witness’s answer in Cantonese as well as the interpreter’s rendition of his/her question into Cantonese, pick up interpretation mistakes or omissions and draw the court’s attention to such mistakes or omissions. In some cases, a witness may be bilingual or part-bilingual, but elects to give evidence in Cantonese, and s/he may overhear the questions put to him/her in English and the interpreter’s rendition of his/her answers into English. The judge and the counsel-in-waiting have to follow the talk closely. If it so happens that they are bilingual, like the bilingual examining counsel, they may, in addition to their official role as auditors of the interpretation or utterances made in English – the language in which the trial is conducted – also overhear the witness’s answers in Cantonese and the interpreter’s rendition into Cantonese and raise the issue of misinterpretation in the course of overhearing. Given that around 90% of the Hong Kong population is Cantonese-speaking, as noted in Chapter 2, members of the jury mostly speak Cantonese as their first language, though to qualify as a juror, one must have “a sufficient knowledge of the



Chapter 3.  Modes of interpretation and audience roles in interpreted trial discourse

Table 3.6  Institutional roles and audience roles in witness examination through an interpreter with and without the presence of bilingual court actors Institutional role

Audience role Monolingual

Bilingual

Examining counsel Addressee (of English interpretation of witness’s answers)

Addressee (of English interpretation of witness’s answers) Overhearer (of Cantonese interpretation of his/her questions and witness’s answers in Cantonese

Witness

Addressee (of Cantonese interpretation of counsel’s questions)

Addressee (of Cantonese interpretation of counsel’s questions) Overhearer (of counsel’s questions in English and interpreter’s rendition of his/ her answers into English)

Defendant

Auditor (of Cantonese version of the talk)

Auditor (of Cantonese version of the talk) Overhearer (of English version of the talk)

Judge, jury and counsel-in-waiting

Auditor (of English version of the talk)

Auditor (of English version of the talk) Overhearer (of Cantonese version of the talk)

Public gallery

Overhearer (of Cantonese version of the talk)

Overhearer (of Cantonese/English version of the talk)

language in which the proceedings are to be conducted to be able to understand the proceedings” (Jury Ordinance, § 4(1c), 1999). It follows that in a trial conducted in English, most, if not all, of the jurors are bilingual. These silent hearers, while in their official role as auditors of either version of the talk as they see fit (now that both English and Cantonese are official languages and that everything said in court is digitally recorded), may from time to time slip into the role of overhearers of the other version of the talk. As silent followers of the talk throughout much of the trial, jurors, however, rarely draw to the court’s attention any inconsistency they may have identified between the interpreted version and the original of the talk. In cases where the Cantonese-speaking defendant (who would most likely choose to follow the talk in Cantonese) is bilingual, or part-bilingual so to speak, s/he may be able to pick up bits and pieces of the talk in English, rendering him/ her an overhearer. Those in the public gallery are more likely to follow the Cantonese version than the English one. However, with a certain degree of competence in English, they may be able to catch some of the talk in English, resulting in overhearing of the English version of the talk.

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I have categorised listeners following the other version of the talk not intended for them, be it English or Cantonese, as “overhearers” instead of auditors, the reason being that overhearers are non-ratified participants, according to Goffman’s (1981) participation framework. This non-ratified participation status is manifested in the fact that in the Hong Kong courts, for example, bilingual witnesses who have elected to testify in Cantonese are not allowed to respond to counsel’s question in English without waiting for it to be interpreted into Cantonese; similarly, bilingual counsel are not supposed to respond to a witness’s answer in Cantonese and must wait for it to be interpreted into English. Likewise, jurors who are bilingual in both English and Spanish in the US courts are constantly reminded by the judge to ignore witnesses’ original testimony in Spanish and to pay attention only to the English interpreted version (Berk-Seligson 1990). The fact that they are also following the talk in a language other than the court language (in the case of bilingual counsel) or the language in which they have elected to testify (in the case of bilingual witnesses) renders them non-ratified listeners and thus overhearers of the talk. In my schema of the audience roles, I have left out the “eavesdropper” role, primarily because it is not easy to ascertain whether a non-ratified participant is an inadvertent listener or a purposeful follower of the talk. In the case of bilingual listeners, it would be reasonable to assume that being bilingual or part-bilingual, they cannot help overhearing the talk in the other version, albeit not intended for them, by catching “bits and pieces of it without much effort” and that this can also be done without any intent (Goffman 1981: 132). 7. Conclusion This chapter has examined and evaluated the modes of interpretation used in court. It has examined the participant roles in interpreter-mediated court proceedings by adopting and adapting Goffman’s (1981) reception role descriptors, with a particular focus on the special context of the bilingual Hong Kong courtroom. The next chapter will illustrate the application of this conceptual framework to reallife data, and examine how the participant roles of the court actors, as construed in this chapter, affect their power and thus control over the interpreter-mediated interaction in the Hong Kong courts.

Chapter 4

The interpreter as one of the bilinguals in court

The previous chapter explained the modes of interpretation and the audience roles in court proceedings, monolingual and bilingual. It compared the audience roles in two different bilingual settings, a common bilingual courtroom as well as the bilingual Hong Kong courtroom, where interpreters nowadays often have to work with court actors who share their bilingual knowledge. This chapter examines how the audience roles of the court actors, as construed in the previous chapter, affect their power and thus control over the interpreter-mediated interaction. In particular, this chapter illustrates an augmentation in the power of bilingual counsel while at the same time manifests a denial of the interpreter’s latitude in the interpretation of contextual clues and his/her loss of power in a courtroom with the presence of other bilinguals. 1. Power and control in monolingual and in interpreted court proceedings According to Fairclough (1989: 46), “power in discourse is to do with powerful participants controlling and constraining the contributions of non-powerful participants”. For the purpose of this study, power is taken to mean a participant’s ability to control the flow of communication or even the communication itself. It will explore how the power of a court actor is realised in his/her participant roles, particularly audience roles (and those of others) in interpreter-mediated court proceedings. This chapter illustrates how the participant roles of the other court actors in the proceedings impact on the power of the interpreter in the triadic exchange, and it will explore the implications of the power shifts in the courtroom for the administration of justice. A trial in the adversarial common-law courtroom is notably marked by power asymmetry, with counsel as questioners enjoying institutionalised power and control over lay participants as answerers (see Atkinson and Drew 1979; Cotterill 2003; Gibbons 2008; Harris 1984; Walker 1987; Woodbury 1984). Walker (1987: 58–59) has identified three sources of power enjoyed by the legal professionals, namely a sociocultural base of power stemming from their roles as authorised participants

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to resolve disputes in a recognised societal institution, a legal base of power, which stipulates counsel’s right to ask questions and at the same time imposes sanctions against those refusing to answer, and a linguistic base of power, which originates from the right to ask questions and thus to manipulate the question forms in order to control the answer to the question put. In an interpreter-mediated trial, however, counsel may lose some of this power and thus control over the proceedings, though K. H. Ng (2009: 162) suggests that the use of the consecutive mode in court interpreting gives counsel an extra layer of control over witnesses, who cannot tell their stories and interact with counsel as freely as their counterparts in a monolingual court. However, many argue that counsel’s power as stipulated by the law to ask questions and to manipulate the question forms by means of various rhetorical devices (i.e. linguistic base of power) may be diminished if the pragmatics of the questions are not reproduced in the interpreted version. Studies by Hale (1999, 2004), Rigney (1999), Berk-Seligson (1999) and Hale and Gibbons (1999), for example, all illustrate a change of the pragmatic force in the interpreter’s renditions of counsel’s strategically formulated questions. These studies show that counsel’s power to manipulate the questions in order to exercise control over witnesses’ answers is very much reduced or even lost when the questioning is performed through an interpreter, which arguably diminishes counsel’s linguistic power in the communicative act. A recent study by Liu and Hale (2017) also shows that the pragmatic force of counsel’s questions when intended to threaten witnesses’ face in cross-examination is not always maintained but can be modified or mitigated in the Mandarin interpretation. Studies in interpreter-mediated police interviews also reveal that the effect of Cognitive Interview techniques, deliberately employed by the police to enhance information retrieval, is diminished by the interpreter (Heydon and Lai 2013; Gallai 2016). 2. Bilingualism, participant roles and power of the interpreter and of other court actors Anderson (2002: 212) suggests that bilingualism is itself a rare skill, which inevitably casts the interpreter “in a highly important role vis-à-vis his clients” and the interpreter’s position in the middle “has the advantage of power inherent in all positions which control scarce resources”. However, he points out at the same time that the interpreter’s monopolistic power disappears “if a client happens to be bilingual” (Anderson 2002: 214). It could thus be argued that the linguistic power of the interpreter to a large extent depends on the co-present court actors’ degree of bilingualism. The state of affairs in court interpreting in the early colonial days, as depicted in Chapter 2, shows how powerful a court interpreter could become



Chapter 4.  The interpreter as one of the bilinguals in court

when bilingualism was “a rare skill which the other parties to the interaction are unable or unwilling to acquire” (Anderson 2002: 212). In an interpreter-mediated trial, the degree of bilingualism of the co-present actors determines their participation status, or the participant roles they are capable of playing. The more participant roles a court actor takes on or is capable of playing, the more power and thus control s/he has over the communicative act and vice versa. 2.1 Power and participant roles of court actors with the interpreter as one of the bilinguals The monopolistic linguistic power that an interpreter has in a common bilingual setting is now rare in the day-to-day bilingual Hong Kong courtroom, where the interpreter works with bilingual legal professionals and even witnesses with a degree of bilingualism. In a bilingual courtroom where the interpreter is but one of the bilinguals, s/he ceases to enjoy the monopolistic power as postulated by Anderson (2002). Interpreters in the present-day Hong Kong courtroom often have to work with court actors who share their bilingual knowledge. This, coupled with the use of the consecutive mode of interpretation for much of the trial, as was explained in the previous chapter, renders the triadic communication relatively transparent to all the court actors with knowledge of both the source language (SL) and the target language (TL). The rest of this chapter will examine the participant roles of court actors in this special bilingual Hong Kong courtroom setting. It will exemplify how bilingual court actors take on extra audience roles and thus assume more power over monolingual court actors and arguably the interpreter in the communicative act. It will illustrate how counsel exploit their bilingual knowledge to challenge the accuracy of interpretation in order to achieve their desired goals of advocacy. Analysis will in the main focus on Case 9, a High Court rape trial, supplemented with examples drawn from other trials in my data in which interpreters work with bilingual court actors. 2.1.1 Increase in audience roles of bilingual counsel As has been pointed out above, the access of the bilingual counsel to both the SL and the TL versions of the trial discourse enables them to take on more participant roles in the interaction, as was illustrated in the previous chapter, which enhances their participation status and control over the discourse. The following examples are taken from the cross-examination of the first prosecution witness (PW1) in the rape case. In this case, the defendant was accused of raping his lesbian younger sister’s ex-girlfriend. Both the prosecutor and the defence counsel were local lawyers bilingual in English and Cantonese, but the judge was an expatriate and spoke

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only English. All the witnesses, the alleged victim and the defendant included, testified in Cantonese. With access to the witness’s testimony in Cantonese and the interpreter’s Cantonese rendition of his questions, the defence counsel (DC) was observed, during the examination process, to correct the interpreter from time to time for either a real interpreting mistake (Example  (4.1)) or an interpretation problem which nonetheless stemmed from DC’s own expression in English (Example (4.2)). Example 4.1 Cross-examination of PW1, Case 9, Rape Turn Speaker SL utterance / Interpretation

English gloss

1

DC

Alright. Now, when you-, after the sexual intercourse, you must feel very aggrieved

2

I

嗱，咁係呢，係你進行完性交之後呢， 咁應該呢，就係呢，係覺得呢，好辛 苦，係咪？

Now, so after the sexual intercourse, you must feel very hard/ bad. Is that right?

3

W

係。

Yes.

4

I

Yes.

 

5

DC

No, “aggrieved”, “aggrieved” em …

 

6

J

Upset.

 

7

DC

… didn’t feel-, would e::r very bitter.

 

Example 4.2 Cross-examination of PW1, Case 9, Rape Turn Speaker SL utterance / Interpretation

English gloss

1

DC

Now, but (.) I don’t think it’s er important. But, (.) do you (.) I’d like confirm is that, at one time, you tried to commit suicide (.) by jump over the, the handrail aft-, as a result of a row with X.

 

2

I

咁er想指出嘅呢，就係話呢，係(.) em有一 次呢，就係你呢，就係同哩個嘅X er嗌交 啦，咁然之後呢，你就喺個大廈er外面嗰 啲嘅圍欄嗰度呢，你就係,係跳咗過去㗎=

So what (I) would like to point out is that, (.) em once, you had a row with X, and then you jumped over the railings outside the building=

3

DC

=No, try, threaten to jump.

 

While Example (4.1) can be regarded as an example of inaccurate interpretation, in that 辛苦 san1fu2 (which can mean “hard, tired/tiring or bad”) is too vague whereas “aggrieved” is much more specific, Example (4.2) is obviously one that has arisen from DC’s own problem of expression in English. The utterance that the witness “tried to commit suicide by jump [sic.] over the railings” suggests that



Chapter 4.  The interpreter as one of the bilinguals in court

an actual act of jumping was performed by the witness in an attempt to commit suicide, which is what the interpreter has taken the phrase to mean and is reflected in the Cantonese interpretation. DC’s correction/elaboration in turn 3 has an adverse impact on the image of the interpreter in the eyes of the monolingual court actors (including in this case the presiding judge), who, without the required bilingual skills, are not in a position to tell where the communication problem lies. As a matter of fact, some local lawyers do have a problem expressing themselves adequately (or grammatically, as is evidenced in the above example) in English, which in most cases is not their native tongue, but merely a language they use in the workplace. Example (4.3) taken from Case 5, a drug case, illustrates another instance of bilingual counsel correcting the interpreter, who obviously has misheard the word “wet” as “red”, which might actually have been a result of the local counsel’s pronunciation problem. Example 4.3 Cross-examination of PW by defence counsel, Case 5, Trafficking in dangerous drugs Turn Speaker SL utterance / Interpretation

English gloss

1.

DC

That’s all? (1) Are you serious? How about   the running nose? Snif-, sniffing and (1) wet eyes?

2.

I

嗱咁呢係咁多嘅意思即係話唔會話流鼻 涕呀，要索鼻呀又或者呀隻眼紅哂咁 呀？

Does “That’s all” mean there was no running nose, sniffing or red eye(s)?

3.

DC

Wet, wet eyes.

 

In some cases, a witness or a defendant may be bilingual or part-bilingual, but elects to give evidence in Cantonese, making it possible for her/him to overhear the questions put to him/her in English and the interpreter’s rendition of his/her answers into English as in Example (4.4). In this example, the defendant, a primary school English teacher charged with theft, is being cross-examined. Both the prosecution and the defence counsel are bilingual but the magistrate speaks only English. After the interpreter has rendered her utterance and the prosecutor has responded with a “yes” with a rising tone, which is a signal for her to continue, the defendant, however, feels the need to correct the interpreter in turn 4 by clarifying and elaborating on her own answer. When the interpreter still seems to have a problem with her translation, she helps first by repeating the Chinese term in turn  6 and later by suggesting the translation in turn 8. This is evidence that the bilingual defendant takes on not only an audience role as an addressee of counsel’s question (technically through

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Common law in an uncommon courtroom Example 4.4 Examination-in-chief of defendant by prosecution counsel, Case 1, Theft Turn Speaker SL utterance / Interpretation

English gloss

1

D

而嗰一日呢(.)嘅:::第二日，我 哋，我哋個，我哋個區會呢， 就有一個係教師發展日。

And the::: following day, it was the Teachers Development Day of our, our District Association.

2

I

And because er the next day there was a (.) er teachers development day in our district.

 

3

PC

Yes.

 

4

D

(1)唔係，唔係嗰個區，意思係 我哋哩個會呀，啫係我哋個五 邑工商總會，我哋哩個教育團 體。

No, not “the district”, what I meant is our association. We belong to the Five District Business Welfare Association, our educational organisation.

5

I

Correction, not in the district. For   our (.) er …

6

D

[教育團體。

educational organisation.

7

I

… [educational (2) …

 

8

D

organisation=

 

9

I

… =organisation.

 

the interpreter, though she must have understood counsel’s question even without the mediation of the interpreter), but is at the same time overhearing the interpreter’s rendition of her answers into English, and presumably counsel’s questions in English. 2.1.2 Diminished role of the interpreter As bilingual counsel or other bilingual participants see an increase in their participant roles in the triadic communication, the role of the interpreter is diminished. In Example (4.5) below, extracted from Case 9, the defence counsel is found to respond to the witness without waiting for the interpreter’s rendition, because of the bilingual knowledge he possesses and the extra role he is capable of playing, that of an overhearer. In so doing, he has effectively diminished the role of the interpreter, who nonetheless goes on with her interpretation; otherwise the nonCantonese-speaking judge would be denied access to the witness’s utterance, and temporarily lose his auditor role.



Chapter 4.  The interpreter as one of the bilinguals in court

Example 4.5 Cross-examination of PW1, Case 9, Rape Turn Speaker SL utterance / Interpretation

English gloss

1

DC

Alright. So, you would realise, would you, that she, she would not come back?

 

2

I

咁所以呢，你當時應該係知道呢， 佢根本就唔會番嚟開門，佢唔會番 嚟喇，係咪呀？

So you must know that she would not come back to open the door. She would not come back. It that right?

3

W

我唔知佢會唔會講大話=

I didn’t know if she had told a lie.

4

DC

=Oh, I see. [Oh, I see.

 

5

I

[I didn’t know that whether she would   lie or not.

In Example (4.6) below, taken from Case 2, however, the bilingual prosecutor’s response to the witness’s answer without waiting for it to be interpreted has resulted in an omission in interpretation, thus denying the monolingual judge access to it. Example 4.6 Bilingual counsel responding to witness’s answer without waiting for interpretation, Case 2, Making a false declaration to an immigration officer Turn Speaker SL utterance / Interpretation

English gloss

1

PC

Uh-huh. Do you remember around what TIME did you ask the defendant to sign on your notebook?

 

2

I

你記唔記得當時大約咩時間，係叫嗰位當事人去-， 喺嗰個筆記簿度簽署㗎？

3

W

係er (3)大概(.)八點:::

It’s er (3) around (.) ei:::ght.

4

PC

(1) Do you need to refresh your memory by taking a look   at (.) your notebook?

5

I

你需唔需要睇一睇嗰個(.)筆記簿，去提一提你㗎?

6

PC

If (.) that could be permitted, Sir. (1) Do you have your notebook with you?

 

As the prosecutor carries on with her examination without realising that the witness’s answer has not been rendered into English, the judge, obviously upset over the omission of interpretation and the resulting unavailability of the witness’s answer, has to inform the prosecutor of the omission a few turns later (Example (4.7)). The witness is subsequently asked to repeat her answer for it to be rendered into English.

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Common law in an uncommon courtroom Example 4.7 Judge informing counsel of omission of interpretation, Case 2, Making a false declaration to an immigration officer Turn

Speaker

Utterance

1

J

So, there’s a bit of her answer that has not been translated=

2

PC

=Oh, I am so sorry, Sir. I do apologise.

3

J

Because you’ve jumped it.

4

PC

I do apologise.

The rest of this chapter will illustrate how counsel in the rape case exploit their bilingual knowledge to manipulate the interpretation in order to achieve their different goals in advocacy, and how the interpreter and the monolingual judge lose their discourse power to the bilingual counsel. It will first explain how opposing sides in the adversarial common-law courtroom seek to construct competing versions of the same story through strategic use of language. It will illustrate how polysemy may pose a problem to the interpreter while enabling bilingual counsel to manipulate both its intralingual and interlingual interpretation in order to work to their advantage.1 3. Strategic use of language in the adversarial courtroom The adversarial common-law courtroom relies heavily on the oral presentation of evidence. A trial is therefore compared to a war of words, as opposing parties try to defeat each other by using language as their weapons (Maley and Fahey 1991: 3), and “in which only one side will win” (Danet 1980: 190). Language is the medium through which competing versions of the same reality are constructed and presented to an impartial audience, i.e. a jury or a judge. While the prosecution tries to construct a story that will prove the guilt of the accused, the defence strives to present one that will at least create a reasonable doubt in the judge’s or the jury’s minds. The success or failure of the battle hinges to a large extent on how effectively language as a weapon is used by the parties. As noted by Mellinkoff (1963), the law is a profession of words, which is echoed by Conley and O’Barr (1998: 3), who contend that “the details of everyday legal practices consist almost entirely of language”. Gibbons (1999: 156) also argues that although law as a social institution is manifested also in a non-linguistic way, it is a “profoundly linguistic institution” as laws are coded in language and the legal process is mediated through the use of language. Ehrlich (2001: 4) contends that “language is the 1.  See E. Ng (2013a) for a full paper on this case.



Chapter 4.  The interpreter as one of the bilinguals in court

primary vehicle through which cultural and institutional ideologies are transmitted in legal settings”. The strategic use of language thus becomes all-important, as Hale (1997: 201) observes, “[n]owhere does language play a more important role than in the adversarial courtroom”. In her study of the O. J. Simpson trial, Cotterill (2003) illustrates how the attorneys employed strategic lexical choices in their attempts to orient the jury towards a particular perception of the trial events and personalities. The prosecution, through the use of words with negative semantic prosodies or connotations such as “encounter” and “control”, aimed to portray Simpson as an aggressive and violent wife-beater. The defence on the other hand strove to dismiss the alleged cycle of violence as mere “incidents”, “domestic disputes”, “verbal debates” and even “conversations”. She suggests that “through the skilful exploitation of different layers of lexical meaning, it is possible for lawyers to communicate subtle and partisan information about victims and alleged perpetrators” (Cotterill 2003: 67). Danet’s (1980) oft-cited study of a trial in a US court, where an obstetriciangynaecologist was charged with and later convicted of manslaughter in connection with a late abortion, best illustrates the strategic use of language in the AngloAmerican adversarial courtroom and the metaphor of the trial as a war of words. During the trial, the prosecution strategically referred to the result of the pregnancy as “baby”, “child” or “person”, which all carry the quality of aliveness and thus justify a manslaughter case. The defence on the other hand opted for terms such as “foetus”, “embryo” or “product of conception”, which convey the notion that the result of the pregnancy was still inside the mother’s uterus and was not alive in the full sense, and therefore the abortion could not have constituted the crime of manslaughter. Through the strategic use of language both sides aimed to persuade the jury to return a verdict in their favour. The conviction of the defendant may suggest that the prosecution succeeded in this war of words. The following section will address the problem of polysemy in court proceedings as opposing sides, both Cantonese/English bilinguals, aim for different interpretations of a polysemous word or expression that will work to their advantage, and the implications of this for the court interpreter will be discussed. 4. Polysemy, ambiguity and context in court interpreting Polysemy refers to the association of one word with more than one meaning. The particular meaning of a polysemous word needs to be decided by the context in which it occurs. Polysemous words can be problematic in the courtroom as opposing parties attempt to arrive at meanings favourable to their case, especially when more than one meaning is possible in a particular context or due to a lack

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of context. In other words, the very nature of polysemy means that contextual ambiguity is often an inevitable result. Danet and Bogoch (1980: 190) point out that ambiguity about the meaning of events is part of our everyday life, but “[w]hat makes the legal process an especially attractive setting in which to study this problem is that in the law, decisions must be made” [italics theirs]. In dyadic monolingual communication, contextual ambiguity can be easily clarified. Court interpreters, however, bound by their professional ethics, cannot freely clarify with the speaker the intended meaning of an ambiguous utterance as interlocutors in a dyadic monolingual communication usually do. The Basic Guidelines for Part-time Interpreters issued by the Judiciary of Hong Kong (Judiciary 2003: 11),2 for example, suggests that “the interpreter is expected to try his/her utmost to interpret accurately and faithfully what was said in full, regardless of how little sense it may make and leave the task of clarification to counsel or the bench [emphasis added]. Less prescriptive codes do suggest that interpreters should clarify with speakers if anything is unclear (e.g. AUSIT 2012; NAJIT 2002; Judicial Council on Cultural Diversity 2017) but should inform “all participants of what is happening” (AUSIT 2012: 14). However, in a highly charged courtroom setting, frequent requests for clarification, as J. Lee (2009: 96) suggests, “might be perceived as indicating the interpreter’s incompetence, and as an unnecessary disturbance of the smooth flow of the proceedings”, which may also be a threat to the interpreter’s professional dignity (ibid.). Moreover, the use of “short consecutive” as the norm in legal interpreting (De Jongh 1992: 38), whereby the interpreter works with relatively short chunks of information at each turn, means that the contextual information available to the interpreter in court examination is, “limited to the local context unfolding at each turn” (J. Lee 2009: 94), or what Hatim and Mason (1997: 50) refer to as the “local cohesion” covering no more than two or three sentences. Hatim and Mason (1997: 50) suggest that to overcome this limitation, liaison interpreters, (a term which includes court interpreters), “resort to a more readily accessible strand of textuality” or what they later refer to as “context”. This means that court interpreters, like other liaison interpreters, have to rely heavily on the local linguistic context for their interpretation of an ambiguous utterance. The contextual information available to court interpreters is, however, limited, not only because of the mode of interpreting used in court, but also because interpreters are often not given access by the court to documents or other information pertaining to the case before the trial for reasons of confidentiality. It follows that interpreters do 2.  This set of guidelines is issued specifically for part-time interpreters, while full-time interpreters are not provided with a similar code of ethics. There is no reason, however, to assume that most of the guidelines set out under “etiquette” do not apply also to full-time interpreters.



Chapter 4.  The interpreter as one of the bilinguals in court

not have the same access to the contextual information of a trial as do the other participants in the court proceedings: the witnesses and the defendant have direct experience of the case at trial and have had their own (and presumably different) versions ready to tell the court; counsel must have familiarised themselves with all the details of the case before the trial starts; by contrast the interpreter is kept in the dark and often has to work with limited contextual information to interpret the speaker’s meaning. This is particularly problematic for interpreters working from an inexplicit source language such as Korean to English (J. Lee 2009). What J. Lee (2009) has identified as inexplicit features of the Korean language are also true of Chinese, including the absence of singularity and plurality marking for nouns and of the conjugation of verbs as well the frequent use of ellipsis. These features render both Korean and Chinese highly context-dependent languages and thus can pose a problem to interpreters working with limited contextual knowledge of the case at trial. The notion of context is central in any interaction. Drew and Heritage (1992: 18) define context in interaction as both “the immediately local configuration of preceding activity in which an utterance occurs” and the “larger environment of activities within which that configuration is recognised to occur”. They suggest that utterances are doubly contextual in that they are both context-shaped and context-renewing because while the interpretation of an utterance is decided by the context in which it occurs, “the current utterance will itself form the immediate context for some next action in a sequence […]” (Drew and Heritage 1992: 18). Following Drew and Heritage (1992), Ehrlich (2001: 31) suggests that the question-answer sequences of a trial are illustrative of the doubly contextual nature of utterances, as a question in a question-answer sequence depends on previous utterances for its production and interpretation, and at the same time it shapes and constrains the utterance (the answer) that will follow. This is echoed by Janney (2002: 458), who notes that “interpretations of utterances depend on information provided by earlier utterances in the sequence and, at the same time, constitute information necessary for interpreting later utterances in it”. This suggests that interlocutors, whether in ordinary conversations or courtroom interactions, do benefit from earlier utterances in their interpretation of later, in particular, ambiguous utterances. Interpreters working in the courtroom, however, do not enjoy the same degree of latitude as other participants in the proceedings do in their interpretation of contextual clues. When it comes to the interpretation of ambiguous words or expressions, the interpreter’s decision to opt for one meaning rather than another based on the contextual clues may be challenged by parties who decide that it would favour their case if the word were interpreted otherwise.

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The analysis below illustrates the problem of polysemy in an interpreter-mediated trial conducted in English and the divergent strategies adopted by the crossexaminer and the interpreter in the pursuit of their respective goals. In this case, both the prosecution and the defence counsel are bilingual in English and Cantonese, but the judge speaks only English, as was mentioned above. The point at issue is the polysemous Cantonese word saam1 衫 uttered by the defendant in his evidence-in-chief. 4.1 The issue: Meanings of saam1 The word saam1 in Cantonese (or shān in Mandarin Chinese) is polysemous. The New Chinese Dictionary (Liu 1993) gives two meanings to this Chinese character: 1. 單上衣 (upper garment); 2. 泛指衣服 (a generic reference for clothes). In other words, saam1 can be a generic term to refer to clothing/garment (usually used without a quantifier), or a more specific term, usually used with a quantifier gin6 件 (piece), to refer to a piece of clothing worn on the upper part of one’s body (a shirt, a blouse, a jumper and even a jacket). If it is understood in the latter sense, it is usually translated as “upper garment” in the Hong Kong courtroom. However, the use of a quantifier alone does not serve as a clear-cut distinction between the meanings of this problematic word. For example, the expression ngo5 dong1 si4 mou5 zeok6 saam1 我當時冇着衫 (without the presence of a quantifier gin6) can be taken to mean both “I was not wearing any clothing at that time, i.e. being naked” and “I was not wearing any upper garment at that time”. In other words, the absence of gin6 does not automatically give the word a generic sense, and vice versa. For example, the utterance ngo5 jat1 gin6 saam1 dou1 mou5 maai5 dou3 我 一件衫都冇買到 is usually understood to mean “I didn’t buy even a single piece of clothing” despite the presence of the quantifier gin6. The argument in this case lies in the interpretation of the meaning of this particular word in Cantonese. 4.2 Prosecution case It is the prosecution’s case that the victim, Miss M, was raped by the defendant in his home. Miss M, a lesbian, had been a cohabitant of the defendant’s sister and had for over a year lived in the same premises where the defendant resided and where the alleged rape subsequently took place. On the day of the incident, Miss M’s relationship with the defendant’s sister had broken up and she had moved out of the flat, to which she returned to pack her belongings. At the material time, no one was home except the defendant. According to Miss M, and the defendant’s



Chapter 4.  The interpreter as one of the bilinguals in court

own evidence, the defendant was wearing only a pair of shorts prior to the sexual intercourse, without any clothing on the upper part of his body. Miss M was raped while she was lying on the top bed of a bunk taking a nap after packing her belongings. According to her evidence, she could not resist the defendant’s advance as she was weak and feeble at the material time, and she did not report to the police immediately after the incident because she was confused, but talked to her friends, who suggested that she report the case to the police. 4.3 Defence case The defendant did not dispute having sex with Miss M, but alleged that the sexual intercourse was consensual. He elected to testify in the witness box and described in his evidence-in-chief how Miss M pulled his saam1 while he was standing on the ladder of the bunk bed, and he took the pulling as an invitation for him to go up to the bed. He acted accordingly and had sex with her on the bed. Example (4.8) extracted from the transcript of his testimony-in-chief and the rendition by the interpreter contains his description of Miss M’s pulling. Example 4.8 Examination-in-chief of defendant, Case 9, Rape Turn Speaker SL utterance / Interpretation

English gloss

1.

D

咁喺同一時間，(.)佢就:si:-, eh用佢嘅:左手就(.)少少彎彎 地，就拉住我件衫，啫係腰 度件衫。

Then at the same time, (.)she si: eh slightly bent her left arm to pull my piece of garment/upper garment (gin6 saam1), that is, my piece of garment/upper garment (gin6 saam1) at the waist area.

2.

I

And then-, 你再講多一次。

And then-, say that again.

3.

D

Er佢用佢嘅左手拉我er腰度， She used her left hand to pull my waist area, that is, the garment-, piece of garment/ up啫係腰部份嘅-, 件衫。 per garment (ge3gin6 saam1) at my waist area.

4.

I

And then, she used her left   hand to pull the um (.) garment at my eh waist area.

4.4 The interpreter’s strategy Note that the quantifier 件gin6 is used before the word saam1 by the defendant, which seems to suggest a more specific meaning of the word – upper garment. However, the interpreter’s choice of the word “garment” in her interpretation seems to be a well-deliberated decision, bearing in mind that it had been established in

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Common law in an uncommon courtroom

both Miss M’s and the defendant’s previous own testimony that the defendant was not wearing any “upper garment” throughout the whole incident. The use of the word saam1 with the quantifier gin6 by the defendant seems to take the interpreter by surprise. Her request in turn 2 for the answer to be repeated without first asking for the court’s leave to do so may be regarded as a delaying tactic to buy her time as she searches for an English equivalent for the Cantonese word saam1. Note also the filler “um” and the brief pause before she utters the word “garment” in turn 4. Apparently, the interpreter, having gained the extra time from the defendant’s repetition of his answer and a brief hesitation of her own, decides to opt for an interpretation consistent with the alleged victim’s and the defendant’s earlier evidence. In other words, the witness’s and the defendant’s earlier utterances have shaped her interpretation of the word in question. Her goal to strive for unity and consistency nonetheless goes against that of the cross-examiner. 4.5 The cross-examiner’s strategy One of the central goals of cross-examination is to “weaken the case for the other side by discrediting the testimony of the witness in chief ” and the usual strategy is to contradict evidence given by the witness (Salhany 1988: 7–9). This is done with the aim to create reasonable doubt in the mind of the jury or the judge as to the credibility of the witness. It follows that when faced with a polysemous or an ambiguous word or expression in a witness’s utterance, what the cross-examiner is after is an interpretation which will create contradictions or inconsistencies with the witness’s earlier utterances. The interpreter’s rendition of saam1 as “garment”, which has in effect removed a possible contradiction with the defendant’s earlier utterances, was nonetheless not challenged by the prosecutor at this stage. It is possible that the prosecutor wanted to leave reasonable doubt in the mind of the jurors, who were all English/ Cantonese bilinguals, with Cantonese as their native language and would most likely rely on witnesses’ testimony in Cantonese, rather than the interpreted version for their verdict.3 Challenging the interpreter’s rendition in the defendant’s evidence-in-chief would give the defence counsel an opportunity to clarify with the defendant what he meant by his utterance of the word saam1, which would most likely result in contextual ambiguity and hence a reasonable doubt being removed. Instead, the prosecutor chooses to question the credibility of the defendant’s testimony in his cross-examination of him by pointing out to him the contradic-

3.  I witnessed the empanelling of the jury on the first day of this trial as I took my students to the High Court for a visit.



Chapter 4.  The interpreter as one of the bilinguals in court

tion in his evidence. In Example (4.9), the prosecutor first gets the defendant to confirm that he was not wearing any upper garment during the whole event. Example 4.9 Cross-examination of defendant, Case 9, Rape Turn Speaker SL utterance / Interpretation

English gloss

1

PC

Alright. From the moment you   opened the door for Miss M (.) until the sexual intercourse completed, nothing at the top?

2

I

咁啫係話呢，係由你呢-, er打從你 一開始去開門俾阿M小姐呢，直 至到呢，就係話哩一個嘅性交完 事之(.)後呢，em當時亦都係赤裸 上衫嘅-, er赤-，赤裸上身嘅，係 咪呀？=

In other words, from the moment you opened the door for Miss M till you, that is, till the completion of the sexual intercourse, em you were all along without upper garment-, er without-, with your upper body naked. Is that right?

3

D

=係。

Yes.

4

I

Yes.

 

Having got the defendant to confirm that he was not wearing any upper garment, the prosecutor proceeds to suggest that there was no such pulling by Miss M as alleged by the defendant and accuses the defendant of fabricating a story favourable to him, as illustrated in Example (4.10). Note that the prosecutor uses “upper garment”, in both turn 5 and turn 9, despite the interpreter’s rendition of the word saam1 as “garment”. In the Cantonese interpretation in turns  6 and 10, the interpreter has to add the word soeng6 上 (upper) before saam1 – soeng6saam1 – to differentiate it from the more ambiguous word saam1 and of course her rendition of it as “garment”. However, since the actual word uttered by the defendant is saam1, not soeng6saam1, the interpreter must have realised the need to reconcile the discrepancy in her Cantonese interpretation in turn 10 when she hesitates after rendering “upper garment” as soeng6saam1 and finally settles on saam1, in an obvious attempt to make her interpretation consistent with the actual word used by the defendant, and presumably her interpretation of it as “garment” as well. It must also be noted that the term soeng6saam1 is marked and not an ordinary or idiomatic expression.

63

64 Common law in an uncommon courtroom Example 4.10 Cross-examination of defendant, Case 9, Rape Turn Speaker SL utterance / Interpretation

English gloss

1

PC

=Alright. Now, you have made up (.) a very good story about how (.) that day developed into your going up onto (.) her bed.

 

2

I

咁你呢，就係呢，係作咗個好嘅古仔 呢，就係話當日呢，係個事情呢，係 點樣發展到呢，你呢就係上咗去佢嗰 張床度喇。

And you, you made up a good story to explain how the event on the day in question developed to the stage of you going up onto her bed.

3

D

我冇作到古仔，[我可以發誓。

I didn’t make up a story. [I can swear.

4

I

[I didn’t. I didn’t eh make up any story. I   can swear(.) by God.

5

PC

There was only one hitch though. You were not wearing any upper garment that day.

6

I

咁但係呢，有一點就係話當時呢，你 But there is one thing, that is, you 係冇着到任何嘅上衫個噃，係咪呀？ were not wearing any upper garment (soeng6saam1). Is that right?

7

D

係。

Right.

8

I

Yea.

 

9

PC

So, how could she have pulled (.) you by the upper garment (.) at the waist position?

 

10

I

咁佢當時又點樣係扯你嗰件上衫-， 係eh腰部嘅衫呀？

So how could she have pulled your upper garment (soeng6saam1), that is, eh, garment (saam1) at the waist position?

 

The prosecutor’s challenge of the defendant’s evidence has now necessitated the expatriate judge’s review of his notes. The judge, being monolingual in this context, can only follow the testimony based on the English interpretation. As the interpreter has rendered saam1 as “garment”, not “upper garment”, his notes show no inconsistency in the defendant’s testimony. Example (4.11) demonstrates the discussion between counsel and the judge in this regard. The long pause of 19 seconds in the judge’s utterance in turn 1 is the time he used to locate his running note on this particular piece of evidence.



Chapter 4.  The interpreter as one of the bilinguals in court

Example 4.11 Interaction between judge and counsel, Case 9, Rape Turn Speaker Utterance 1

J

Now, the question is, did he say she pulled him by the shorts, or at the waist area. (19) Well, my note reads “she used her left hand to pull my garment (.) [at the waist area”.

2

DC

[Yea.

3

PC

[Yes, I have got the Chinese as well, (.) My Lord.

4

DC

“Garment”, he said.

5

J

“Garment”, (.) not “upper garment”.

The prosecutor, however, points out in Example (4.12) below that the word “garment” is the interpreter’s rendition, whereas the word from the mouth of the defendant is saam1, which he has understood to be “upper garment” – a result of his de-contextualisation of the word. This subsequently leads to the playback of the recordings. Example 4.12 Interaction between judge and prosecution counsel, Case 9, Rape Turn Speaker Utterance 1

PC

It was-, it was-, the Chinese was saam1. One can (.) play back the video-, the, the digital (.) recording. Although “garment” was the word er used by the lady interpreter, the Chinese out of the mouth of the witness was saam1, which means “upper garment”.

2

J

(12) Er well, better listen to this.

In his later argument, the prosecutor also mentions the use of “upper garment” by the defence counsel in his follow-up question to the defendant regarding the alleged pulling by Miss M, which the prosecutor suggests is an indicium that the word saam1 uttered by the defendant is also understood by the defence counsel, as a Cantonese speaker himself, to mean “upper garment”. Example (4.13) is the followup question by the defence counsel (DC) in the examination-in-chief earlier on. Example 4.13 Examination-in-chief of defendant, Case 9, Rape Turn Speaker SL utterance / Interpretation

English gloss

1

DC

Now, when, when she used the hands to touch or drag-, pull your, your, your garment, upper garment, at the waist le-, area, did you treat as invitation from her to (.)to go up to the bed?

 

2

I

嗱，當佢呢，係用隻手呀去，去扯你er 哩一個腰嗰件-，er嗰個衫-，嗰啲嘅衣物 嘅時候呢，你::係咪er視佢哩個動作呢， 作為係一個邀請呀？

Now, when she used her hand to pull, pull your, uh, piece-, uh that one garment-, the clothing at the waist area, did you:: take that as an invitation?

65

66 Common law in an uncommon courtroom

A closer look at the transcript, however, shows that DC starts off by using the word “garment” before switching to “upper garment”, which in a way demonstrates his own indecisiveness over the meaning of this word. As in Example (4.10), the interpreter seems to have a problem with DC’s use of the term “upper garment”, which after all is not her rendition of the defendant’s utterance of saam1. She is first observed to use the quantifier “piece” (gin6, which as mentioned above, would tend to give saam1 a meaning of “upper garment”). Following a brief hesitation, she changes to another quantifier “one” (go3), which is, however, not an appropriate quantifier to collocate with saam1, before settling on “those” (go2di1ge3) followed by a generic term “clothes/clothing” (ji1mat6), which she has finally come up with to replace the ambiguous word saam1. Her move again can be regarded as an effort to strive for consistency in her interpretation of the defendant’s utterance of “saam1” as “garment”. Following the playback of the recordings, the judge summarises the evidence in Example (4.14). Example 4.14 Interaction between judge and defence counsel, Case 9, Rape Turn Speaker Utterance 1

J

My interpreter interpreted it as “garment” in English, [not “upper (.) garment”.

2

DC

[Yes, yes.

3

J

But, he did use the word saam1.

4

DC

Yes.

5

J

Em (.) when you asked him (.) the follow-up question, (.) you (.) said “garment”, [“upper garment”

6

DC

[first.

In Example (4.15), the prosecutor goes on to suggest that the translation of saam1 as “garment” by the interpreter is not accurate, citing DC’s reference to it as “upper garment” in his follow-up question to reinforce his argument. Example 4.15 Interaction between judge and prosecution counsel, Case 9, Rape Turn Speaker Utterance 1

PC

Saam1, the Chinese used by the accused himself was saam1, and it was translated (.) as “garment”=

2

J

=Yes, you say that the translation is incorrect. It should be “upper garment”?

3

PC

To be er, to be exact, it should be “upper garment”. But, Mr. W somehow got the point and asked the question by using the word “upper garment”.



Chapter 4.  The interpreter as one of the bilinguals in court

The prosecutor’s argument suggests a more advantageous participation status for himself as a result of his bilingualism as compared with the monolingual judge, who has no access to the defendant’s evidence in Cantonese. It is evident that the bilingual prosecutor, apart from his default role as the addressee of the interpreted evidence, takes on also the role of overhearer of the witness’s evidence in Cantonese (turn 1). The pluralistic roles further empower him to act as an adjudicator or assessor for the accuracy of the interpretation and eventually to flag an interpreting mistake. 5. The interpreter’s dilemma Now the time has come when the interpreter could be confronted with a misinterpretation allegation. This inevitably places the interpreter in a dilemma: adopting the suggestion of the prosecutor is tantamount to the confession of an interpretation error and would entail a loss of face on the part of the interpreter, whereas insisting on her earlier interpretation would certainly spark further heated discussion and would most likely attract criticism or even hostility from the prosecutor, neither of which seems to be an easy way out for the interpreter. The interpreters’ code of ethics in general (e.g. AUSIT 2012; ITIA 2009; Judicial Council on Cultural Diversity 2017; Judiciary 2003; NAJIT 2002) emphasises the need for interpreters to correct promptly any mistakes or errors made, yet the interpreter in this case might not perceive this as a real mistake, but rather as a matter of interpretation. In any case, a decision has to be made. The decision, however, may not have much to do with what is set out in the codes, but might rather be one based on the interpreter’s own practical consideration or concern under the prevailing circumstances. In this case, the interpreter might be more concerned about maintaining a collegial relationship with counsel, just like the interpreter in Example (2.3) cited in Chapter  2, who was asked by the judge to explain to the defendant the bail terms and matters relating to legal representation without the judge himself uttering those words, which is obviously beyond the scope of the interpreter’s duties. Besides, as saam1 is indeed notoriously ambiguous in meaning, the interpreter might not want to commit herself by insisting on her original interpretation and categorically defending her position. Since the judge does not speak Cantonese, he cannot act as a referee and therefore has to leave the matter entirely in the hands of the interpreter as indicated in turn 1 of Example (4.16).

67

68 Common law in an uncommon courtroom Example 4.16 Interaction between judge and court interpreter, Case 9, Rape Turn Speaker Utterance 1

J

(7) Well, I suppose insofar as the first one is concerned, the question is whether my interpreter is happy with the interpretation she’s uh, she’s given, or whether she wants to er qualify that in any way.

2

I

< whispering >Yeah, I am happy with that=

3

J

=You are happy with interpretation just “garment”?

4

I

Er with er “upper”.

5

J

“upper garment”, okay. Right.

The interpreter’s response in turn 2 is ambiguous and has led the judge to believe that she would leave the interpretation as just “garment” (turn 3). The judge seems to be taken aback by the interpreter’s decision to adopt the prosecutor’s suggestion and there is also a tone of resignation in his utterance in turn 5, which in a way reflects his loss of power and control over the communicative act as a monolingual participant in this triadic communication. There is also a touch of embarrassment and resignation in the interpreter’s tone of voice, which seems to suggest that she is not as entirely “happy with that” as she claims to be. It is interesting to note that during all these discussions about the interpretation of the word saam1 in Examples (4.11), (4.12), (4.14), (4.15) and (4.16), which occurred while the defendant was testifying in the witness box, no chuchotage was provided for the defendant, whose participation status was inevitably compromised, as would be the other NES or NNES court actors including possibly the jury. Since the discussion was about the accuracy of her interpretation, the interpreter might find it a little embarrassing to provide an interpretation of the discussion to the defendant. Of course, in Example (4.16), the interpreter could not have provided any interpretation as she was one of the primary interlocutors in the interaction. The issue of NES and NNES court actors’ participation status and its implications will be further discussed in the later chapters of this book. Now having successfully established that saam1 equates with “upper garment”, the prosecutor goes on to suggest to the defendant that since he was not wearing any upper garment at the material time, there was no such pulling by the victim and that the alleged invitation from her is a story invented by the defendant. Seeing that the defendant’s evidence has been attacked by the prosecutor for want of consistency, which could be potentially damaging to the defence case, DC makes use of the re-examination process to give the defendant an opportunity to account for the contradiction. In Example (4.17) below, DC tries to clarify with the defendant what he means by his utterance of the very word saam1.

Chapter 4.  The interpreter as one of the bilinguals in court 69



Example 4.17 Re-examination of defendant, Case 9, Rape Turn Speaker SL utterance / Interpretation

English gloss

1

DC

Now, but, when you said in the evidence, which is recorded, 腰部 , 腰部嘅 衫< jiu1 bou6 ge3 saam1 – garment/upper garment at the waist area>, (.) what, what do you mean by that?

 

2

I

咁當你呢，喺你個證供所講嘅就係講到係「腰 部嘅衫」，其實你係-, 你嘅意思係講乜嘢呀？

So in your evidence you said 腰部嘅衫 < jiu1 bou6 ge3 saam1>. What did you mean by that?

3

D

啫係講緊(.)橡筋嗰個位，[e:r

I meant the elastic band area.

4

I

[Er what I meant was that the elastic er area.

 

5

DC

Area of what?

 

6

I

係er橡筋邊個位呀？=

Yes, er which part of the waistband?

7

D

=Er褲嗰橡筋嗰個位。

Elastic band of the shorts/trousers.

8

I

That is the elastic of (.) the shorts area.

 

9

DC

You mean the band of the, of the shorts?

 

10

I

啫係話褲頭係咪呀？

That means the waistband?

11

D

係。

Yes.

Notice the omission of the quantifier gin6 by DC in his quotation of the defendant’s earlier testimony. In turn 1, Example (4.8) cited earlier, the defendant says “我件衫，啫係腰度件衫” (ngo5 gin6 saam1, zek1 hai6 jiu1 dou6 gin6 saam1 – my piece of garment/upper garment, that is, the piece of garment/upper garment at the waist area), with the placing of the quantifier gin6 before saam1 in two places in his initial utterance. When asked by the court interpreter to repeat his answer, the defendant says in turn 3 of the same extract “腰部份嘅-,件衫” (jiu1 bou6 fan6 ge3 gin6 saam1 – the garment-, piece of garment/upper garment at the waist area) as an elaboration of his answer in turn  1, which again includes gin6 before the word saam1. However, this utterance is not grammatical, with the insertion of the possessive particle ge3 before gin6, as ge3 and gin6 are syntactically redundant and semantically mutually exclusive. As has been pointed out earlier, the use of gin6 before saam1 in this context tends to give saam1 a more specific sense. By contrast, the use of ge3 before saam1 is likely to make it a generic reference. It seems that the

70 Common law in an uncommon courtroom

utterance of ge3 by the defendant in the first place is a slip of the tongue, which he has then corrected to gin6. Now DC must have realised the damaging effect that the use of gin6 might have on the credibility of the defendant when he quotes the defendant’s earlier testimony with this word omitted. This has the effect of rationalising the defendant’s subsequent explanation about his intended meaning of saam1. 6. Conclusion This chapter has illustrated an augmentation in the power of bilingual participants, especially bilingual counsel, as they take on extra audience roles of both versions of the trial talk in the triadic communication. It also demonstrates an apparent loss of power on the part of the monolingual judge, who, unlike the bilingual counsel, has no access to the other version of the court proceedings and thus has no role to play in time of a dispute over the accuracy of interpretation. As demonstrated in the rape case, the court interpreter has seen her power as a communicator in the triadic exchange diminished by the bilingual counsel. It is evident that bilingual participants, in addition to their ratified audience roles as addressees or auditors, assume also a non-ratified overhearer role of the version of the talk not originally intended for them. With the access to both versions of the trial discourse, these bilinguals are placed in a more advantageous position and have more power and control over the communicative act. The interpreter’s concession may be regarded as a submission to the power in court. It has also illustrated the metaphor of the trial in the adversarial courtroom as a battle of words and the problem of polysemy in an interpreter-mediated trial. It has exemplified how the interpreter’s aim to avoid contradictions by making her interpretation of a polysemous word consistent with the preceding context runs counter to that of the cross-examiner, whose primary goal is to identify inconsistencies in the opposition witness’s testimony in order to discredit him. This chapter has also demonstrated court interpreting in the post-colonial Hong Kong courtroom as a more transparent process with the presence of other bilinguals and the installation of DARTS, as compared with the state of affairs in the early colonial days and in many other jurisdictions where the interpreter is usually the only bilingual. While this suggests that justice will be better safeguarded, it inevitably subjects the court interpreter to tremendous external pressure, and the flagging up of an interpreting mistake, real or perceived, by bilingual court personnel may lead monolingual court actors to cast doubt on the capability of the interpreter. This chapter has also touched on the participation status of NES



Chapter 4.  The interpreter as one of the bilinguals in court

and NNES court actors during English monolingual interactions among the court personnel, which will be further elaborated in the chapters that follow. The next chapter will present a less common court scenario where the interpreter works with counsel and a judge who do not share her bilingual knowledge and with a witness who testifies in Mandarin, not Cantonese. It will compare the power of the interpreter and that of the monolingual court actors and evaluate how the interpreter’s intervention in the process of witness examination may impact on the participation status of monolingual court actors, including possibly jurors. It will also evaluate the impact on the competence of the court interpreter and the credibility of the witness in the eyes of jurors and other court actors.

71

Chapter 5

Interpreter intervention in witness examination

The previous chapter illustrated an augmentation in the power of bilingual participants, especially counsel, in court as they take on extra audience roles by exploiting their bilingual knowledge in the triadic communication to work to their advantage. Meanwhile, it demonstrated an apparent loss of power on the part of the monolingual judge and the court interpreter. This chapter explores how monolingual counsel and the judge may lose their power and control over the evidence when the interpreter, as the only bilingual in the triadic communication, assumes an active participant role by initiating turns with the speaker. It discusses the impact of such interpreter intervention on the participation status of co-present court actors.1 1. The power of the interpreter as the only bilingual in the triadic communication As was pointed out in previous chapters and demonstrated in the preceding chapter, it is nowadays commonplace for court interpreters in Hong Kong to work with bilingual court actors in their day-to-day work in court. This inevitably impacts on the power of the interpreter and on the communicative act. This chapter presents a less common scenario, with data taken from the murder case (Case 8). In this trial, the defendant was charged with murder for killing his landlady’s ex-husband, who had accompanied his ex-wife to the leased flat to pursue outstanding rent from the defendant. The defendant speaks Cantonese; the judge, the prosecution counsel and the defence counsel are all English-speaking monolinguals. As a matter of fact, this is the only trial in my data in which neither the counsel nor the bench speaks Cantonese. The first prosecution witness (PW1), the landlady, testified in Mandarin. As has been pointed out in Chapter 2, when a trial involves a witness or defendant speaking a language other than Cantonese or English, a second interpreter usually has to be used. In an English-language trial, if the second 1.  See E. Ng (2016b) for a full-length paper on this issue.

74

Common law in an uncommon courtroom

interpreter’s other working language is Cantonese, not English, relay interpreting is often inevitable, with the staff interpreter working between Cantonese and English and the second interpreter working between Cantonese and the other language or dialect, as in the blackmail trial (Case 4) cited in Chapter 2. In Case 8, the case under discussion, however, since the staff interpreter is trilingual and also speaks Mandarin, counsel’s questions are interpreted from English into Mandarin and the witness’s answers from Mandarin into English direct without a relay in open court and in the consecutive mode. However, this case does involve a second interpreter for providing chutotage of the English-Mandarin interactions into Cantonese for the benefit of the Cantonese-speaking defendant, who otherwise would be excluded from participation in the proceedings. However, since the Cantonese interpretation is provided in chuchotage, audible only to the defendant, the other Cantonese-speaking monolinguals in court are effectively excluded from participating in the proceedings. With the counsel and the judge being monolingual, and the witness testifying in a language unfamiliar to most in court, the interpreter enjoys a similar degree of power as that of a bilingual in a typical bilingual court. The augmentation in her power is manifested in the active role she assumes in initiating conversation turns with the interlocutors, especially with the Mandarin-speaking witness. Since initiating turns, especially with a witness, is a key element of the power shift, in that it inevitably takes away the control of the witness from the examining counsel, the rest of this chapter will be devoted to a closer examination of this phenomenon. 2. Interpreter-initiated turns – the norm In various codes of ethics governing the practice of court interpreting, stress is always placed on the need for the interpreter to adhere to the principles of accuracy and impartiality. The former requires interpreters to provide a faithful rendition of the source-speaker’s words, without addition or omission, while the latter emphasises the need for interpreters to maintain professional detachment and to avoid bias and any real or perceived conflict of interest. The principle of impartiality also requires interpreters to limit their role to interpreting and to refrain from engaging in private conversations with anyone involved in the court proceedings. With regard to accuracy in court interpreting and impartiality of the interpreter, the Basic Guidelines for Part-time Interpreters state: A [p]art-time interpreter must interpret faithfully  – without addition or omission  – everything said in court. It is anticipated that, occasionally, interpreters may encounter witnesses who speak incoherently or unintelligibly. In those



Chapter 5.  Interpreter intervention in witness examination

circumstances, past experience shows that interpreters tend to ask questions to clarify what a witness has just said. This is what an interpreter must refrain from doing, no matter how commendable his/her intentions may be. He/she should never give the people in the courtroom an impression that he/she is engaged in a private conversation with the witness, particularly when those present do not speak the language or dialect he/she speaks. The interpreter is expected to try his/ her utmost to interpret accurately and faithfully what was said in full, regardless of how little sense it may make and leave the task of clarification to counsel or the (Judiciary 2003: 11; emphasis added) bench […].

Note that the guidelines emphasise the need for the interpreter to refrain from clarifying with the witness, “particularly when those present do not speak the language or dialect he/she speaks”. This is presumably intended to minimise the power the bilingual interpreter enjoys over the monolingual interlocutors, as suggested by Anderson (2002), and thus its impact on the proceedings. The guidelines do suggest, however, that interpreters should bring to the court’s immediate attention any difficulties in interpretation. In other words, should interpreters wish to clarify any unclear utterances, they can do so via the court. It is also recommended by the Judicial Council on Cultural Diversity (2017: 14) in Australia that interpreters should seek clarification if needed, but that any requests for repetition, clarification and explanation “should be addressed to the judicial officer rather than to the questioning counsel, witness or party”. However, in reality, court interpreters may be concerned about the inevitable disturbance to the smooth flow of a trial if all the clarifications have to be preceded by a request for the court’s leave to do so, especially when frequent clarifications have to be made due to witnesses’ incoherent or unclear utterances. As was mentioned in the previous chapter, the interpreter may, knowingly or unwittingly, choose to deviate from the codes out of practical considerations or in response to the prevailing situation. In what follows, I am not going to focus on ethical issues, but will merely be presenting the reality, without making value judgments. 3. Interpreter-initiated turns – quantitative results Throughout PW1’s examination-in-chief and cross-examination, the interpreter is observed to initiate turns with her on many occasions, without seeking permission from the court, and often casts herself in the role of the examining counsel, or as a coordinator of the talk. Table 5.1 shows the turn distributions in both the examination-in-chief and cross-examination of PW1.

75

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Common law in an uncommon courtroom

Table 5.1  Turn distribution in Mandarin-speaking first prosecution witness’s (PW1) examination-in-chief and cross-examination, case 8, Murder Speaker

No. of turns (in-chief)

%

No. of turns (cross)

%

Interpreter

   715

47.5%

  911

47.7

PW1

   424

28.1%

  471

   24.7%

Prosecution Counsel

   308

20.5%

    9

    0.5%

Defence Counsel

     8

  0.5%

  453

   23.7%

Judge

    51

  3.4%

   63

    3.3%

    1

    0.1%

1,908

  100%

Unidentified speaker

 

 

Total number of turns

1,506

100%

The turn distribution table above shows that PW1, despite her prescribed role as an answerer who can only take questions from counsel, has far more speaker turns than the examining counsel, especially in her examination-in-chief, where PW1’s turns exceed those of the prosecution counsel by more than one third. This suggests that part of PW1’s turns may have resulted from interpreter-initiated turns (or IITs for short), instead of turns in response to the examining counsel’s questions. This is itself evidence of the examining counsel’s loss of control over the turn-taking in the communicative process. A close examination of the turn exchanges reveals a total of 200 IITs in the examination-in-chief of PW1, representing 13.3% of the total turns, or 28% of the total interpreter turns. Of the 200 IITs, 190 are made with PW1 and 10 with the examining counsel (see Table 5.2 below). Table 5.2  Interpreter-initiated turns (IITs) in first prosecution witness’s (PW1) examination-in-chief and cross-examination, case 8, Murder Type of IITs Inchief

% of total speaker turns (1,506)

% of total interpreter turns (715)

Cross % of total speaker turns (1,908)

% of total interpreter turns (911)

IITs with PW1

190

12.6%

26.6%

102

5.4%

11.2%

IITs with examining counsel

  10

  0.7%

  1.4%

   6

0.3%

  0.7%

Total

200

13.3%

  28%

108

5.7%

11.9%

The cross-examination of PW1 too has a large number of IITs, although the interpreter intervenes less frequently than she does in the examination-in-chief, presumably because she has been furnished with most of the details of the case



Chapter 5.  Interpreter intervention in witness examination

and thus the need for clarifications is significantly reduced. The other reason is that the majority of the questions in cross-examination are confirmation-seeking questions (CSQ), whereas questions in examination-in-chief are mostly information-seeking (ISQ – commonly known as WH-questions) (see Hale 2004; Harris 1984; Woodbury 1984 for question categories in witness examination), and the witness’s answer is often limited to a choice between a “yes” and a “no”, typically in the form of “do you agree with me” or “is it true that”. The need to clarify with the witness in cross-examination thus diminishes, though the interpreter may sometimes need to clarify with the examining counsel in cases of long and syntactically complicated questions. There are 108 IITs in the entire cross-examination process, representing 5.7% of the total turns or about 12% of the total interpreter turns. Of the 108 IITs, 102 are made with PW1 and 6 with the examining counsel (see Table 5.2 above). In comparison, the examination-in-chief and the cross-examination of the Cantonese-speaking defendant have only 6 and 10 occurrences of IITs out of a total of 534 and 963 turns respectively (Table 5.3), and in each case represent only slightly over 2% of the total interpreter turns. Table 5.3  Interpreter-initiated turns (IITs) in defendant’s examination-in-chief and cross-examination, case 8, Murder Type of IITs

Inchief

% of total % of total speaker turns interpreter (534) turns (253)

Cross % of total % of total speaker turns interpreter (963) turns (459)

IITs with defendant

5

0.9%

  2%

 5

0.5%

1.1%

IITs with examining counsel

1

0.2%

0.4%

 5

0.5%

1.1%

Total

6

1.1%

2.4%

10

  1%

2.2%

4. Typology of interpreter-initiated turns Berk-Seligson (1990: 65) regards the dialogues initiated by interpreters as “the interpreter’s attention-drawing behavior”, arising from the need to clarify witnesses’/ defendants’ answers and attorneys’ questions, to account for witnesses’/defendants’ side comments, to prompt witnesses/defendants to speak, or otherwise to silence them. Hale’s study of the New South Wales courtroom in Australia suggests the following seven reasons for interpreter interruptions (Hale 2001: 2):

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Common law in an uncommon courtroom

1) 2) 3) 4) 5) 6) 7)

To ask for clarification of a question or an answer To correct a question when it is an obvious unintentional mistake To finish interpreting a previous, interrupted utterance To provide unsolicited information To offer a personal opinion To protest to the bench for being interrupted To help the witness with his/her case

The above categories are subsequently reduced to six in her later study (Hale 2004), with category no. 7 removed from the list (a sensible move as the claim itself could not be easily substantiated; the example cited to illustrate this category simply shows the interpreter repeating her interpretation when the counsel seems to have deliberately misquoted it to help his case). With Berk-Seligson’s and Hale’s typologies as a point of reference, I have arrived at a typology of nine categories among the IITs identified and quantified in the examination of PW1 and present them in Table 5.4 below. Table 5.4  Interpreter-initiated turns (IITs) in first prosecution witness’s (PW1) examination-in-chief and cross-examination, case 8, Murder Types of IITs

Inchief

%

Cross %

1. To seek confirmation

  78

  39%

  33

30.6%

2. To seek clarification

  70

  35%

  57

52.8%

3. To seek further information

  15

  7.5%

   3

  2.8%

4. To coach the witness

  12

   6%

 

 

5. To respond to the witness

  12

   6%

   9

  8.3%

6. To prompt the witness (especially after interrupting the witness)

  11

  5.5%

 

 

7. To inform the court of the need to finish an interrupted interpretation

   2

   1%

 

 

8. To acknowledge the understanding of the witness’s utterance

 

 

   5

  4.6%

9. To point out a speaker mistake

 

 

   1

  0.9%

200

100%

108

100%

Total

Some of these categories coincide with those of Berk-Seligson’s and Hale’s typologies, though mine comprise more categories, some of which, especially the first three, may partially overlap each other. The reason why they are treated as categories in their own right is that in Category 1, the interpreter simply repeats or rephrases the speaker’s utterance to check her understanding, without clarifying



Chapter 5.  Interpreter intervention in witness examination

ambiguity or seeking further information (Example (5.1)), whereas in Category 2, the interpreter takes the initiative to clarify ambiguity either arising from contextual problems (Example (5.2)), or due to linguistic or cultural differences. In Category 3, the interpreter explicitly requests further information from the speaker (Example (5.3)), which results from neither a decoding problem nor ambiguity of any kind. The following examples are drawn from my data to illustrate all these categories. 4.1 To seek confirmation Most of the IITs occurring in PW1’s examination-in-chief are checking turns used by the interpreter to check her understanding of PW1’s utterance by repeating or rephrasing what is said by the witness – also the second-most frequent type of IITs in PW1’s cross-examination – as demonstrated in Example (5.1) and (5.2). Example 5.1 Examination-in-chief of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation

English gloss

1

W

我打他的電話, 他睡覺，[他也—— I called his phone. He was sleeping, [and he—

2

I

[他睡覺？

[he was sleeping?

3

W

他睡覺，電話響他不聽。

He was sleeping, and did not answer the call.

4

I

Er電話響他不聽？ Well, I tried to call him, but um he was asleep. He did not answer the call.

Er, he did not answer the call?

Example 5.2 Examination-in-chief of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation

English gloss

1

 

PC

Go on.

2

I

然後呢？

And then?

3

W

然後我那個前夫去看那，就看到 了姓W的在家裡，他們（在）。 去叩門。

Then my ex-husband went to have a look and found Mr. W, home. They were (home). (He) went to knock on the door.

4

I

你的前夫去叩門，看到了這個W 先生？ Well, my ex-husband went up to the premises. He knocked on the door and managed er to see Mr. W.

Your ex-husband went to knock on the door, and saw Mr. W?

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80 Common law in an uncommon courtroom

On the surface, the interpreter is making use of these turns (turns 2 and 4 in Example  (5.1) and turn 4 in Example  (5.2)) to check her understanding of the speaker meaning, but it may well be the case that the interpreter uses these turns as a stalling tactic to buy her time for better reformulating her interpretation, as shown in turn 4 of both examples, where the interpreter’s CSQ is immediately followed by her rendition without waiting for PW1’s confirmation. 4.2 To seek clarification Apart from seeking confirmation from PW1, the interpreter interrupts the proceedings frequently to clarify the meaning of her utterances. Example (5.3) is one of this kind. Example 5.3 Examination-in-chief of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation

English gloss

1

W

後來W先生也在我前面在走出，走 Later Mr W walked out, walked out in front of me. 出去的。

2

I

W先生？這個租客W先生？

3

W

不是，我先生，因為我走出來嘛， No, my husband, because I came out. My, my husband saw me coming out, 我-，我先生看到我走出來，他 so he walked out in, in front of me. 在，在前邊走囉。

Mr. W? Mr. W the tenant?

Since both the defendant and the deceased have the same surname – W, the interpreter is found to clarify on a number of occasions with PW1 when she makes references to a Mr. W in the course of her interpreting, as demonstrated in Example (5.3). The clarification turn in this case obviously does not stem from a comprehension problem, but is rather more to do with the role the interpreter assumes. Admittedly, it sounds rather unusual that PW1 should be referring to her separated husband as Mr. W, which is probably why the interpreter deems it necessary to ask her whether she is referring to the tenant (i.e. the defendant). PW1 may have done that on purpose, because she has been emphasising in her evidence that the deceased was no longer her husband, but had become a casual friend of hers, and that he helped her as a friend to chase the outstanding rent from the defendant. The formal appellation is presumably chosen to downplay the intimacy or close relationship between her and the deceased. The interpreter’s attempt to disambiguate the meaning of the witness’s utterance, however, might have been censured by the counsel or the judge were they equipped with the linguistic knowledge to access this side conversation between the interpreter and the witness.



Chapter 5.  Interpreter intervention in witness examination

4.3 To seek further information In Example (5.4), the interpreter asks PW1 a follow-up question for further information before interpreting her utterance, possibly in an attempt to make a more complete and grammatically adequate rendition, though the fragmented utterances could have been interpreted as such without the requested information, as shown in the English gloss. The irony is that PW1 would probably have been able to provide the requested details had she not been interrupted and cut short by the interpreter. Here the interpreter ostensibly takes on the examining counsel’s role by controlling not only the form, but also the content of the interaction. Example 5.4 Examination-in-chief of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation

English gloss

1

PC

What happened next?

 

2

I

然後怎樣？

What happened then?

3

W

後來我就問下面有一個老頭，​ er—

Then I asked an old man down there er—

4

I

um 問他什麼？

um what (did you) ask him?

Example (5.5) is another example of the interpreter asking PW1 for further information before rendering her preceding utterance into English. Example 5.5 Examination-in-chief of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation

English gloss

1

PC

When was that?

 

2

I

什麼時候開始的？

When did that start?

3

W

E::r八月-，七月份。

E::r August-, July.

4

I

七月份？什麼年份？

July? Which year?

5

W

Er零五年七月份。

Er July year 05.

6

I

Um er July 2005.

 

4.4 To coach the witness The examination-in-chief reveals 12 instances of the interpreter coaching the witness. In most of these examples the interpreter tells the witness to speak slowly, as in Example (5.6) below. The interpreter’s coaching turns can be seen as her attempt to control the pace at which the witness testifies and thus the flow of the communication so as to facilitate her work of interpreting.

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Common law in an uncommon courtroom Example 5.6 Examination-in-chief of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation

English gloss

1

W

然後我-，W先生就說如果你要 吵呢er你哋，你哋死梗啦，我 說我不-，不會來跟你嘈，是商 量——

Then I-, Mr. W said, “if you are here to quarrel (with me), for sure you will be doomed”. I said, “I’m not, not here to quarrel with you, but to negotiate—”

2

I

慢慢、慢慢、慢慢說，W先-， [W先生怎麼說？

Slowly, slowly. Speak slowly. Mr. W, [what did Mr. W say?

4.5 To respond to the witness The interpreter is also found to repeat, rephrase or elaborate counsel’s question when the witness’s answer appears to be non-responsive, thus leaving the witness’s utterance uninterpreted, as in Example (5.7). In this case, the interpreter might have held herself responsible for PW1’s non-responsive answer, thinking that the witness must have misheard her, and thus takes the liberty to respond to her. It might as well be the case that the interpreter is worried that reproducing PW1’s non-responsiveness would be face-threatening as non-Mandarin-speaking participants in court might mistakenly conclude that there is an interpreting problem. However, by responding to PW1’s non-responsive utterance and leaving it uninterpreted, the interpreter has denied the monolingual English-/Cantonesespeaking participants access to it. Example 5.7 Examination-in-chief of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation

English gloss

1

PC

And what did he say?

 

2

I

他說什麼？

What did he say?

3

W

我就說——

I said—

4

I

他說什麼？他，W先生說什 麼？

What did HE say? What did HE, Mr W say?

At other times, the interpreter is observed to respond to PW1’s question direct without interpreting it and referring it back to the examining counsel as in Example (5.8), which again denies the non-Mandarin-speaking participants access to the witness’s questions in Mandarin.



Chapter 5.  Interpreter intervention in witness examination

Example 5.8 Cross-examination of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation

English gloss

1.

DC

Hmm. But this question of being alone at night   you see, in fact, did you not tell the police eventually in your first statement that although you’re unemployed, you helped your friend to hawk clothes from a hawker’s stall in Sham Shui Po, Mong Kok from time to time.

2.

I

那你不是曾經跟警方說過，在這第一份口供 裡面說過，就是你不時會幫助你的朋友，在 深水埗區er, er 當小販，售賣這個衣服，你不 是說過嗎？

3.

W

什麼？什麼小販？我聽不懂。什麼深水埗？ What, what hawking? I don’t understand. Sham Shui Po?

4.

I

深水埗當小販賣衣服。

Didn’t you tell the police in the-, your first statement, that you sometimes helped your friend with hawking, selling clothes in the district of Sham Shui Po. Didn’t you say that?

Hawking clothes in Sham Shui Po.

As has been mentioned above, the prescribed role of the witness in the judicial process is to answer, not to ask questions, and the legal base of power stipulates counsel’s right not only to ask questions, but also to impose sanctions against those refusing to answer. The interpreter’s response to the witness’s question without interpreting it and referring it back to the defence counsel in this case has in a way legitimated the witness’s right to ask questions and deprived the examining counsel of his right to censure the witness for not answering his question. Had the question been interpreted instead of being responded to by the interpreter, the defence counsel might have protested against it, as is evidenced in Examples (5.9) and (5.10) below, in which the interpreter does not respond to but interprets the witness’s clarifying questions for the defence counsel. Example 5.9 Cross-examination of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation 1

I

Well, are you talking about my describing my husband as my friend instead of my ex-husband?

2

DC

Please try not to answer my question with a question.

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Common law in an uncommon courtroom Example 5.10 Cross-examination of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation

English gloss

1

DC

Have you ever er (2) worked as a part-time real estate agent?

 

2

I

那你曾-，有沒有曾經在er地產公 司裡面當er做過兼職？

So have you ever, ever uh worked as a part-timer in a real estate agency?

3

W

地產公司？

Real estate agency?

4

I

Real estate agent?

 

5

DC

You had my question. Please give us an answer.

 

4.6 To prompt the witness Prompting mostly occurs after the interpreter has rendered an obviously unfinished utterance by the witness. This can be seen as a repair strategy on the part of the interpreter as in Example (5.11) below, where the interpreter starts interpreting before PW1 is able to finish her turn. After rendering her answer into English, the interpreter recapitulates it in Mandarin for the witness, as a reminder of what she has said, before prompting her to carry on with her testimony. The interpreter may have deemed it necessary to prompt PW1 to go on with her testimony or else the turn might be taken over by the examining counsel. Example 5.11 Examination-in-chief of PW1, Case 8, Murder Turn

Speaker

SL utterance / Interpretation

English gloss

1

W

我站在鐵門——

I was standing by the iron grille—

2

I

Well, I stood by the metal gate. 你站在鐵門，[然後呢？

You stood by the iron grille, [and then?

4.7 To inform the court of the need to finish an interrupted interpretation Since both the prosecution and the defence counsel in this case are monolingual English-speaking expatriates and thus have no access to the witness’s testimony in Mandarin, there are two instances of the prosecution counsel trying to take back his turn to carry on with his questioning, having taken the interpreter’s hesitation pause as an end-of-turn pause. As a result, the interpreter has to interrupt the prosecution counsel in order to finish her turn. This, however, would not usually happen with bilingual counsel, who would then be able to tell if the interpreter has completed her turn by overhearing the witness’s testimony in the source language. In this case, it could be argued that the interpreter intervenes in order to adhere to



Chapter 5.  Interpreter intervention in witness examination

the ethical code on accuracy and completeness – that is, to be accurate and complete in her rendition as required by interpreters’ code of ethics. Example (5.12) below is one of the two examples identified. Example 5.12 Examination-in-chief of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation

English gloss

 

W

我就跟他說，你要什麼條件，你 可以講，只要是合理的不要過 份。

I said to him that he could tell me if he had any conditions as long as they were reasonable ones, not too demanding.

 

I

Uh-huh. Well um what conditions do you propose? Just tell me. Um (2) …

 

 

PC

You said—

 

 

I

Er um I haven’t finished.

 

4.8 To acknowledge the understanding of the witness’s utterance Example (5.13) illustrates the interpreter signalling her understanding of PW1’s answer by means of back-channelling. This might also be taken as the interpreter’s strategy to stop PW1 from giving an answer which is too lengthy to be rendered accurately and completely. Note the overlap of the interpreter’s voice with PW1’s utterance, which is cut short by the interpreter’s back-channelling. Example 5.13 Cross-examination of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation

English gloss

1.

W

(2)但是，以::以前是這樣，後 來他零:六年我見到他，他脾氣 就比以前好多了，因為我叫他 幾次什麼的，他都勸我說哎呀 找政府囉，[我就怕麻煩，因 此我覺得他脾氣改了。

(2) But, (he) wa:: was like that before. Then he, in o::6, I met him (again), and he was much better-tempered than before, because when I asked him (to do) something several times, he urged me to seek help from the government. [I didn’t want to go through it all, though. So I found there’s a change in his temper.

2.

I

[嗯嗯嗯，嗯嗯，明白，嗯 嗯。

Mhm, mhm, got it, mhm.

4.9 To point out a speaker mistake In Example (5.14) below, the defence counsel has made an obvious mistake about the date on which PW1 made her statement with the police. As the month in

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86 Common law in an uncommon courtroom

question is August, not September, the interpreter is sure that the defence counsel has made a mistake and alerts him to it in a whisper. The interpreter’s intervention in this case is presumably to avoid the confusion which might be caused to the witness if the mistake is preserved in the rendition. This might also be regarded as the interpreter’s face-saving strategy because any confusion likely to be caused by the reproduction of counsel’s mistake might be attributed to an interpreting problem. In any case, this is evidence that the interpreter does not see herself as a copying machine (the conduit myth) but one who plays an active role in coordinating talk and facilitating communication. Example 5.14 Cross-examination of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation 1

DC

Er you’ve just been asked some questions (1) about witness statement you made (.) to the police. In the early morning, the first one in the early morning hours (.) of the 17th September.

2

I

17th August.

5. Impact of interpreter-initiated turns With the participant roles of court actors in mind and the implications for their power and control over the triadic communication, Sections 5.1 to 5.3 below will explore the impact of such IITs. In her study of interpreter interruptions with the examining counsel, Hale (2001: 8) contends that interpreter interrupting counsel will interfere with their questioning strategies or line of questioning, taking away some of their inherent power and thus control over the testimony of the witness. While Hale’s (2001) study focuses on interpreter interruptions of the examining counsel, my analysis will focus on the impact of IITs with the witness, which account for over 90% of the total number of IITs in both the examination-in-chief and cross-examination of PW1 (see Table 5.2 above). 5.1 The impact on participant roles of court actors In the examples cited above, the interpreter is seen to take on a primary participant role and assumes much autonomy in negotiating meaning with the speaker. In these IITs, the interpreter ceases to be the voice of the key interlocutors, but is speaking in her own voice, combining the roles of animator, author and principal (Goffman 1981). By initiating talk with the witness, she has also made herself a direct addressee of the witness’s response. These interpreter-witness turn exchanges



Chapter 5.  Interpreter intervention in witness examination

have effectively excluded the participation of not only the monolingual Englishspeaking counsel and judge, but also the predominantly Cantonese-speaking jury and the audience in the public gallery. The exception is the defendant, who has had whispered Cantonese interpretation provided to him by a second interpreter, and thus retains his auditor role in the participation framework. During these IITs, the monolingual judge and counsel, as Bell (1984: 176) puts it, become “uncomprehending hearer[s]” and are thus rendered “a nonmember” because of the use of a language unintelligible to them. 5.2 The impact on the power of the monolingual counsel/judge Having been excluded from these IITs, the monolingual counsel and judge have little control over the flow of the testimony. By no means are they able to access these interpreter-witness verbal exchanges, let alone intervene in the process. In the above-cited examples, the interpreter could be described to have usurped some of the power of the examining counsel, displaying considerable control over the flow of testimony. Example (5.15) best illustrates the interpreter as a power figure monopolising the communication while the monolingual judge and counsel display a total loss of control over the evidence of the witness and are forced to accept confusing and blatantly nonsensical answers arising from a series of interpreting mistakes, which have nonetheless gone unnoticed. In this example, the judge is trying to clarify how the defendant was holding the knife when the assault took place. Her attempt nonetheless leads to even more confusing answers. The problem starts with the interpreter’s failure to understand the question of the judge in turn 1, as is evidenced by her clarifying question in turn 2. The judge repeats the question in turn 3, which the interpreter again fails to grasp. While the judge asks PW1 how the tenant was holding the knife (chopper), the interpreter has misinterpreted it in turn 4 as PW1’s ex-husband, which confuses her as she is saying all along that it was the tenant who was holding the knife, not her exhusband. Her confusion, however, has led to the agitation of the interpreter, who is found to raise her voice while ordering PW1 to listen to her in an authoritative tone, displaying herself as a power figure (turn 12). During this lengthy clarifying process both the judge and the examining counsel are rendered helpless, are completely excluded from the entire process, and are clueless about the communication problem between the witness and the interpreter. This continues until the interpreter finally renders an obviously non-responsive answer to the question put (turn 16). The prosecutor must have suspected a misinterpretation by then when he intervenes in turn 17 by reiterating the judge’s question, which is again misinterpreted when “tenant” is rendered as “your ex-husband” (turn 18). With the misinterpretation of counsel’s question in turn 18, the meaning of PW1’s simple

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Common law in an uncommon courtroom Example 5.15 Examination-in-chief of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation

English gloss

1

J

Just one minute. You mean one hand on the handle and one hand on the blade.

 

2

I

Uh was one, one hand on the—?

 

3

J

The tenant had one hand on the handle and one hand on the blade, with the sharp point (laying downwards).

 

4

I

你說的是你的前夫兩隻手都是抓 著租客的手，還是你的前夫始其 中一隻手拿著刀，是哪一個？

Do you mean your ex-husband had both his hands on the defendant’s hands, or your husband had one of his hands holding the knife? Which one?

5

W

那，那個租客是拿著刀嘛。

It was the, the tenant who was holding the knife.

6

I

不是你的前夫？

Not your ex-husband?

7

W

我前夫，就因為這個刀就這麼 闊，兩隻手就抓不到，就抓在上 面囉。

My ex-husband-, because the knife was only as wide as this, (his) two hands could not get hold of (it), and could only grasp the top.

8

I

你的前夫兩隻手都是抓著[租客的 Your ex-husband’s hands were grasping [the hands of the tenant? 兩隻手？

9

W

[上面，er上面囉。

[On top, er, on top.

10

I

抓著他的兩隻手？

Grasping his hands?

11

W

他就是，他這樣，這樣抓兩隻手 囉，[抓不到那個刀——

He was, he was like this, grasping the two hands, [could not grab hold of the knife—

12

I

[你的-，你聽我說好不好？

Your-, CAN YOU PLEASE LISTEN TO ME?

13

W

嗯。

Em.

14

I

你的前夫雙手都是抓著租客的 雙手？

Your ex-husband’s hands were grabbing the tenant’s hands?

15

W

係::囉。

Yea::h.

16

I

Well, my ex-husband has both of   his hands um grasping the hands of the tenant.

17

PC

Yes, but we, Her Ladyship was asking you: “did the tenant had one of HIS hands on the handle of the (.) knife?”

 

Chapter 5.  Interpreter intervention in witness examination 89

Example 5.15 (continued)

Turn Speaker SL utterance / Interpretation

English gloss

18

I

但是你的前夫有沒有拿著er這個 刀柄？沒有？

But did your ex-husband hold the handle of the knife? No?

19

W

沒有。

No.

20

I

No.

 

answer “no” is inevitably distorted: while PW1’s answer based on the interpreter’s rendition in turn 18 suggests that her ex-husband was not holding the handle of the knife, the court will inevitably take it to mean that the tenant did not have one of his hands holding the handle of the knife, which any reasonable person would find hard to imagine. This may impact on the credibility of the witness and the prosecution case, and one may wonder if this had any bearing on the jury’s subsequent conviction of the defendant not of murder he was charged with, but of the lesser offence of manslaughter. This example best illustrates how monolingual interlocutors lose control over the witness’s evidence as the bilingual interpreter monopolises the communication. If the witness had spoken Cantonese instead of Mandarin, the interpreting mistakes would probably not have escaped notice, because even if the counsel/ judge did not speak Cantonese, the instructing solicitor or the prosecution assistant (who are usually Cantonese-speaking because of the need to communicate with the predominantly Cantonese-speaking defendants and witnesses) would be able to alert the court to the interpretation mistakes; the same goes for anyone in the public gallery, as in Case 4 cited in Chapter 2 when an audience member from the public gallery called out loud to correct the Cantonese-Shanghainese interpreter’s mistake. This shows how a witness testifying in Mandarin can give the interpreter an extra layer of linguistic power. 5.3 The impact on the evaluation of counsel, the witness and the interpreter The IITs may also have an impact on jurors’ impression of the counsel and the witness whose utterances are interrupted by the interpreter. Berk-Seligson’s (1990, 2002) experiment with mock jurors to evaluate the impact of interpreter intrusiveness shows that the attorney interrupted by the interpreter was found by the sample of listeners as a whole to be less competent and by Hispanic listeners as a subgroup to be both less competent and less intelligent (Berk-Seligson 1990: 188). On the other hand, interpreter interruptions of the witness were found to have no impact on the attorney’s competence, intelligence and persuasiveness (Berk-Seligson 1990: 191), but the witness whose testimony was interrupted by the interpreter

90 Common law in an uncommon courtroom

was found to be significantly less convincing and less competent by Hispanic mock jurors. Berk-Seligson (ibid.) notes that the results suggest that those observing interpreted proceedings make a distinction between an interpreter’s interruptions of an examining counsel and of a witness. She suggests that an interpreter’s interruptions of an examining counsel “can be perceived as a veiled criticism” of his/her performance, thus rendering him/her less competent; an interpreter’s interruptions of a witness, however, seem to be seen by mock jurors “partially as a problem of the interpreter’s and partially a defectiveness in the witness”, but as unconnected to the examining counsel’s “professional capabilities” (ibid.). In the light of Berk-Seligson’s findings, it could be argued that the IITs with the witness might render her less trustworthy and less competent in the eyes of the jurors, who might perceive her to be evasive and uncooperative. On the other hand, the interpreter herself might suffer a negative appraisal by others in the courtroom as being incompetent and unprofessional. 6. Conclusion This chapter has demonstrated how the interpreter working with monolingual court actors has an extra layer of linguistic power similar to their predecessors in the early colonial days when bilingualism was a rare skill in Hong Kong and the court interpreter was, more often than not, the only bilingual in court. This linguistic power is not shared by interpreters working with bilingual court actors, as was demonstrated in the previous chapter. This chapter illustrated how the interpreter’s intervention in the process of witness examination by initiating clarification turns of various kinds with the witness might impact on the participation status of monolingual participants in court, as well as on the power and control over the evidence adduced during this process on the part of counsel and the judge. The high frequency of IITs might also have an adverse effect on the evaluation of the interpreter’s competence as well as the credibility of the witness in the eyes of jurors. The next chapter will explore how judges’ intervention in the process of witness examination may impact on counsel’s and the interpreter’s power and control over the triadic communication, on the accuracy of interpretation, and thus on the participation status of monolingual court actors.

Chapter 6

Judges’ intervention in witness examination

The previous chapter illustrated how monolingual counsel and the judge lost their power and control over the evidence to the interpreter, who overstepped her role boundary by negotiating meaning with the witness. This chapter explores how counsel lose their power and control over the communicative act in court and how the accuracy of interpretation is compromised when judges change their participant role from a default auditor to a speaker in the examination of witnesses. It explores how judges’ intervention in the proceedings impacts on the mode and provision of interpretation and thus on the participation status of other court actors who do not speak the language of the court or have a native command of the language.1 1. Accuracy in court interpreting The importance of accuracy in court interpreting can never be emphasised enough, as understandably any interpretation problem, be it an omission or a distortion of the speaker’s meaning, in content or in form, can impact on the outcome of a trial, resulting, for example, in a conviction being quashed, as in R v. Kwok Leung (1909)2 (Koo 2009), or a trial de novo, as in HKSAR v. Ng Pak Lun (2011) cited in Chapter 2. As a matter of fact, problems in interpretation have from time to time been advanced as a ground for appeal in various common-law jurisdictions, such as in Chala Sani Abdula v. The Queen (2011) in New Zealand and R v. Trans (1994) in Canada. In the former case, the appeal based on inadequate interpretation was dismissed, while in the latter, the Supreme Court of Canada ordered a new trial of the case (cited in Chala Sani Abdula v. The Queen 2011). 1.  For a full-length paper on this topic, see E. Ng (2015). 2.  In R v. Kwok Leung (1909) 4 HKLR 161, two defendants, who spoke Hoklo (a Southern Min Chinese dialect) and were after trial convicted of manslaughter, appealed on the grounds that the evidence given by the witnesses had not been interpreted for them. Their appeal was allowed and the conviction was subsequently quashed, as the court agreed that it was important for defendants not simply to be present at their trial, but also to understand the proceedings in order to be able to decide what witnesses to call and whether or not to give evidence.

92

Common law in an uncommon courtroom

Problems arising from inaccuracy in the interpretation of courtroom evidence is often associated with interpreters’ incompetence and/or their lack of training in court interpreting. Studies in court interpreters’ alteration of the speech style in court interpreting, for example, is attributed to interpreters’ insensitivity to the pragmatic force of the source language message and the dangers of altering it (Berk-Seligson 1999: 50), or to their ignorance of the linguistics of the courtroom and the pressure from working in real time (Hale and Gibbons 1999: 207). J. Lee’s (2011) study contends that court interpreters’ failure to faithfully and accurately reproduce the speech style in court interpreting can be, among other things, a result of the cross-cultural and cross-linguistic differences between the source language and the target language. This chapter, however, examines how the overall quality of interpreting may be affected by other co-present court actors’ behaviours as it sets out to illustrate judges’ interventions in the evidential phase of court proceedings as a potential cause of omissions in court interpreting and how this may prove even more problematic in the Hong Kong courtroom than in many other courtroom settings. It discusses its implications for non-English-speaking (NES) participants’ access to the court proceedings and the delivery of justice. 2. A judge’s role in witness examination in a common-law courtroom Since Hong Kong has inherited the common-law system from Britain, cases in the Magistrates’ Courts and the District Court are heard by judges sitting alone, while criminal trials in the High Court are heard by a judge and a jury usually comprising seven (or sometimes nine) members, as explained in the preceding chapter. Judges in the adversarial common-law system do not usually play an active role in examining witnesses. Salhany (2006), who is himself a former judge of the Ontario Court of Justice in Canada, argues that a common-law judge is expected to remain silent (thus assuming an auditor role) during the proceedings as the presentation of evidence is in the hands of counsel representing the prosecution and the defence. He even likens the judge and the jury under the adversarial common-law system to “prisoners of counsel who appear before them” as they can hear only what counsel want them to hear and are expected to reach a verdict based on nothing but what has been presented to them in court (Salhany 2006: 7). The metaphor of judges in the adversarial common-law courtroom as “prisoners of counsel” may sound somewhat exaggerated, yet no doubt when compared with their counterparts in the inquisitorial civil law system, common-law judges can be argued to have a relatively passive and supervisory role in the courtroom (see also Damaska 1975; Danet and Bogoch 1980).



Chapter 6.  Judges’ intervention in witness examination

Hazard and Dondi (2006: 61), however, contend that the conception of the common-law judge as a passive moderator between presentations organised and directed by rival advocates is “grossly simplistic”. They argue that in modern commercial litigations in both the common-law and civil law systems, the judge maintains a pivotal and “a general managerial role in setting each single hearing” (2006: 62). It is true that judges have a more active role to play in commercial litigations. Even in common-law criminal trials, it would be inconceivable for judges to remain silent throughout the proceeding, where a judge as a moderator or fact-finder (in the case of a bench trial) may need to intervene from time to time to clarify ambiguity or to rule on the admissibility of certain evidence or a procedural issue (Damaska 1975: 1090; Salhany 2006: 62). The need for clarification and for the ruling on the admissibility of evidence will understandably arise from time to time during the witness testifying process, though one trial may require more intervention from the judge than another for one reason or another, and some judges are by character more intervening than others. Heffer (2005), drawing on Goffman’s (1981) participation framework and Levinson’s (1988) set of expanded participation categories, suggests that a question-answer sequence between examining counsel and the witness necessarily involves the judge and the jury as the indirect target (or auditors in my role schema presented in Chapter 3) of both counsel’s question and the witness’s answer, though not the addressee. He argues that counsel’s right to ask questions is also shared by the judge, who may interrupt at any time as s/he listens to the exchange (Heffer 2005: 47–48). In other words, the judge may change from an auditor role to a speaker role by interrupting this counsel-and-witness encounter. 3. Judges’ intervention in witness examination Since judges in the adversarial common-law courtroom do not usually play an active role in examining witnesses, that being the responsibility of counsel, as noted above, a judge’s intervention in witness examination often takes the form of interruption, either by stopping the speaker from finishing his/her utterance, or by taking away the turn of the next speaker. The former usually involves concurrent or simultaneous talk while the latter does not. Interruptions are regarded as a violation to the turn-taking system as they stop “a turn before its possible completion point” (Sacks, Schegloff, and Jefferson 1974: 724). The study of interruptions in conversational interactions has thus been linked with power and dominance (e.g. J. Lee 2012; Liao 2009, 2013; Zimmerman and West 1975) with the interrupters assuming more power and dominance over those who are interrupted. The study

93

94 Common law in an uncommon courtroom

of interruptions in conversational interactions by Zimmerman and West (1975) reports asymmetries between men and women, with men interrupting more than women. The studies by J. Lee (2012) and Liao (2009, 2013) deal with interruptions in courts in particular. J. Lee’s (2012) study is situated in the Korean courtroom and focuses on how judges’ institutional role as a fact-finder and presider in court is reflected in the act of interruption. J. Lee (2012) argues that judges interrupt in order to exercise their power and control over the proceedings. Likewise, Liao’s (2009, 2013) studies associate judges’ interruptions of defendants with the notion of power and dominance in the courtroom. Liao (2009: 175) argues that interruption in institutional contexts like the courtroom is “strongly goal-oriented”. Using the Gricean maxims of conversation (Grice, 1975) as the analytical framework, Liao’s studies (2009, 2013) reveal that both prosecutors and judges interrupt defendants most frequently in an attempt to control what the defendants say “by stretching the Gricean maxims in their normative sense to the extreme” (Liao 2009: 180). This was done by disallowing the defendant to say no more than is necessary (maxim of quantity) or anything which they believed to be irrelevant (maxim of relation), untrue (maxim of quality) or unclear (maxim of manner). Both J. Lee’s (2012) and Liao’s (2009, 2013) studies of interruptions are, however, situated in a monolingual courtroom where all the participants speak the language of the court and thus the intervening process is transparent and accessible to all the participants in court. In an interpreter-mediated trial, judges’ interruptions mean more than just an attempt to display power or manoeuvre control over the conduct of the trial. When the examination of a witness is mediated by an interpreter, the examining counsel, the interpreter and the witness then take turns to speak. An interruption by the judge may also take away the interpreter’s turn to interpret for NES participants, thus depriving them of their right to hear. As was explained in Chapter 3, the use of consecutive interpreting (CI) is the norm in interpreter-mediated witness examination in Hong Kong because of the need to provide interpreting for the linguistic majority. This chapter examines how a judge’s intervention in the process of witness examination may result in omissions in interpretation or in a change in the mode of interpretation, thus compromising the participation status of NES court actors in the court proceedings. 4. Data and methodology In order to identify the occurrences of judges’ interruptions in the evidential phase of a trial, I have taken the examination-in-chief of one prosecution witness (PW) from each trial in my data as my sample and performed a quantitative study by counting the judge’s turns in the nine transcripts produced from the recordings.



Chapter 6.  Judges’ intervention in witness examination

A frequency table showing judges’ turns and total turns for each sample transcript was produced (see Table  6.1). This is followed by a qualitative study to analyse these turns in terms of the functions they serve and the impact these turns have on the interactional dynamics and on the participation status of individual court actors in the court proceedings. 5. Findings and analysis Table 6.1 shows the judge’s turns, as opposed to the total turns, in the witness’s examination-in-chief in each trial under study. Column 2 of the table shows the trial and the witness involved, while the levels of courts in which the cases were tried are indicated in column 3. The nine trials were heard by nine different judges at the three levels of criminal courts. The results show that none of the judges in any of the nine trials remain silent throughout the witness examining process, although some judges appear to be more intervening than the others. As noted above, judicial intervention may have to do with individual judges’ styles of conducting trials. This is confirmed by the results which shows that the judges’ turns range from 1.8% to 9.4% of the total turns, with the judge in the rape case (Case 9) assuming the least active role in the witness examination and the judge in the drug trafficking case (Case 5) being the most intervening, as will be demonstrated by my data. Table 6.1  Quantitative results of judges’ turns in examination-in-chief of prosecution witnesses (PWs) in nine trials Case no.

Charge

Court

Judge’s turns/total turns

1

Theft (PW1)

Magistrates’ Courts

  28/390 (7.2%)

2

Making a false declaration to an immigration officer (PW1)

Magistrates’ Courts

   6/260 (2.3%)

3

Attempting to distribute an infringing copy of Magistrates’ a copyright work (PW1) Courts

  36/524 (6.9%)

4

Blackmail (PW2)

District Court

  16/564 (2.8%)

5

Trafficking in dangerous drugs (PW1)

District Court

  63/670 (9.4%)

6

Arson with intent (PW2)

District Court

   3/110 (2.7%)

7

Wounding with intent (PW1)

District Court

  17/390 (4.4%)

8

Murder (PW1)

High Court

51/1506 (3.4%)

9

Rape (PW1)

High Court

29/1647 (1.8%)

95

96 Common law in an uncommon courtroom

A qualitative study of the transcripts reveals that the judges’ turns primarily serve three functions: (1) to carry out administrative and procedural duties such as administering the exhibit tendering procedure and passing rulings on objections, (2) to clarify with witnesses, and (3) to clarify with counsel or comment on counsel’s questions or modus operandi in conducting the examination of witnesses. Since judges’ turns to carry out administrative and procedural duties are not considered intervening turns, examples of such turns will not be cited and analysis will focus on judges’ turns to perform the last two functions. In the following sections, examples will be extracted from the transcripts (including but not limited to the nine in the sample) to illustrate judges’ interventions in the examination of witnesses, all testifying through an interpreter. The impact of such interventions will be discussed in more detail in Section 6 of this chapter. 5.1 Judges’ intervention to clarify with witnesses During the process of witness examination, as was pointed out in Sections 2 and 3 above, a judge may from time to time intervene to clarify with a witness, usually through interrupting the proceedings, as illustrated in Example (6.1) below, where the judge interrupts the prosecution counsel (PC) to clarify with the witness. Example 6.1 Examination-in-chief of PW1 by PC, Case 1, Theft Turn Speaker SL utterance / Interpretation

English gloss

1.

PC

So, em now after she discard the wrappings—

2.

J

Well, hold on, hold on. After she took that, what did she do?

 

3.

I

佢攞咗哩一(.)哩一個子母袋之後，佢點 呀？

So after she had taken this, this two-in-one bag, what did she do then?

As a result of the interruption, in turn 2, PC is not able to finish her question and the interpreter is unable to render the question into Cantonese for the witness. At other times a judge can be found to interrupt the interpreter, as in Example (6.2).



Chapter 6.  Judges’ intervention in witness examination

Example 6.2 Examination-in-chief of PW1 by PC, Case 5, Trafficking in dangerous drugs Turn Speaker SL utterance / Interpretation

English gloss

1.

PC

Yes. When you conducted the house search,   was there anybody else in the premises?

2.

I

當時當你哋搜屋或者搜查個單位[嘅時 候——

When you were conducting the house or premises search, [during that time—

3.

J

[No. After the officers, the other officers arrived, did all of you go up to (2) the premises where she lived?

 

4.

I

拿咁喺其他人員都到埋之後啦咁你哋係 咪全部一齊啦，就上到去到佢所住嘅er 嗰個單位個度呀?

After the other officers had arrived, did you all go up to the uh premises where she lived?

In this example, taken from Case 5, the judge, obviously not happy with PC’s question, interrupts the interpreter to put her own question to the witness. As a result, the interpreter is forced to stop half way through her rendition and to leave it unfinished. As can been seen in the above two examples, a judge’s interruption of counsel’s question or of the interpreter’s rendition to clarify with the witness inevitably results in some omissions in interpreting, thus compromising the participation status of other NES participants including the defendants and the audience in the public gallery, who temporarily lost their auditor and overhearer roles. The omissions are, however, limited to counsel’s interrupted question or the interpreter’s unfinished rendition of counsel’s question. The judge’s clarifying question for the witness, as a usual practice, is interpreted consecutively in open court primarily for the witness, but the defendant in the dock and other NES participants in court will also benefit from it. A judge’s intervention to clarify with counsel will prove even more problematic and result in further omissions in interpreting, as will be illustrated in Section 5.2 below. 5.2 Judges’ intervention to clarify with counsel or to inject a comment As was noted above, a judge’s intervention to clarify with counsel will lead to even more omissions in interpreting. This will be illustrated in the following examples.

97

98 Common law in an uncommon courtroom Example 6.3 Examination-in-chief of PW1 by PC, Case 9, Rape Turn Speaker SL utterance / Interpretation

English gloss

1.

PC

Now, if I were to ask you to READ out the contents, do you think you’ll be able to do that?

 

2.

I

嗱，[如果我嗌你呢係——

Now, [if I ask you to—

3.

J

[What, what, what’s the point, what’s the point to that?

4.

PC

Sorry.

5.

J

What’s the point to that other than to cause distress? The jury got copies.

6.

PC

Alright, then.

In Example (6.3) taken from the rape case, the interpreter has her Cantonese rendition of counsel’s question cut short when the judge interrupts her to query PC’s request for the witness to read out in court a love letter she had written. The rendition of PC’s question is thus left half-finished. Besides, since the judge’s comment is addressed to counsel, not the witness, counsel and the judge can freely interact with each other without the mediation of the interpreter, and their utterances are not (and need not be) interpreted consecutively in open court. Usually chuchotage is provided for the defendant for interactions between the legal professionals. In this example, however, since the judge/counsel interaction takes place while the witness is testifying in the witness box through the interpreter, it would be difficult, in practice, for the interpreter to leave the witness alone and to go to the defendant in the dock to perform chuchotage because of the physical distance between the dock and the witness box (see Figure  6.1 for a simplified courtroom layout in the High Court of Hong Kong), especially when the intervention is a brief one. Even if the interpreter manages to provide chuchotage for the defendant in the dock, the Cantonese-speaking witness in the witness box will be left wondering what is going on. The ability of other NES and NNES audience members in the courtroom to understand the interaction in English without the assistance of the court interpreter cannot be taken for granted, including in this case probably jury members.

Chapter 6.  Judges’ intervention in witness examination 99



Judge

Interpreter

Witness

Court clerk

Public gallery

Jury

Defence

Prosecution

Instructing solicitor/ prosecution assistant Public gallery

Defendant

Figure 6.1  Courtroom layout in the High Court of Hong Kong3

In Example  (6.4), the judge’s intervention at turn  7 has also rendered the male interpreter unable to finish his interpretation of the defence counsel’s (DC) question. Moreover, as in the previous example, since the judge’s comment is targeted at DC, not the witness, it is not interpreted consecutively in open court as the previous turns were. The omission in interpretation of this judge/counsel interaction means that all the NES court actors, including the testifying witness and the defendant, find their access to the proceedings temporarily lost. 3.  The Magistrates’ Courts and the District Court have a similar courtroom layout, except that there is no jury box.

100 Common law in an uncommon courtroom Example 6.4 Cross-examination of PW1 by DC, Case 3, Attempting to distribute an infringing copy of a copyright work Turn Speaker SL utterance / Interpretation

English gloss

1

DC

Where, where exactly was it that em (.) at 2:50 p. m., you gave a copy of the notebook-, (.) [photo-, photocopy of your notebook to the defendant

 

2

I

[兩點十嗰陣呀，你係，你係喺邊個地方將嗰啲影 印本俾被告㗎呢？

[At 2:50, where did you give the photocopy to the defendant?

3

PW

喺我地嘅寫字樓834F室。

In room 834F at our General Office.

4

I

834F room (.) at our office.

 

5

DC

(11) Now, (1) what was the em (.) purpose of taking the   er (.) record of interview from the defendant?

6

I

你當時幫 [被告落嗰個——

When you took from [the defendant─

7

J

[Well, the purpose of interviewing him. Can we get the expression correct, because in fact, (.) I think it is the use of the expression ‘taking a record of interview’ sometimes can be s-, misleading. You interview somebody, how the record is kept is a different matter=

 

8

DC

=Oh, I, I accept, your Worship. (.) What, (.) what was the purpose of er (.) interviewing (.) the em (.) defendant?

 

9

I

你當時同被告(.)坐低，做er嗰個:會面呀，其實個目 You sat down together with the defendant 的主要係咩㗎？ and uh interviewed him. What’s the purpose of doing this?

In the above examples, the judges’ interventions do not meet with resistance from counsel and therefore the intervening processes are relatively brief. There are, however, instances (mostly found in Case 5) of counsel resisting the intervention and apparently fighting back, often resulting in extensive turn exchanges and an ensuing power struggle between counsel and the judge. This finding is not limited to the examination of PW1 but is true also of the examination of the other witnesses including the defendant. Examples (6.5) and (6.6) are two of many of this kind.

Chapter 6.  Judges’ intervention in witness examination 101



Example 6.5 Examination-in-chief of D by DC, Case 5, Trafficking in dangerous drugs Turn

Speaker

SL utterance / Interpretation

English gloss

1

DC

Now roughly about 11pm, where were you, can you recall?

2

I

嗱你仲記唔記得啦約莫喺夜晚黑 Do you remember where you were at around 11pm? 11點鐘嘅時候當時你喺邊呢？

3

J

Why don’t you take her to the time of arrest? [We are just doing this special issue, are we not?

4

DC

[Oh in that case, yes I uh mm. Your Honour, I, I, I hate to be (1) saying this. I don’t want to be push , Your Honour, with the greatest respect. I have been push by Your Honour.

Now your barrister doesn’t want to say this, BUT, doesn’t wish (the judge) to push him. That is your barrister.

5

J

Mr. (.) C, you haven’t been pushing-, you haven’t been pushed into a corner. This is how this procedure takes place. We are now on the special issue.

Now no pushing on your barrister (xxx). It is said that it is a (xxx) procedure. We are now dealing with the statement, that is the video recorded interview.

6

DC

And this special issue, if Your Honour appreciate , started from the time when she was intercepted.

7

J

Yes, exactly.

Hope the judge will understand that the incident happened when you were intercepted. That’s why questions were asked about (what happened) at around 11 o’clock.

8

DC

Then that is why after-, from 11 o’clock what happened.

9

J

Well, can’t you lead her?

10

DC

Well, in that case—

11

J

You asked where she was. We all know that she was on Patterson Street near where she lived, right?

12

DC

It was near Hamilton Street and Portland Street.

13

J

Well, I am so sorry. Portland Street

14

DC

Well, in that case, I try to be brief and simple and just discharge my duty as brief as possible, Your Honour, in that case.

But in that case, why not— You were at that time near your home. Hope your barrister can lead you to that, and hope in this case your barrister can deal with (the matter) as briefly as possible.

(continued)

102 Common law in an uncommon courtroom Example 6.5 (continued) Turn

Speaker

SL utterance / Interpretation

English gloss

15

J

16

DC

17

J

Now the judge is assisting the defence I don’t think you are assisting me, counsel, but the defence counsel does not think the judge is helping him beYour Honour, with the greatest respect. I know what I am doing (3) cause he knows what he is doing, unless the defence counsel has done something unless I suddenly go wrong and I apologise, Your Honour, but I just wrong and has to apologise. That is-, the concern is not to waste too try to do my job… much of the court’s time. You are—

18

DC

…without wasting too much of the court’s time. That’s my concern.

19

J

All I am doing is assisting you so she doesn’t talk about what happened before the arrest which is not (.) the issue before me now.

20

DC

21

J

LOOK, Mr. C—

22

DC

Of course, I get to the point.

23

J

Mr. C, I think you are getting the wrong end of the stick. I suggest we take a morning break for you to [cool down.

24

DC

[Well, okay.

25

I

上午休庭。

I am just assisting you because—

The judge’s concern is that the defence counsel does not talk about things before the arrest, because it’s not relevant to what we are dealing with now. Of course your defence counsel knows I know. I won’t ask her what has she done, eating, dining, walking— that—

Morning break

In Example  (6.5), DC, having been repeatedly interrupted and criticised by the judge in his cross-examinations of the witnesses, whether for his poor English (which is apparently not his native language), or for the way he conducts the trial, resents and resists the judge’s intervention. This subsequently leads to a short adjournment of the trial for DC to “cool down”, as the judge puts it. In this case, since it is the defendant who is testifying in the witness box, by the interpreter’s side, the interpreter is able to provide chuchotage for the defendant from turn 4, when she must have sensed the start of a lengthy debate between DC and the judge. Obviously, because of the interruption, the interpreter has had to change the mode of interpreting from consecutive to chuchotage. However, the overlap and rapidity of the speech typical of a debate, the proximity of the



Chapter 6.  Judges’ intervention in witness examination 103

interpreter to the SL speakers, and the unavailability of simultaneous interpreting (SI) equipment rule out an accurate rendition. As a result, the interpreter has only been able to provide a summary chuchotage for the defendant, as is illustrated in column 4 of the table.4 Note also the interpreter’s use of reported speech instead of the normative direct speech, which, as observed by Angermeyer (2009), can be seen as an effort on the part of the interpreter working in chuchotage to avoid possible confusion for the defendant by specifying who the speaker is. The use of reported speech in court interpreting will be discussed in detail in Chapter 9. It is worth noting too that at turn 25, the interpreter moves from chuchotage to a louder than normal voice to announce the court’s decision about the morning break, taking into account the needs of not only the defendant, but also of other NES audience members in the public gallery. In Example (6.6), the judge’s intervention at turn 2 has taken away the interpreter’s turn, resulting in the omission in interpretation of PC’s question and of the subsequent interaction between counsel and the judge. It is not until DC steps in at turn 10 that the interpreter starts to provide interpretation in a whisper, and since this intervention takes place while the witness, not the defendant, is giving evidence, the chuchotage provided at turn 10 is for the witness, not for the defendant, who again has temporarily lost her right to hear during this intervening process.

4.  Chuchotage provided to the witness/defendant in the witness box, where there are built-in microphones (for recording, but not for amplifying purposes) for both the interpreter and the witness, is clearly picked up by the recording system, but not chuchotage provided by the side of the dock, where no recording device has been installed.

104 Common law in an uncommon courtroom Example 6.6 Examination-in-chief of PW1 by PC, Case 5, Trafficking in dangerous drugs Turn Speaker SL utterance / Interpretation

English gloss

1

PC

During the uh time, (3) during the time that (2) this video (1) interview was being conducted, Officer, did you have any contact from outside the room?

2

J

Well, that’s not the allegation, is it? This is-, it’s videoed. It’s before. There’s an allegation that (1) they taught her what to say.

3

PC

Yes, Your Honour, but um, I don’t need to lead that. All, all, all I-, what I wish to establish is that during the interview, there was contact from outside, if I may just put my question. (2) Were you given any instructions, whilst this interview was being conducted, Officer, whilst you were inside the room?

4

I

拿咁當時當進行緊呢個嘅er會面嘅時候呢，當 你係間房裡面嘅時候啦，當時係咪有俾過指示 你㗎？

Now when you were conducting the, uh interview, when you were inside the room, were you given any instruction then?

5

J

There’s no such allegation.

6

PC

I’m not, it’s nothing to do with allegation, Your Honour. I’m just asking this question [if I may.

7

J

[Why?

8

PC

Because this is what happened during the, the proceedings, Your Honour.

9

J

(4) Was there an interruption?

10

DC

I think that towards the end of the interview, someone (1) placed a piece of the paper underneath the door and put it into the interview room. [Either this officer or the other officer (xxx), for the purpose of their enquiry.

during the video recorded interview with you, someone slipped in a piece of paper from the gap underneath the door.

11

J

I see. Sorry. Yes?



Example  (6.7) is another instance of the judge’s intervention in the same case, resulting in an even lengthier debate – a war of words – which grows intense and eventually leads to a standoff between the judge and PC.

Chapter 6.  Judges’ intervention in witness examination 105



Example 6.7 Cross-examination of defendant, Case 5, Trafficking in dangerous drugs Turn Speaker SL utterance / Interpretation

English gloss

1

PC

But er but you said that they found the drugs not in your room, they found it on your male friend.

2

J

No, you misunderstand the situation. What she is say- The judge is correcting is that it was the police plant. Neither she nor her ing the prosecutor’s male friend had drugs. understanding.

3

PC

Well—

4

J

It was the police plant.

5

PC

But—

6

J

And it was the sergeant who said, “this was found on the male person”.

7

PC

Yeah. Yes. Your Honour, I appreciate the inference the-, that this witness is trying to (.) eh (.) put, of course. But I am trying to cross examine her, on her-, what she said during her testimony. And her testimony was: and he told me, he told me those things were found after search of my male friend.

8

J

Right.

9

PC

Right, so I am just putting the question to her. Now about what they-, the police are saying, that they found this on her male friend inside the bedroom.

10

J

Yeah?

11

PC

She couldn’t see what-, whether they found it on her, on her male friend or not. That’s what the police told her.

12

J

Yes?

13

PC

Right. So I am asking her about this. If they found this on her male friend—

14

J

Well, they didn’t. That’s what the police said.

15

PC

Well, how do you know? Eh (.) eh. [How, how would—

16

J

[Because, BECAUSE her male friend was (.), she is saying they were both searched on the street, nothing was found. [She knew there was nothing in her home.

17

PC

[With resp-, right, with respect, Your Honour. There are, there are tons of body searches that you do on the street, which are called pat-down searches. They are not intrusive searches because you can’t take—

18

J

Why don’t you ask her to clarify then before you do (this)?

(continued)

106 Common law in an uncommon courtroom Example 6.7 (continued) Turn Speaker SL utterance / Interpretation

English gloss

19

PC

Then, well, I’m-, madam-, oh, sorry, Your Honour, I am trying to do my cross-examination, and I am trying to put it to the witness. If I am confusing the witness, or if I am asking a question that is inadmissible, I apologise. But can I just ask my questions (.) in my way? And if it is inadmissible, I’ll withdraw the question. And if I’m putting something to her that shouldn’t be put to her, then I’ll withdraw it. But from what I understood from her testimony earlier, Your Honour, was the fact that she said, after they came out of the room, the police said they found these drugs on her male friend. Now I am pursuing on that basis of what she was told. Now if I am not allowed to proceed on this basis, Your Honour, then, then I’ll move on to another matter. But may I just put this to the witness as I was? And if it is a matter that I’m not permitted to put to the witness, then I’ll withdraw it. But it’s [entirely up to you, Your Honour.

still talking about the same thing.

20

J

[What, what was your question?=

 

21

PC

=I have no idea now, Your Honour. This is what happens, Your Honour, when it-, counsel are interrupted in the middle of cross-examination, they lose their train of thought. Now if it was an inadmissible question, it is perfectly permissible (.) for Your Honour to interrupt and say this is inadmissible or this is wrong. But it wasn’t wrong for her testimony. And now I have lost my way. And I have to gather [my thought—

still not clear about what the question is. < chuchotage for D in the witness box>

22

J to I

[Can you just repeat the question   for the (.) counsel?]

23

I

No (xxx).

 

24

PC

I don’t want to appear to be difficult, Your Honour, but it is how she had put the matter.

 

25

J

OF COURSE, IT WAS.

 

26

PC

Exactly.

27

J

Except I couldn’t see where it was going and I don’t see that it could be understood. Part of the reason I do (1) stop counsel is because unless the question is understood by me and my interpreter, that correct interpretation of the question is not put, and then we get a wrong answer .

the judge is explaining why she had to interrupt. That is unless the question is understood— < chuchotage for D in the witness box>

Chapter 6.  Judges’ intervention in witness examination 107

Example 6.7 (continued)

Turn Speaker SL utterance / Interpretation

English gloss

28

PC

Well, I do apologise that my question was put in a way that you didn’t understand it, Your Honour. Perhaps I can have the question read back to me. I’ll, I’ll rephrase it so Your Honour can understand it.

29

J

Did you get the question, Miss Interpreter?

30

I

I think I have lost it.

31

J

Yeah.

32

PC

As, as I said, Your Honour, this is what happens . Right, Madam, you, according to your testimony earlier, you said the police officers-, the police officer-, the sergeant came out, of the room and he had some drugs, and he told you that they had been found on your male friend. Is that right ?

33

J

That’s exactly the question you asked.

34

PC

Yes, that’s what I’m going to ask.

35

J

Yes.

36

PC

Yes.

37

J

And you didn’t lose your way.

38

PC

Well, I just managed to re-, find it then.

39

J

Wonderful.

40

PC

Was there something about the question you didn’t understand? Should I rephrase it, Your Honour?

still discussing the question

41

I

(6)嗱咁呢就根據你頭先係法庭上面所比嘅證供 嚟講啦，咁呢就係阿警長呢就係由嗰個房間出嚟 啦，咁跟住呢就係er攞住啲毒品啦就話係你個男 性朋友身上面所搵到嘅，係咪咁先？

(6) so according to your earlier evidence in court, the sergeant came out from the room with the drugs and said that they had been found on your male friend. Is that right?

Note that this judicial intervention has produced as many as 40 turns before PC’s question is finally interpreted in turn 41. As has been noted above, since the defendant is testifying in the witness box when this judge-counsel encounter starts, it is in theory possible for the interpreter to interpret the conversation to the defendant in a whisper. The reality is that the majority of the turn exchanges in the above dialogue have been left uninterpreted as indicated in column 4. Again as in Example  (6.5), the overlapping and rapidity of the utterances, the proximity

108 Common law in an uncommon courtroom

of the interpreter to the speakers and the unavailability of SI equipment may all have contributed to the non-rendition of the encounter. The interpreter is asked twice (turns 22 and 29) by the judge whether she is able to repeat the question for counsel after he claims to have lost his train of thought. With the distraction of the crossfire between counsel and the judge, it is simply natural for the interpreter to have lost the question. After PC has finally gathered his thoughts and has put the question to the defendant again in turn 32, it seems that the judge is ready to start another war of words when she tries to mock him for claiming to have lost his train of thought because of her interruption. PC fights back by asking the judge which part of his question she does not understand, referring to her earlier utterance in turn 29. There is a dead silence of 6 seconds before the interpreter produces her rendition in turn 41. During this long silence, the interpreter must have been waiting for the judge to respond to counsel’s rebuke, which, however, does not happen. 6. Impact on quality of interpreting and implications for NES participants’ access to the trial Interruptions in conversational and courtroom interactions have in the main been associated with the notion of power and dominance (J. Lee 2012; Liao 2009, 2013; Zimmerman and West 1975). The focus of this study is rather on how judges’ interruptions in witness examination may affect the quality of interpreting in the courtroom, which may consequently disadvantage NES court actors, reduce access to the proceedings and potentially compromise the delivery of justice in the bilingual Hong Kong courtroom. In a monolingual courtroom, any intervention by the judge and the ensuing power struggle, as was noted earlier, would be transparent to all present in the courtroom. In other words, if the above-cited instances of interventions had taken place in a monolingual courtroom, all those present in court would have had access to the talk in its entirety. In an interpreter-mediated trial, however, as shown in the above examples, a judge’s intervention in the proceedings often leads to omissions in interpreting or necessitates a change in the mode of interpreting from CI to chuchotage as judges and counsel can freely interact with each other without the mediation of the interpreter in open court. In a common or typical bilingual setting, where interpreting is provided for the linguistic minority, the impact of such intervention would be less of a problem than in the bilingual Hong Kong courtroom. In an English-medium trial in the Hong Kong courtroom, as noted in Chapter  3, more often than not, the majority, if not all, of the lay participants



Chapter 6.  Judges’ intervention in witness examination 109

have to rely on the Cantonese interpretation of the court personnel’s utterances in English for their participation in or access to the trial. The provision of CI in open court in the evidential phase of a trial ensures the participation of these lay NES court actors in the process in their respective audience roles. It is found that a judge’s question/comment addressed to a witness is less problematic than one targeted at counsel because a judge’s question addressed to a witness has to be interpreted in the consecutive mode in open court (though counsel’s interrupted question is usually not interpreted). Where a judge’s utterance is targeted at counsel, interpretation, if any, is only provided in chuchotage, which is exclusive to either the witness or the defendant for whom the interpretation is provided, but not to other NES audience members such as those in the public gallery, where one can expect to find the defendant’s (and probably also the victim’s) family and friends. In the case of a jury trial, the participation status of some jury members as auditors of these interactions may also be compromised. Uncontested intervention is found to be less of a problem than when the intervention is contested by counsel, as the latter inevitably results in a lengthy verbal exchange between counsel and the judge, and thus produces more omissions in the interpreter’s rendition. Moreover, a judge’s intervention in the examination of a witness is proved to be more problematic than with the examination of a defendant, as the interpreter cannot provide chuchotage for both the defendant and the witness simultaneously. Obviously, the omissions in interpreting or the change from the open court consecutive mode to chuchotage inevitably compromises the participation status of the NES linguistic majority and denies their access to the trial in its entirety. More worryingly, this may also compromise the participation status of the nowadays predominantly Cantonese-speaking jurors, whose comprehension of the English utterances cannot be taken for granted (see Duff, Findlay, Howarth, and Chan 1992; E. Ng 2016a) despite the legal requirement for them to have “a sufficient knowledge of the language in which the proceedings are to be conducted to be able to understand the proceedings” (Jury Ordinance, § 4 (1c), 1999). This problem of jury comprehension in the Hong Kong courts will be discussed in Chapter 8. 7. Conclusion This chapter has problematised judges’ intervention in witness examination as a cause of omissions in court interpreting. It has demonstrated that judges’ intervention in witness examination in the bilingual Hong Kong courtroom is more problematic than in many other courtroom settings. The omissions in interpretation or

110 Common law in an uncommon courtroom

the change in the mode of interpretation, both resulting from judges’ intervention in witness examination, arguably disadvantage NES court actors, including the defendant, whose constitutional right to an interpreter means that s/he has the right not just to be heard, but to hear everything said in court. The omissions or the change in the mode of interpreting as a result of the intervention may also compromise the participation status of jurors, who may have a problem accessing the trial talk without the mediation of the interpreter. The next chapter will examine the phenomenon of Chinese witnesses testifying in English, of which they do not have a native command. It will discuss the problems arising from this as well as their impact on the participation status of NES participants in court and potentially on the delivery of justice.

Chapter 7

Chinese witnesses testifying in English

The previous chapter illustrated how judges’ intervention in witness examinations can be a cause of omissions in court interpreting. It demonstrated how the participation status of non-English-speaking (NES) linguistic majority in the court proceedings in the Hong Kong courtroom could be compromised because of the judge’s intervention. This was a result of a shift in the mode of interpreting from the consecutive to the more restrictive chuchotage mode or, worse still, of an entire omission of interpretation as the judge changed from an auditor role to a speaker role in witness examination. This chapter examines how non-native English-speaking (NNES) witnesses, by waiving their right to an interpreter, can be disadvantaged due to their linguistic incompetence. It explores how NNES witnesses are further disadvantaged in the antagonistic process of cross-examination, as counsel frequently flout the maxims of the Cooperative Principle (Grice 1975), by asking, for example, ambiguously worded and/or syntactically complex questions (non-observance of the maxim of manner). It also discusses how this might compromise the participation status of other NNES court participants including the jury in the judicial process, and potentially impact the delivery of justice.  1. Mind the gap: Inequality before the law The rule of law presupposes that all people are equal before the law. This presupposition of equality for all is, however, ill-grounded. First of all, lay participants have little knowledge of the law and of the legal process and courtroom protocols, which necessarily places these non-legal experts on an unequal footing with lawyers in the legal process. That is why self-represented litigants are inevitably disadvantaged before the law. This inequality gap can also be explained by the convoluted nature of the language in which laws are coded and cases are argued in court. As we know, legal language differs in many ways from everyday language, making the law and the legal process to a large extent impenetrable to lay people, an aspect which will be further elaborated in the next chapter.

112 Common law in an uncommon courtroom

Another important factor that contributes to the inequality gap is the imbalance of power between legal professionals and lay litigants in court. As was noted in Chapter 4, a trial in the adversarial common-law courtroom is notably marked by power asymmetries with counsel as questioners enjoying institutionalised power and control over lay participants as answerers. It is, for example, not uncommon for counsel to instruct a witness to “just answer the question” or to restrict a witness’s answer to “yes” or “no” by asking a polar (yes-no) question, thus disallowing witnesses permission to present free narratives or to elaborate on an answer. This power asymmetry between counsel as questioners and witnesses (and the defendant if s/he elects to testify in the witness box) necessarily places lay participants at a disadvantage as compared with their legal counterparts. The strategic use of language in court also contributes to the disadvantage experienced by lay participants in the legal process. As was noted and illustrated in Chapter 4, the adversarial common-law courtroom relies heavily on the oral presentation of evidence as the main vehicle. Counsel, as questioners in the judicial process, enjoy institutionalised power over witnesses as answerers. One of these sources of power, as defined by Walker (1987), is the linguistic base of power arising from their ability to manipulate the question forms in order to control the answers to the questions asked. Studies by Danet and Bogoch (1980), Woodbury (1984) and Walker (1987), for example, reveal a consistent use of coercive questions by lawyers in cross-examination to control their answers from witnesses, including the use of declarative and tag questions. This strategic use of language in court by lawyers renders lay participants at an even greater disadvantage. The strategic use of language is closely linked with the objectives of witness examination. In examination-in-chief, where witnesses are examined by counsel calling them, the goal of examination-in-chief is thus to get the witness to tell the story the examining counsel wants him or her to tell. Examination-in-chief is thus conducted in a friendly and supportive manner. By contrast, cross-examination is conducted in a hostile or an antagonistic way, with counsel for the opposition party examining a witness called by the other party. The aim of cross-examination is not to adduce evidence from witnesses, but to discredit witnesses’ testimony in-chief in order to weaken the case of the other side (Salhany 2006: 48), or, as noted by Conley and O’Barr (1998: 22), to “discredit opposition witnesses and minimize the impact of their testimony”. Crossexamination, therefore, can be confrontational, and effective communication is not always the main concern of counsel in cross-examination. Rather, counsel may take advantage of witnesses’ comprehension problems of a strategically framed question, making it easier for them to manipulate the witnesses and their answers.



Chapter 7.  Chinese witnesses testifying in English 113

2. Second language or dialect speakers in court Due to such factors as the nature of legal language, the power imbalance, and the strategic use of language, “many people who are usually fluent and articulate speakers feel that they are at a disadvantage in the legal process” (Eades 2008: 186; see also Gibbons 2002: 201). This necessarily means that those who are not fluent or articulate speakers, such as second language or dialect speakers, will be further disadvantaged. Gibbons (2002: 201) contends that examination is a linguistic process, which requires both confidence and language competence on the part of the witness to express themselves. The disadvantage and communication problems experienced by people with limited English proficiency (LEP) or as second-language speakers and the potential resulting injustice have received much scholarly attention in the past decades (see Berk-Seligson 2009; Brown-Blake and Chambers 2007; Cooke 1995, 1996; Eades 1995, 2000, 2008; Gibbons 2002). When a trial involves participants without a native command of the language of the court, the provision of interpreting services becomes central to the issue. As noted by Nakane (2015), minority language speakers’ participation in the legal process is often examined in connection with the question of whether language assistance is available to these linguistically disadvantaged people to compensate for this disadvantage. Berk-Seligson’s (2009) study, for example, examines police interrogation of native Spanish speakers with varying degrees of proficiency in English by police officers with different levels of proficiency in Spanish, without the mediation of professional interpreters. She argues that “not to provide communicative assistance to persons who are linguistically at a disadvantage is to put oneself in a position of dominance, power and control over them” (Berk-Seligson 2009: 2). In a similar fashion, Brown-Blake and Chambers (2007) examined UK police and customs officers’ interviews of Jamaican Creole (JC)-dominant or JCmonolingual suspects and revealed serious miscommunication problems between the parties and transcription errors in the transcripts of the recorded interviews. Some of these interviews were conducted in the absence of an interpreter, while others had a standby interpreter, who intervened only when there was a communication problem. JC is the native language of the majority of Jamaicans, and English is acquired largely through education (Brown-Blake and Chambers 2007: 270), while only a minority of JC speakers, usually the well-educated middle class, are proficient in English (Brown-Blake and Chambers 2007: 289), similar to the case in Hong Kong. However, because of the lexical similarity between JC and English, JC is regarded as a form or a dialect of English (ibid.). That is probably why interpretation services are not considered a must for the communication between JC monolinguals or JC-dominant speakers and English-speaking functionaries in the UK criminal system. In the light of the miscommunication problems identified in

114 Common law in an uncommon courtroom

their study, Brown-Blake and Chambers argue that interpretation services should be provided throughout the entire interview, rather than when a communication problem arises. Likewise, studies by Eades (1995, 2000) reveal significant differences between Aboriginal and non-Aboriginal ways of speaking English, which, without the assistance of an interpreter, often lead to communication difficulties. She observes, in particular, that witnesses under cross-examination have a tendency to produce answers of gratuitous concurrence – “the tendency to say ‘yes’ to any question (or ‘no’ to a negative question) regardless of whether or not the person agrees with the question, or even understands it” – a characteristic Aboriginal way of dealing with interviews, especially where there is serious power imbalance (Eades 1995: 10). Nakane’s (2010, 2012, 2015) studies of courtroom interactions in Japan reveal that second-language speakers answering questions in Japanese without the help of an interpreter had difficulties in expressing their replies, which will arguably render the defendant unreliable and dishonest. Some trials in Japan are conducted with partial interpreting assistance, with an interpreter in court in standby mode to render help when defendants or witnesses experience any difficulty in their comprehension or in expressing their replies in Japanese (ibid.). Within this system, the interpreter has to make decisions on her own as to when to intervene or offer help “based on subtle cues such as silent pauses or the defendant’s direction of eye gaze” (Nakane 2015: 13). This, Nakane argues, is a risky practice (ibid.). Indeed, this necessarily changes the role of the interpreter to that of a language assessor, which is beyond the scope of the practice of interpreting. 3. Witnesses and interpretation in Hong Kong courts The above studies all address the issue of partial or non-provision of interpreting services for second language or dialect speakers in the legal process and how this might disadvantage their participation in the legal process. The decision to provide partial interpreting or not to provide interpretation at all is at the discretion of the court or the functionaries. In Hong Kong, however, the right of the witnesses to testify in their native language (usually Cantonese) is well-respected and safeguarded with the ubiquitous presence of the interpreter in court. As was explained in previous chapters, due to the overwhelmingly Cantonese-speaking community in Hong Kong, local Chinese witnesses appearing in court often choose to testify in Cantonese with the help of the court interpreter. When taking the oath/affirmation in the witness box, witnesses will be asked about their language choice, and most of them would choose to testify in Cantonese assisted by the court interpreter, with the exception of expert witnesses, who mostly choose to testify in English in



Chapter 7.  Chinese witnesses testifying in English 115

an English-medium trial. This chapter presents such a scenario in which Chinese witnesses voluntarily waive their right to such interpreting services but choose to testify in English, which they speak only as a second language, or more likely a foreign language. It examines the communication problems these NNES Chinese witnesses have with counsel during the examination process and how their incomprehension of counsel’s questions and their problem in expressing their replies may undermine their evidence during the process. This chapter also discusses how the other audience members in court, including the jury, might be impacted and their participation status compromised during this process, when no consecutive interpretation in open court is provided. 4. The court case This chapter focuses on the High Court murder case heard before a jury (Case 8), in which the defendant was charged with murder for killing the husband of his landlady by hacking the head of the victim with a chopper twice. This lacerated the victim’s scalp and fractured his skull. As the victim died in hospital two days after the assault, the defence suggested that the victim might have survived if proper treatment had been provided to him. The examination of the medical doctors who treated the victim was thus central to this issue. Four expert witnesses were summoned to give evidence in court, including three doctors who provided medical treatment to the victim and a forensic pathologist, who performed the postmortem on him. With the exception of one junior doctor, who chose to testify in Cantonese, through an interpreter, all the other three expert witnesses chose to give evidence in English, albeit they were all local Chinese without a native command of English, as is evidenced in their communication problems with counsel. One may wonder why these witnesses would choose to testify in English when they did not have a sufficient command of the language. This presumably has to do with the prestige associated with the use of English in Hong Kong. As in the case of English in Jamaica described by Brown-Blake and Chambers (2007), the minority of Chinese people proficient in English are generally well-educated professionals from the middle class or upper echelon of society. Medical doctors, being professionals enjoying a relatively high social hierarchical status, might be concerned about a possible loss of face if, in their position as expert witnesses, they have to rely on an interpreter for interaction with the legal professionals of a similar social status. Choosing to testify in Cantonese with the help of an interpreter is tantamount to admitting an insufficient command of the English language, which would be a face-threatening act (Brown and Levinson 1987).

116 Common law in an uncommon courtroom

5. Analytical tools and signals of communication problems Conversation analysis (CA), especially the framework of the adjacency pair in the turn-taking system (Sacks, Schegloff, and Jefferson 1974), can be a useful analytical tool for identifying a potential communication problem. Courtroom questioning is a form of institutionalised communication, which is hierarchical in nature, whereby counsel as the questioner picks the witness as the next speaker. The witness as the selected speaker for the next turn is expected to generate the appropriate action by providing an answer to the question. A failure to produce the expected action by not taking up the turn, as in the case of a long pause, or by providing an answer that is non-responsive to the question asked in the previous turn, may signal a comprehension problem on the part of the witness as the hearer. A problematic answer to a question can be analysed by using the four Gricean maxims of the Cooperative Principle (CP), i.e. quantity, quality, relation and manner (Grice 1975). Non-observance or violation of these maxims in conversation, by saying too much or too little (quantity), saying something false or untrue (quality), irrelevant (relation) or ambiguous (manner), may imply comprehension problems in native and non-native communications on the part of the hearer or miscommunication between interlocutors. A communication problem in conversation, assuming it is recognised as such at the time, inevitably calls for organising a repair, which according to Schegloff, Jefferson, and Sacks (1977: 361) is a mechanism that “operates in conversation, addressed to recurrent problems in speaking, hearing, and understanding.” Repairs can be further classified as self-initiated self-repair, other-initiated self-repair, self-initiated other-repair and other-initiated other-repair (Schegloff, Jefferson, and Sacks 1977). In his study of the comprehension problems in a police interview between an Australian police officer and Tongan-Australian defendant with English as his second language, Gibbons (2002: 211) identified several indicators of possible communication problems in the interaction, including 1) overt statements of incomprehension, 2) asking what to say, 3) responding with apologies, 4) clarification requests, and 5) absent or inappropriate responses. These signals of miscommunication inevitably initiate repair moves in conversation. In the following section, examples will be extracted from this murder case to illustrate the communication problems between counsel and NNES Chinese witnesses in the Hong Kong courtroom.



Chapter 7.  Chinese witnesses testifying in English 117

6. Data analysis As was noted in Section 5 above, of the four expert witnesses, three chose to testify in English, and two of them demonstrated immense difficulties in their communication with counsel, both in understanding counsel’s questions and in expressing their replies in English. These communication problems invariably initiate both self- and other-repair moves in the interaction. With Gibbons’ (2002) indicators of communication problem as a point of reference, I have subdivided the communication problems identified into decoding problems arising from the witnesses’ incomprehension of counsel’s questions, and encoding problems associated with the witnesses’ difficulty in expressing their replies adequately in English. Indicators of a decoding problem include 1) absent or non-responsive answers, 2) responding with apologies, and 3) clarification requests (with or without apologies). Indicators of an encoding problem comprise 1) grammatical errors and mispronunciation and 2) short answers or minimum feedback. The examples below are extracted from the transcripts to illustrate the communication problems and the application of the CA and CP, as well as the employment of linguistic resources in the analysis. 6.1 Decoding problems As was mentioned above, decoding problems include absent or non-responsive answers, responding with apologies and clarification requests. Example (7.1) below serves to illustrate absent and non-responsive answers from the addressee, i.e. the witness, apparently due to his incomprehension of counsel’s questions. 6.1.1 Absent or non-responsive answer In Example (7.1), the senior medical officer of a public hospital, Doctor P, one of the doctors who treated the deceased before his death, is testifying in examination-in-chief. He is first of all asked by the prosecution counsel (PC), as a standard practice, about his current attachment. The doctor, however, seems to have a problem comprehending the word “attachment” as evidenced by his brief silence of one second in turn 2. His silence is a violation of the turn-taking system and has initiated PC’s repair move in turn 3 (other-initiated self-repair). Only then is the witness able to supply the answer PC is seeking from him. The word “attached”, however, continues to trouble the witness in turn  5, where he is asked about his attachment on the day in question (i.e. the day when the deceased was sent to the hospital to which he was attached). The witness obviously takes this to mean the date of his first attachment (posting) to the hospital,

118 Common law in an uncommon courtroom Example 7.1 Examination-in-chief of Doctor P Turn Speaker Utterance 1

PC

Where are you currently attached?

2

W

(1)

3

PC

Which hospital?

4

W

Kwong Wah Hospital.

5

PC

And you were attached to that hospital (.) on the 16th of August last year?

6

W

(2) e:::m, no.

7

PC

Where were you attached then?

8

W

Since e:::m (2), uh since e:::m the, the first of (.) the, the first of the:::January in the 1997.

9

PC

(1) Oh, OK, but you, you’ve been with that hospital since January 1997.

10

W

Yeah, but in the meantime I was promoted to Princess Margaret as a Gen-, Senior Medical Officer in neurosurgery=

11

PC

=Yes

12

W

I returned back at 200-, 2003.

13

PC

So you have been CONSTANTLY at Kwong Wah since 2003.

as is evidenced by his subsequent non-responsive replies, which clearly violate the Gricean maxim of relation (Grice 1975). The witness’s negative answer in turn 6 is evidently not an answer expected by PC, as reflected in his tone of voice when he asks in turn 7 the other-initiated self-repair question “where were you attached then?” The witness’s answer in turn 8 again violates the maxim of relation as he answers the question “where” with a temporal reference “since”. This again prompts PC to a repair move in turn 9. The witness’s elaborations in turns 10 and 12 can also be regarded as non-observance of the maxims of quantity (by saying more than is needed), relation, and manner, in that the replies are not directly relevant and are not clearly worded, resulting obviously from his comprehension problem of the questions asked. Turn 13 is an example of other-initiated other-repair, as PC tries to correct and paraphrase what the witness has said to make it more comprehensible. 6.1.2 Responding with apologies The decoding problem is also manifested in the apologies the witnesses made in response to counsel’s questions. A total of 23 instances of apologies were recorded in the three expert witnesses’ examinations, as illustrated in Table 7.1.



Chapter 7.  Chinese witnesses testifying in English 119

Table 7.1  Statistics of apologies, case 8, Murder Witness

In-chief

Cross

Nil

 2

Doctor P (Senior Medical Officer)

1

 8

Doctor C (Resident)

1

11

Doctor L (forensic pathologist)

The statistics show that the witnesses have a bigger problem in understanding counsel’s questions in cross-examination than in examination-in-chief. One of the obvious reasons is that counsel calling them to give evidence must have read their statements and might have had a chance to meet with them, which helps minimise the chance of miscommunication. Another compelling reason, I would consider, may have to do with the objectives and strategies used by counsel in cross-examination, as was noted in Section  1 above. The antagonistic nature of cross-examination is not conducive to effective communication and comprehension of witnesses, and effective communication after all may not be the ultimate goal of counsel in cross-examination, as noted earlier. Rather, counsel in crossexamination may, knowingly or unwittingly, ask ambiguously worded and syntactically complex questions, thus flouting the maxim of manner and confusing witnesses, making it easier for them to manipulate the NNES witnesses and their answers to the questions put. It was also observed from the statistics that Doctor L, the pathologist, had fewer comprehension problems than the two medical officers. While I have no access to the witnesses’ individual experience of testifying in court, it stands to reason that Doctor L, as a forensic pathologist, had more experience of testifying in court and is thus more familiar with the legal procedures, the court protocols and even the questions to expect in both examination-in-chief and cross-examination. He therefore demonstrated fewer comprehension problems, while the two medical doctors displayed a lot more difficulties in their comprehension of counsel’s questions. Example (7.2) is taken from the cross-examination of Doctor P, who in many instances had to respond to the defence counsel’s (DC) question with an apology. This example serves to illustrate the witness’s difficulty in his understanding of DC’s questions. The syntactically complex question, with two embedded hypothetical clauses, “would you accept that it would have been advisable to have […] somewhere in which the pressure could come […]” might be a little beyond the witness, who apparently does not have an adequate command of the English language to comprehend such a syntactically complex question, as is evidenced in his problem-ridden communication with counsel.

120 Common law in an uncommon courtroom Example 7.2 Cross-examination of Doctor P Turn Speaker Utterance 1

DC

The-, That-, in view of the profuse bleeding, would you accept that it would have been (.) er (2) advisable to have (.) er let’s say a (.) a, a, a discharge tube somewhere in which the pressure (.) could (.) come through during the suturing.

2

W

Pardon?

3

DC

Would it have been possible to stitch him up…

4

W

Mmm.

5

DC

… but to leave some drainage (.) er to-, inside the wound (.) to relieve the pressure (.) or possible pressure on the brain?

6

W

E::r no need, because (.) the bone (.) is already a protective layer (.) e::r over the brain. The problem at that time (.) is only skin bleeding. The one (.) you can do, the most-, the only thing you can do, is just suturing up the bleeding skin (.) with stitch (.) and pressure (weight), and stop all the bleeding. And: (.) on that night, (.) the surgical resident, Doctor C, and also (.) another (.) A&E doctor (1) is-, and-, (1) plus another lady A&E doctor, and also (.) er Doctor M. Three of that-, (.) three doctors (.) is being taking care for that patient (.) on that night, for suturing, only for suturing.

Berk-Seligson’s (2009: 119) study of police interrogation of Spanish suspects demonstrates that semantically overloaded or ‘multi-barrelled’ questions may be another problem impeding NNES suspects’ comprehension. Applying the Gricean maxims of the Cooperative Principle (Grice 1975), DC’s syntactically complex and semantically overloaded question in turn 1 violates the maxim of manner. His efforts at repair in turns 3 and 5 clearly fail, as is evidenced in the witness’s non-responsive ambiguous answer in turn 6, which is itself a violation of the Gricean maxims of relation and manner, arising primarily from his incomprehension of DC’s question. Example 7.3 Examination-in-chief of Doctor C Turn Speaker Utterance 1

PC

Er (.) all, in your opinion, orthodox treatment?

2

W

Er I’m sorry?

3

PC

All, all are (.) normal treatment?

4

W

Yes, all are normal treatment.

Example (7.3) illustrates a different strategy adopted by counsel in examinationin-chief when the witness apologises for his incomprehension, implying a clarification request. In this case, the witness obviously has a problem understanding the word “orthodox” when he responds with the apology – “Er I’m sorry”, as a repair initiator. PC, instead of repeating his question, which he probably considers would

Chapter 7.  Chinese witnesses testifying in English 121



not help the witness’s understanding, rephrases his question by using a more common word “normal” in lieu of “orthodox” and removing the lexical insertion “in your opinion”. The use of lexical insertions in spoken language, which breaks the usual structure of a sentence, may be problematic to hearers without a native command of the language. The witness’s reply in turn 4 indicates that PC’s repair in turn 3 is successful. Example 7.4 Cross-examination of Doctor C Turn Speaker Utterance 1

DC

Did you ever establish what the source of the (.) bleeding was?

2

W

(2.5) Er I’m-, (.) what, what? (.) I’m sorry?

3

DC

The bleeding that caused the enlargement of the haemorrhage.

4

W

[Sor—

Like Doctor P, Doctor C has more problems understanding counsel’s questions in cross-examination than in examination-in-chief. Doctor C was a resident doctor (alternatively called “houseman”), a junior doctor who sutured the scalp wounds of the victim. The suturing, however, failed to stop the bleeding, as blood was later seen oozing from the stitch holes. DC was trying to suggest that the suturing of the scalp wounds was inappropriate as it did not stop the internal bleeding of the brain but instead built up pressure underneath, consequently leading to the displacement of the brain and ultimately to the death of the victim. In Example (7.4), DC is asking the witness if he ever found the source of the bleeding. The witness might have a problem with the use of a formal word “establish” here, when he is seen to have paused for 2.5 seconds before he apologises for his incomprehension. Not knowing (or not bothering to know) what causes the witness’s comprehension problem, DC replies with an elaboration on the bleeding – “bleeding that caused the enlargement of the haemorrhage”, which might further bewilder the witness. If the witness’s problem arises from his incomprehension of the word “establish”, this piece of additional information would not provide any help to his understanding. That is probably why he apologises again in turn 4. As noted by Berk-Seligson (2009), the use of formal language by the interrogators is particularly intimidating for people without a native command of the English language. 6.1.3 Clarifications requests (with or without apologies) While apologies made by the witnesses can be regarded as implicit requests for clarifications, other instances of incomprehension are manifested in overt requests for clarifications, which are sometimes also prefaced with or followed by an apology. Example (7.5) serves to illustrate this.

122 Common law in an uncommon courtroom Example 7.5 Cross-examination of Doctor P Turn Speaker Utterance 1

DC

By the time you reached …

2

W

Yeah.

3

DC

… his brain with your surgery …

4

W

Mmm.

5

DC

… he was, to all intents and purposes, brain dead, wasn’t he?

6

W

What do you mean, sorry, pardon?

In this example, DC is trying to suggest that the brain surgery performed on the victim was far too late. His use of the formal phrase “to all intents and purposes” in lieu of a more casual choice like “actually” or “in fact”, is obviously incomprehensible to the witness, who has to produce a clarification request to initiate a repair turn from DC. It must be noted that both apologies and overt clarification requests can be face-threatening acts (FTAs), directly damaging the positive face of the witness as the speaker (Brown and Levinson 1987), as he is admitting his own shortcomings or incompetence in understanding counsel’s question. At the same time, the clarification requests can also be FTAs to the negative face of the defence counsel as the hearer, as they impede his freedom of action by requiring him to clarify or repeat his question (ibid.). Repeated clarification requests would thus aggravate the damaging effect on the witness’s positive face and the defence counsel’s negative face. To mitigate these effects, speakers may fake their comprehension, as illustrated in Example (7.6). In this example, DC is pursuing the matter of the suturing on the scalp wounds of the victim. Failing to comprehend the question, the witness asks DC to repeat it, and the request is prefaced with an apology (turn 2). DC asks the question again with a little rephrasing (turn 3) as an other-initiated self-repair. At this, the witness tries to respond, despite his incomprehension of the question still, obviously in an attempt to hide his embarrassment in order to mitigate the damaging effect on his positive face (Brown and Levinson 1987), before he apologises again and asks for clarifications. The witness makes a short response (“yes”) in turn 6, as if to indicate his understanding of what DC has said. DC carries on with his argument in turn 7 by starting with a checking tag – “Right?” to make sure that the witness is following his argument, which, however, still puzzles the witness. As if in a desperate attempt to hide his embarrassment, following a six-second silence, the witness tries to say something in response, but has to stop half way and to admit his incomprehension of the question again by asking again for clarifications.

Chapter 7.  Chinese witnesses testifying in English 123



Example 7.6 Cross-examination of Doctor C Turn Speaker Utterance 1

DC

Well, if your suturing is very effective, and that would then build up a pressure on the brain. The pressure would be excessive on the brain instead of escaping through the suture.

2

W

(2.5) I’m sorry? Can you:: repeat?

3

DC

If your suturing is highly effective, one hundred percent effective, but nevertheless below it, some further bleeding or pressure develops, if it can’t es-, if that pressure can’t escape through the suture holes, the pressure would be applied to the brain.

4

W

(2) Mmm. (1) A::nd (2) actually we e:::r (.) actually I, (.) I er (2) I’m sorry, can you (.) can you—

5

DC

Well, in this case we hear that, eventually, when the head was opened up at some time after 6 a. m., the pressure was such that the brain was displaced slightly to one side.

6

W

Yes.

7

DC

Right? What I’m saying is that er, if there was no drain and the sutures were totally effective, any further development of pressure (.) beneath the sutures would have nowhere to escape.

8

W

(6) Actually the su-, the:: (.) the scalp was sutured in the full thickness, and the:: the, the, the bleeding was er (.) e::r (.) was stopped by that, so e::r (.) you mean er (2) and (2.5) and e::r (2) actually I’m, I’m quite, I’m not quite understand your question. Can you er (.) er repeat it again?

6.2 Encoding problems The inadequate command of the English language of the witnesses, primarily of the two medical officers, is best illustrated by their problem in expressing their replies in English. This language problem is reflected both in the grammatical errors made by the witnesses and their mispronunciation problems, as well as in the short answers and minimum feedback provided by the witnesses in response to counsel’s questions or arguments. 6.2.1 Grammatical errors and mispronunciation Both Doctor C and Doctor P made numerous grammatical mistakes in their replies to counsel’s questions. The sentence “I’m not quite understand your question” uttered by Doctor C in Turn 8 of Example (7.6) above is a typical grammatical mistake commonly made by Chinese speakers because of their problem with the use of English modal verbs, although the misuse of modal verbs as in this case

124 Common law in an uncommon courtroom

would not usually result in miscommunication with the hearer, especially with the help of context. In other cases, a grammatical error or a mispronunciation problem may lead to a communication problem, as in Example (7.7), in which the witness mispronounces inter alia the word “sphincter” as “splinter”, resulting in a communication breakdown and subsequently the intervention of the prosecutor. Example 7.7 Cross-examination of Doctor P Turn Speaker Utterance 1

W

Erm: sorry, I can see now. The-, the-, actually that word I can er read is er, sphincter disturbance. There’s no sphincter (.) disturbance .

2

DC

No splinter disturbance?

3

PC

That’s “sphincter”.

4

W

That’s-, it mean patient have no p-, no, no, er uncontrol of the bowel and the: urinary habit.

5

DC

Oh, I see, “sphincter”.

In this example, the witness was asked to read what he had written down in his medical record about the condition of the deceased when he was first admitted to hospital. He mispronounces some words and makes grammatical mistakes in his replies, but the mispronunciation of the word “sphincter” as “splinter” in particular confuses DC, and PC, who presumably has prior knowledge about the witness’s evidence to be given in court, has to intervene to initiate a repair in turn 3. It must be noted that one’s literacy (reading and writing) competence of a language is different from their oral (listening and speaking) competence. As a doctor in Hong Kong, literacy competence in English may suffice during his day-to-day performance of duties, as oral competence is not often required, given that Hong Kong is a Cantonese-dominant society. 6.2.2 Short answers or minimum feedback Short answers or minimum feedback on the part of the witnesses can also serve as an indicator of their lack of the required English proficiency to express their replies adequately and properly in English. Example (7.8) is one of the many examples of this kind, in which the witness responds to counsel’s long questions or arguments by only back-channelling or with only a very short answer.

Chapter 7.  Chinese witnesses testifying in English 125



Example 7.8 Cross-examination of Doctor P Turn Speaker Utterance 1

DC

There’s, there’s nothing particularly alarming about the blood pressure or the pulse?

2

W

Yeah.

3

DC

Is that right? So you got a man who could walk unaided, complained about the headache, with relatively normal blood pressure and pulse.

4

W

Mmm.

5

DC

And then, er, his (.) GCS scan, when he reaches your ward, he gets full marks.

6

W

Yeah, full mark.

7

DC

He gets four for eye opening, five for (.) verbal response orientation, and six for motor response, that’s obeying command, right?

8

W

Yeah.

In this example, all the replies from the witness are either back-channelling (such as “mmm”) or very short answers containing no more than a few words, and none of them are complete sentences. Short answers or back-channelling can be ambiguous and misleading. For example, the witness’s short reply “yeah” in turn 2 to the negatively framed declarative question in turn 1, is ambiguous, and prompts DC to initiate a comprehension check “Is that right?” in turn  3 before he carries on. Moreover, the back-channelling “mmm”, generally understood to be an acknowledgement of comprehension, may be the witness’s tactic to mask his incomprehension. Similarly, the short response “yeah” may not serve as a direct confirmation to the question asked as would be the case in most other situations, but might well be a short response uttered by the witness to feign his comprehension. It must also be noted that where complete sentences are uttered, few of them are grammatically correct, as in turn 6 of Example (7.2) and turn 4 of Example (7.7) cited above. 7. Summary and conclusion NNES witnesses in court demonstrate immense difficulties in their communication with counsel, as manifested in the various miscommunication signals, such as silence, clarification requests, apologies for incomprehension and inability to express their answers adequately and grammatically in English. Communication problems are often a result of the interlocutors’ non-observance of the maxims of the Cooperative Principle for various reasons.

126 Common law in an uncommon courtroom

It is found that NNES witnesses have more problems understanding Englishspeaking counsel’s questions in cross-examination than in examination-in-chief, as counsel in cross-examination tend to flout the maxim of the Cooperative Principle more often, especially the maxim of manner. The violation is reflected in the use of syntactically complex, semantically overloaded questions and language of high register, as well as in the use of declarative questions or tag questions, thus making it difficult for NNES witnesses to understand the questions. On the other hand, a flouting of the Gricean maxims on the part of the NNES witnesses is an inevitable result of their inability to understand the question and/or to express their answers adequately in English. Moreover, it is also observed that a comprehension problem on the part of the witness is easily repaired with a three-turn sequence in examination-in-chief, where a question asked in turn 1 is responded to with either silence or a clarification request in turn 2 as an initiation for repair, and the repair in the next turn often successfully serves the purpose of repairing the trouble source in turn  1. However, in cross-examination, a trouble source turn can lead to a number of unsuccessful repair turns. This, as mentioned above, has to do with the objectives of cross-examination, one of which is to discredit the witnesses and to render them unreliable and untruthful as was mentioned in Chapter 4. Thus counsel in cross-examination may take advantage of the witnesses’ comprehension problems to manipulate their answer to the questions put. In other words, they may turn the witnesses’ disadvantage to their advantage. The NNES witnesses, not equipped with the required linguistic skills to comprehend counsel’s questions and to express their replies adequately and accurately, are prone to manipulation by counsel in cross-examination, and appear to be more suggestible and less assertive. In the special context of the Hong Kong courtroom, this communication problem and the disadvantage experienced by NNES witnesses have other ramifications, one of which is the impact on jury comprehension. Where the testimony is given in English, without the mediation of the interpreter in open court, as was noted above, jurors have no access to the chuchotage provided for the defendant in the dock and can only rely on their knowledge of English to access this examination process, in which technical medical knowledge and terminology are involved. There is no knowing whether they understand the questions asked any better than the doctors themselves and the evidence adduced during this process. However, if professionals like medical doctors, who at the very least hold a bachelor degree in medicine and are thus well qualified for (albeit under the law exempted from) jury service (Jury Ordinance, § 5(1e), 1999), experience such immense difficulties in their communication with counsel in court, would this not pose an even bigger problem for lay jurors, (non-lawyers and non-doctors in this case), with an average matriculation level (high school)



Chapter 7.  Chinese witnesses testifying in English 127

of education? If jurors, as the judges of facts, who are expected to return a true verdict based on the evidence heard in court, have a problem with their comprehension of the evidence adduced during this process, what implication does this have for the delivery of justice? This jury comprehension problem in the Hong Kong courtroom will be examined in the next chapter.

Chapter 8

English trials heard by Chinese jurors

The previous chapter examined the linguistic disadvantage experienced by nonnative English-speaking (NNES) witnesses testifying in English in court and discussed how this might also impact on other audience members who either speak no English or do not have a native command of the English language, including in the latter case Chinese jurors. This chapter takes one step further to explore the comprehension of the NNES Chinese jurors as the “judges of facts” in the Hong Kong courtroom. Drawing on evidence from the two jury trials of my research data, the findings of a previous study, as well as one case of the Court of Appeal in Hong Kong, this chapter provides evidence about the jury comprehension problem in the High Court of Hong Kong. It also discusses how the scenarios presented in particular in Chapters  6 and 7, where juries have to rely entirely on interactions in English due to the use of the chuchotage mode of interpretation or a total absence of interpretation, might impact on the comprehension of the jury and potentially on the administration of justice.1 1. Introduction The jury system, under which defendants are tried by their fellow members of the community, is an integral part of the common-law legal system. The institution of trial by jury is enshrined in Chapter 39 of the Magna Carta (The Great Charter), which states that no free man shall be punished except by the lawful judgment of his peers (Magna Carta, 1215). Since jurors are drawn from the community at random to be “judges of fact” and jurors make decisions as a group, their decisions are believed to be broadly representative of different sectors of the community, which can avoid the potential bias in a decision produced by a single judge. 1.1 Concern about jury comprehension The functioning of the jury system is based on the presumption that jurors understand and follow the legal instructions given by the judge, and apply them correctly 1.  See E. Ng (2016a) for a full paper discussing the jury comprehension issue in Hong Kong.

130 Common law in an uncommon courtroom

to the evidence adduced during the proceedings. The introduction of lay people into the judicial system as “judges of fact”, however, gives cause for concern about these lay people’s comprehension of the legal language used in court. This concern stems firstly from the nature of legal language, understandably because legal language has its origins in old English, French and Latin (Mellinkoff 1963; Tiersma 1999, 2008, 2010). As noted in the preceding chapter, legal language is intended for legal practitioners, not for ordinary lay people. The strategic use of language by counsel in court, as noted in Chapters 4 and 7, is another reason for concern. The late Professor Peter Tiersma, who was both a linguist and a law professor, made very perceptive remarks about the use of language by lawyers when he noted that, “[o]ne of the great paradoxes about the legal profession is that lawyers are, on the one hand, among the most eloquent users of the English language while, on the other, they are perhaps its most notorious abusers” (Tiersma n.d.). He points out that lawyers have developed some linguistic quirks or aspects of legal style that serve little communicative function besides marking them as members of the legal fraternity (Tiersma 1999: 69). In his ethnographic study of spoken language in the courthouses of North Carolina in the United States, O’Barr (1982: 26) observes that many jury instructions are “mumbo jumbo” to even well-educated Americans. Indeed, the nature of legalese and the strategic use of language in court make jurors’ access to the judicial process, especially to counsel’s speeches and court instructions, highly dubious. This gives cause for concern, as any comprehension problems matter considerably to the administration of justice and may even result in a miscarriage of justice. Indeed, in capital cases, jurors’ comprehension of the instructions is literally a matter of life and death. A defendant’s right to a trial by his/her peers has little meaning if these “peers” do not understand the law and the evidence that govern their decisions (Tiersma 2009). 1.2 Studies of jury comprehension in common-law legal systems Two mainstream methods have been employed by researchers to assess jurors’ comprehension of judicial instructions (McKimmie, Antrobus, and Baguley 2014). The first method is to assess jurors’ objective comprehension, such as the paraphrase test developed by Charrow and Charrow (1979) in their pioneering study to investigate the comprehensibility of civil jury instructions in California. This test required jurors to paraphrase the meaning of the speech segments played to them, in their own words. Charrow and Charrow’s (1979) study showed that half of the prospective jurors in their experiment had problems understanding the pattern instructions, and that linguistic features typical of legalese caused the comprehension problem. The study identified a number of linguistic features typical of jury instructions as impeding jurors’ comprehension. Such legalistic features include the use of “as to” in lieu of “about”, “overuse of nominalisations”, “avoidance



Chapter 8.  English trials heard by Chinese jurors 131

of modal verbs such as “must” and “should’, “technical or legal lexical items”, “use of double or triple negatives”, “use of passives”, “poor discourse structures” and “too many embeddings”. The study also shows that a rewriting of the instructions using plain English led to a significant improvement in the subjects’ understanding of the instructions. A later study using a similar methodology by Steele and Thornburg (1988) yielded more or less the same results. The juror comprehension problem has been addressed by Dumas (2000), O’Barr (1982) and Tiersma (1993, 1999, 2009), which ultimately led to the rewriting of the pattern jury instructions in some of the states in America to improve their comprehensibility. The other approach is a subjective or self-report measure of jurors’ comprehension of judicial instructions whereby jurors are asked to rate their own comprehension by choosing the scales or answers provided by researchers as in the studies conducted by the New Zealand Law Commission (1999), Thomas (2010) and Trimboli (2008). The majority of the jurors surveyed in these studies reported that they understood the instructions. These results are apparently at odds with the findings of the research by paraphrase tests. In the light of these divergent results generated by the two different methods, McKimmie, Antrobus, and Baguley’s (2014) study adopts a dual approach by measuring jurors’ subjective and objective comprehensions of judicial instructions. They first asked jurors to rate their understanding of the expressions “beyond reasonable doubt” and “burden of proof ” before asking them to explain the two expressions in their own words. A majority of the jurors reported that they understood both expressions very well. The objective paraphrase test, however, shows that a substantial proportion of the jurors were mistaken about the meanings of “beyond reasonable doubt” and “burden of proof ”. These findings seem to suggest that the subjective method, which relies on jurors’ self-reported understanding of judicial instructions, may not be entirely reliable. As Trimboli (2008: 11) admits, “[j]urors may not have been entirely candid in their responses about their levels of comprehension or they may believe that they understood when perhaps they did not”. The underlying problem with jury instructions, as suggested by Gibbons (2017: 143), stems from what he dubs as the “two audience dilemma”, with the jury as the primary audience for jury instructions and the appeal court judges as the secondary audience. He contends that judges are “highly sensitive” to the secondary audience, as they do not want to see their decisions overturned by the appeal courts for not properly instructing the jury. As a result, the secondary purpose, that is, to avoid appeals, has come to dominate the primary purpose of informing the jury (Gibbons 2017: 144). He argues that appeal courts have tended to ignore the comprehension aspect while instead focusing only on the legal aspect and that appeals are mostly made on legal grounds, not on the grounds of comprehension problems concerning jury instructions (ibid.).

132 Common law in an uncommon courtroom

Ritter’s (2004) study reviews a number of appellate courts’ decisions in the United States and finds that the courts in general cling to the presumption that the jury understands and follows instructions. She argues that this presumption is built on nothing but the courts’ subscription to the notion that the questioning of the validity of this presumption poses a threat to the survival of the whole justice system. For this reason, appellate courts are generally unreceptive to claims that the jury instructions are incomprehensible (Ritter 2004: 163). She argues that this presumption is ill-founded and contends that “even the best-intentioned juror, desirous of fulfilling his or her oath, has little control over his/her ability to comprehend legalistic instructions” (Ritter 2004: 197). Indeed, to lay persons, these legalistic instructions, as Frank (1930: 195) puts it, “might as well be spoken in a foreign language”. 2. The issue of jury comprehension in Hong Kong Now, what if indeed these words are uttered in what actually is a foreign language of the jurors? This happens to be the common scenario of the Hong Kong courtroom, where Chinese jurors sit in a trial conducted in English, for the very reason that Hong Kong is by and large a Chinese community, as mentioned throughout this book. This gives an acute cause for concern about their ability to understand jury instructions, counsel’s speeches and all the other utterances made in English when no interpretation is available to them. Given the overwhelmingly Cantonesespeaking local population, those serving in juries nowadays are mostly Cantonesespeaking with a bilingual knowledge of English. What confronts these jurors then is not just the legal language, but the English language per se, which most of them speak only as a second or more frequently a foreign language. In other words, the comprehension problem for jurors in the Hong Kong courtroom is much more than just the standard intralingual legal-lay communication problem; rather it is an interlingual communication gap between English-speaking legal professionals and jurors who are both lay participants and non-native English speakers (NNES) in the courtroom. This chapter seeks to complement an earlier survey study of the juries in Hong Kong, findings of which will be examined later in this chapter. The analysis presented in this chapter is based on the court proceedings of two authentic jury trials from the Court of First Instance (CFI) of the High Court, and a judgment of the Court of Appeal quashing a jury verdict. The judgment expresses scepticism about the jury’s comprehension of the trial court’s instructions. The recordings of the two jury trials are part of my research data obtained from the High Court, as noted in Chapter 1, while the judgment was downloaded from the website of the



Chapter 8.  English trials heard by Chinese jurors 133

Judiciary of Hong Kong (Lai She Hung v. HKSAR CACC 46/2005). Some anecdotal evidence from the newspaper reports of two recent jury trials will be cited to reinforce the argument. 3. The jury system in Hong Kong The jury system was introduced to Hong Kong in 1845 (Duff et al. 1992), soon after Hong Kong became a British colony, and is used in all criminal trials in the Court of First Instance (CFI) of the High Court and in a few civil cases such as false imprisonment and defamation, as noted earlier. To qualify as a juror, one must be a Hong Kong resident of good character, aged 21 or above but below 65, and not suffering from any physical disabilities such as blindness or deafness. A juror must also have “a sufficient knowledge of the language in which the proceedings are to be conducted to be able to understand the proceedings” (Jury Ordinance, § 4(1c) 1999). Criminal trials in the CFI were conducted solely in English until 27 June 1997, when the first criminal trial was conducted in Chinese (Cantonese) in the CFI. Thereafter, the court could hear a trial in either English or Chinese as it saw fit (Provisional Legislative Council 1997). However, over two thirds of the criminal trials in the CFI in 2017 were still conducted in English (Department of Justice 2017), as was noted in Chapter 2 (see also Appendix 2). Jurors’ English proficiency is therefore essential even to this day. Because of the use of English in court and the requirement for jurors to possess a sufficient knowledge of the language in which trials are conducted, there has been a tendency for juries to consist of expatriate residents and well-educated middle class and professional people, especially in the early colonial days (Duff et al. 1992: 22). Therefore, one of the criticisms levelled against the jury system of Hong Kong was its lack of randomness and representativeness of the community it purportedly served (Chan 1997; Duff et al. 1992). For example, there were only 119 jurors on the jurors list of 1854 (Hong Kong Government 1854, February 25), representing only 0.2% of the total population of around 60,000 people then (Munn 2001), and all of them were expatriate residents of Hong Kong. They certainly did not represent the predominantly Chinese-speaking community and could not be considered “peers” of the defendant. They were chosen obviously because of their proficiency in the English language. And those few Chinese who were included on the lists in later years were understandably people from the upper echelon of society, who were usually well-educated professionals proficient in English. Due to the difficulty in securing eligible persons to serve as jurors, apparently because of the English language requirement, unlike in England and in the United States, where a jury consists of a panel of 12 members, the jury in Hong Kong

134 Common law in an uncommon courtroom

started with only six members and was later increased to seven in 1864; from 1986, the number of jurors in a jury could be increased to nine in complex cases (Duff et al. 1992). A valid verdict is either a unanimous or a majority verdict of five-totwo or six-to-one in a seven-member jury. In a nine-member panel, a majority verdict must be seven-to-two or eight-to-one (Jury Ordinance, § 23 1999). With the widening of the jury pool, which now represents roughly 10% of the total population as the number of residents eligible for jury service stood at 725,600 in 2015 (Judiciary Administration 2015), one is concerned less about the jury’s randomness and representativeness of the community, but more about jurors’ ability to hear trials conducted in English. Despite the requirement for jurors to have a sufficient knowledge of the trial language, the legislation is silent as to how that linguistic competence is to be measured, but the administrative practice has been to include in the jury pool only those with at least an educational attainment of Form 7, or its equivalent (Law Reform Commission 2008, 2010). This, however, cannot guarantee a sufficient knowledge of the English language to hear a case in English, and jurors who have a problem with their comprehension of English utterances made in court cannot always benefit from the interpretation provided in court, as was noted earlier. This will be further elaborated below. 4. The bilingual Hong Kong courtroom and jury’s access to the interpreted trial discourse The ubiquity of interpreters in the Hong Kong courts for reasons explained throughout this book gives one a false impression that jurors having a comprehension problem can always benefit from the interpretation provided in court. The misconception about jurors’ full access to the interpretation provided in court is shared even by some judges in court. For example, when some jurors selected for jury service ask to be exempted from the service, citing “poor English” as the reason, some judges would try to talk them into accepting the service by telling them that the proceedings will be bilingual and that they have a chance to hear everything in two languages. This, however, is in fact not the case. As was noted and demonstrated in previous chapters, despite the provision of interpretation throughout a trial conducted in English, the service is provided primarily to cater for the needs of Cantonese-speaking witnesses and defendants and not for those of the jurors, who are selected for jury service because they are supposed to have an adequate knowledge of the English language. Although jurors with a comprehension problem may benefit from the interpretation provided in open court, not all the interpretation provided is actually accessible to everybody in the courtroom because of the different modes of interpretation used and the



Chapter 8.  English trials heard by Chinese jurors 135

need for the interpreter to shift from one mode to another throughout the trial, as was demonstrated in earlier chapters. In particular, judges’ jury instructions and summings-up, and counsel’s speeches, where the jury is the addressee, interpretation is provided not in open court, but in chuchotage for the defendant only. In the rare cases where a witness chooses to testify in English, such as the medical experts described in Chapter 7, no interpretation in the consecutive mode will be provided because the witness examination process itself does not require the mediation of an interpreter. Therefore, jurors who do not have a sufficient knowledge of English may have a serious problem accessing the expert evidence, often technical in nature. The rest of this chapter will provide evidence to illustrate the Hong Kong juror comprehension problem. 5. The survey study by Duff et al. (1992) In the late 1980’s, Duff and his team carried out a jury project, to find out the extent to which jurors in Hong Kong understand the trial process, by means of a survey, a self-report measure as mentioned above, which invited people who had served as jurors to report on their jury experiences. The respondents were asked to fill out questionnaires and to send the completed questionnaire back to the researchers. Back then, all the trials in the High Court were conducted in English. 5.1 Background information about the respondents Altogether 58 respondents with jury experience completed and returned their questionnaires. Of all the respondents, 80% reported that they preferred to speak Cantonese at home and 27% of them gave a negative answer to the question “If you were to read an English newspaper, would you fully understand the content of it?”; while 65% of them indicated that they were not able to understand an English television news broadcast (Duff et al. 1992: 22). 5.2 Findings about their comprehension of the court proceedings One third of the respondents admitted to experiencing varying degrees of difficulty in comprehending the evidence, the legal terminology and the language of the court. One of the respondents admitted, “I am quite innocent about the procedure, and my English standard is too poor to be a juror” (Duff et al. 1992: 105). The written responses by some of the jurors indicate serious problems of their ability to express themselves in English. The following are two examples (Duff et al. 1992: 70):

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The nature may involve many legal points. I cannot sure that I understand fully. It is because we had only keep waiting at the jury rooms for that three days and eventually jurors were dismissed due to the insufficient evidently.

One of the respondents was an expatriate and made the following comment: I am a native English speaker. I could not hold a simple English conversation with two of my fellow jurors. How much of the proceedings did they understand?  (Duff et al. 1992: 70)

Jurors may feel too embarrassed or intimidated to flag up a comprehension problem in the process of the trial. As suggested by Gibbons (2017: 146), the physical context of the courtroom and the differential social relationship between the judge and jurors render many jurors too intimidated and unwilling to communicate with the judge. This is perfectly demonstrated by the following remark made by one of the respondents: The whole atmosphere prevented anyone raised questions. You’ll make yourself a fool in front of everybody. If you spoke in Chinese, the question will be translated. You’ll feel more stupid. (Duff et al. 1992: 74)

The respondents’ self-evaluation and the way in which the questionnaires were completed led the researchers to the conclusion that a “significant proportion of jurors have some difficulty in understanding the English language” (Duff et  al. 1992: 84) and may not have a sufficient knowledge of English “to understand the evidence of witnesses, the addresses of counsel and the judge’s summing-up” (Duff et al. 1992: 22). 5.3 Comprehension and verdicts It is interesting, if not disturbing, to note that among the respondents who admitted difficulty in following the evidence, close to 80% were members of juries which convicted the defendants.2 Of the respondents “who admitted varying degrees of difficulty in understanding either the evidence, and/ or the legal terminology and/ or the language used in the trial”, 75% were members of juries which convicted (Duff et al. 1992: 92). The researchers thus conclude that “some juries which convicted included members whose language comprehension skills were suspect” and that “many defendants are convicted by juries which contain members who do not fully understand the evidence or some other part of the trial process” (ibid.). 2.  Respondents were asked about the verdict of the jury in which they served, not about their individual decisions.

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5.4 Suggestions from respondents The respondents also made some suggestions for improving their comprehension, which inter alia include providing the jury with a precis of the judge’s summingup, getting an interpreter to interpret it for the jury, or else conducting the trial in Cantonese. This can also be regarded as evidence of the respondents’ difficulty in accessing the trial discourse in English without the help of the interpreter. The following section presents some observations from the court data to support the findings of Duff et al.’s (1992) study and the concern about juror comprehension in the Hong Kong courtroom. 6. Observations from the authentic court proceedings The two jury trials consist of one murder and one rape case, both conducted in 2007, each of which has a jury of seven members. With the exception of one juror in the murder trial, who appears to be Indian or Pakistani, judging from his name and his accent when he was heard taking the oath, all the other jurors have Chinese names and a typical Cantonese accent. 6.1 Request for exemption from jury service for reason of poor English As was noted in Section 4 above, many prospective jurors selected for the service cite “poor English” as a reason for exemption. This happens also in the rape trial, as shown in Example (8.1). Example 8.1 Prospective juror addressing judge through interpreter, Case 9, Rape Turn Speaker Utterance 1

JR

2

I

Your Lordship, because I am a Chinese em language teacher. All along I have been em using (.) em Chinese as er teaching medium, and very seldom using em English. Now I’m worried that during the whole process, em (.) I will not understand some of the questions.

3

J

(1) Well, you will hear them in both languages, Madam.

4

I

5

JR

6

I

In that case, I am willing to accept that.

7

J

And er, I will be summing up at the end of it. But er, (.) that summing-up will also be (.) interpreted. So, you have a chance to hear it in both languages again.

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In this example, a prospective juror (JR) whose name has just been drawn from the ballot box is asking the judge in Cantonese for an exemption from serving on the jury because of her English inadequacy. The judge, however, succeeds in persuading her to accept the service by reassuring her that the trial would be bilingual with the assistance of an interpreter. The judge is right in so far as interpretation of testimony provided in the consecutive mode is concerned. As was noted earlier, testimony given in English and interactions between the court personnel throughout the trial are nonetheless interpreted in chuchotage, inaccessible to jurors. Apparently the judge is telling only part of the truth, certainly not the whole truth. The fact that the juror had to interact with the judge through the court interpreter is evidence of her insufficient knowledge of the English language. 6.2 Witnesses testifying in English and jury’s access to the evidence As was noted above, not all the witnesses have to testify through an interpreter. Expert witnesses, for example, would mostly choose to testify in English without the mediation of an interpreter. This is what happens in the murder trial, where three out of the four medical experts choose to testify in English, despite their apparently inadequate English proficiency for the purpose, as was demonstrated in the preceding chapter. This is when jurors have to rely on the utterances made in English for accessing the evidence adduced during this process, as no consecutive interpretation in open court is provided and the chuchotage provided for the defendant is inaccessible to them. It is questionable whether jurors understand counsel’s questions any better than the expert witnesses themselves. Their ability to comprehend the medical evidence given by the expert witnesses is equally doubious. This could be aggravated by the problem-ridden communication between counsel and the expert witnesses, resulting primarily from the latter’s poor command of the English language, scenarios of which were presented in the preceding chapter. 6.3 Legalistic features of jury instructions identified – implications for Chinese jurors Unlike in the United States, there are no pattern jury instructions in Hong Kong, although the Judiciary of Hong Kong does provide judges with Specimen Directions for Jury Trials. These directions are, however, for reference only and judges are free to refer to them or to improvise their instructions (Cheng, Cheng, and Li 2015). Nevertheless, the jury instructions given at the beginning and towards the end of the two trials are observed to present features identified by Charrow and Charrow (1979) as impeding jury comprehension. Examples (8.2) and (8.3) are extracts of jury instructions given at the start of the two trials. For easy reference,



Chapter 8.  English trials heard by Chinese jurors 139

the sentences in the two extracts are numbered and their legalistic features are identified in the rightmost column of each table. Example 8.2 Extract from jury instructions, Case 8, Murder No. Utterance 1 Now, members of the jury, you’ve been chosen as jurors to consider the facts of this case and eventually to return a verdict as to whether this defendant is guilty or not guilty of the offence of murder with which he has been charged. 2 As judge and jury, it’s our task to try the case together but we have different functions to perform during the trial. 3 I act as the referee between the parties to ensure that the trial is conducted fairly and in accordance with the rules of procedure and the evidence. 4 At the end of the trial, I should sum the case up to you and remind you of such parts of the evidence which I think might help you to reach your verdict.

Legalistic feature The use of “as to” and a long sentence (45 words) with an embedding

The use of “it’s our task to” to avoid the use of a modal verb “must” or “should” Formal expression – the use of “in accordance with” in lieu of “according to” Double embeddings

Example 8.3 Extract from jury instructions, Case 9, Rape No. Utterance 1 Let me give you a general outline of the (.) procedure that is usually followed in a criminal trial. 2 Seven of you have been selected as the judges of facts in this case, and you are the sole judges of facts. 3 It’s your duty to carefully, calmly and dispassionately consider the evidence that you hear and without the slightest trace of sympathy for or prejudice against any party involved in the trial, so the facts in the case are for you. 4 If I give you any direction or make any ruling during the course of the trial, you are required to accept that ruling. 5 On the other hand, I’m the sole judge of the law.

6

7

The system of justice which we practise is adversarial in nature, which means that the presentation and examination of witnesses is substantially in control of counsel for prosecution and counsel for the defence. Subject to certain rules, which I enforce, you and I as impartial judges sit and listen to what counsel say and what the witnesses have to say when they are giving their evidence.

Legalistic feature the use of embeddings and passives technical terms The use of “it is your duty” and a long sentence with embeddings and technical words (41 words)

Avoidance of the use of a modal verb “must” by using the passive voice – “you are required to” Technical terms (some students in the interpreting class understood the word “sole” as “soul”) A long sentence with embeddings and technical terms such as “adversarial” (33 words) A syntactically complex sentence with embeddings and formal expressions such as “subject to” (33 words)

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Like the pattern jury instructions in the United States, the jury instructions used in these two jury trials present linguistic features similar to those identified by Charrow and Charrow (1979), which are likely to cause comprehension difficulties for the jurors in Hong Kong too. Moreover, the comprehension problem is more likely to be aggravated by the fact that they are non-native English speakers. The transcriptions of the audio recordings of the court proceedings by my local Chinese research assistants, all fresh graduates with a degree in translation (and qualified for jury service), indicate that other non-technical aspects of the English language are equally problematic. For example, in her summing-up of the murder trial, at one stage the judge said, referring to the evidence of the eye-witness, “things got a little heated” This was transcribed as “Thanks God (a little heat)” with the parenthesised words as possible hearings. The interpretation performance of the final-year translation students in my Legal Interpreting class reinforces this observation. So, if the low accuracy rate in both the transcription and interpretation of these jury instructions is any indication of their comprehension by the jurors, one can reasonably conclude that most of the jurors would have a problem with their understanding of these particular jury instructions. 6.4 Mumbling and fast speech as aggravating factors For listeners without a native command of the language, it is not just the words uttered by the speaker, but also the manner in which these words are uttered that has a direct bearing on comprehension. In the murder case, the judge speaks very fast and mumbles her words throughout the jury instructions and the summingup. The transcriber and many students in the Legal Interpreting class had difficulty hearing ordinary, non-technical words including even the first part of sentence 1 in Example (8.2) – “Now, members of the jury” – as these words were not articulated distinctly. As questions from jurors are not encouraged, at least not in open court during the trial, there is no knowing to what extent those words uttered by the judge were accessible to the jurors. They might feel their face threatened for having to raise a comprehension problem in court, as reported by a respondent in Duff et  al.’s (1992) study mentioned above. In this murder case, the judge started her long mumbling summing-up in the afternoon of Day 7 of the trial and carried onto the morning of Day 8. It was not until the judge was about to resume her summingup in the morning of Day 8 that she was informed by the court clerk of the jury’s request for her to speak more slowly and louder. The jury members must have had great difficulty in their understanding of the summing-up the day before, but did not summon the courage to interrupt the judge. For the next few minutes or so after the court clerk had whispered the jury’s request to her, the judge tended to

Chapter 8.  English trials heard by Chinese jurors 141



raise her voice a little and to slow down a bit, but soon she returned to her previous manner. Thereafter no more requests were heard from the jury, who might have deemed it too embarrassing or otherwise futile to make any more requests. 6.5 Reading of the jury oath/affirmation As noted above, jurors are silent observers and rarely do they have to speak in court. When they do speak, for example to ask for an exemption from jury service, they usually choose to do so in Cantonese and to have their utterances interpreted into English by the court interpreter (as in Example (8.1)). It is therefore not possible to assess their English proficiency from their spoken English. The foreman of the jury elected by his/her fellow members as their spokesperson is presumably the most competent English speaker of the jury. The only occasion on which all the jurors are heard speaking in English is when they take their jury oath or affirmation in English. The following is the English version of the jury oath/affirmation used in Hong Kong: Example 8.4 Jury oath/affirmation I (name)

swear by Almighty God (for Catholics/ Christians)

that I will give a true verdict in this case according to the evidence.

solemnly, sincerely and truly affirm (for non-Catholics/Christians)

The moment a juror takes his/her oath/affirmation is usually a moment of revelation about his/her English proficiency. Most of the jurors in the two jury trials in this study are found to struggle with their pronunciation of the words highlighted with boldface, which obviously do not exist in their vocabulary. In a recent high-profile bribery trial in which the former Chief Executive of the Hong Kong Special Administrative Region (equivalent to the Governor in the colonial era), Mr Donald Tsang stood as the defendant, a juror selected had to be replaced after she had mispronounced “verdict” as “v dict”, “solemnly” as “solely” and “affirm” as “afim” when taking her affirmation. The judge had to demonstrate to her the correct pronunciation of those words and asked her to repeat after him; still the juror was not able to pronounce those words correctly and was as a result excused, as the judge opined that jurors are required to possess a sufficient knowledge of the English language (Lau 2017; Yeung 2017). 6.6 Jury’s comprehension problem of legal terminology In another recent High Court trial for a rape case (HCCC152/2016), a sevenmember jury did not understand the word “acquit” used by the judge in his jury

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instructions, and having retired from court for deliberation for over an hour, had to return to ask the judge for an explanation. The judge explained to the jury that “acquit” was equivalent to “not guilty”, and took the opportunity to explain also the meaning of “convict” as being “guilty”, adding that he could not think of a simpler explanation (Au-yeung 2017). The above observations may serve as evidence from which one can infer jurors’ “insufficient knowledge of English”. However, unlike in a bench trial, where the judge has to give reasons for the verdict, the jury does not have to justify its decision. It would therefore be difficult to find concrete evidence of a comprehension problem leading to a problematic verdict simply by observing a trial or reviewing the transcript. For the same reason, it would be equally difficult to appeal against a jury verdict on the grounds of a comprehension problem. Section 7 below presents a rare case where the Court of Appeal of Hong Kong quashed the verdict by a jury and expressed concern over the jury’s ability to comprehend the directions given to it by the trial judge. 7. Appeal against a jury verdict In HKSAR v. Lai She Hung (2004), the defendant was charged with one count of false imprisonment (Count 1) and two counts of rape (Counts 2 and 3). It was the prosecution’s case that the complainant was forced to stay in the defendant’s apartment (subject matter of Count 1) and was later raped by the defendant twice (subject matter of Counts 2 and 3) in the same apartment on the same day. Following a trial in the CFI before a judge and a jury of seven members, the defendant was acquitted of Counts 1 and 2 but was convicted of Count 3. The defendant appealed against the conviction based on the following grounds (Lai She Hung v. HKSAR 2005). 7.1 Inconsistency of verdicts and Court of Appeal’s response The complainant gave evidence in the CFI to the effect that the defendant imprisoned her in the apartment despite her pleas to leave and raped her as she hit him and shouted for help. The defendant then chatted to her through the night and later raped her for the second time despite her protest. In the Court of Appeal, counsel for the appellant (defendant in CFI) raised inconsistency of verdicts as the first ground of appeal and she argued: It is difficult, if not impossible, in the circumstances, to follow the jury’s reasoning when they disbelieved the complainant in relation to Counts 1 and 2, which formed the gravamen of her complaint, but yet relied on the same witness in relation to Count 3. (Lai She Hung v. HKSAR 2005)



Chapter 8.  English trials heard by Chinese jurors 143

The Court of Appeal accepted this ground and pointed out at the same time that the CFI judge had done his best by giving fair and clear directions to the jury in his summing-up, as expressed in the following remark: Our concern about the apparent inconsistency in the verdicts was something which the judge, in a summing up of paramount fairness and clarity, had anticipated and had sought to avoid with the following directions.  (Lai She Hung v. HKSAR 2005)

The judgment of the Court of Appeal goes on to cite the trial judge’s summing-up to support the above observation. The gist of the trial judge’s summing-up with regard to the verdicts of the three counts is that in theory it is open to the jury to return different verdicts on the three different counts, but in practice, it may appear to be more reasonable for the jury to find the defendant guilty on all or on none of the charges. It is, however, anybody’s guess whether this message got across to the jury. After all, the judge’s directions worded in typical legalese (as shown in Example (8.5)) are unlikely to be perceived as “of paramount clarity” by the jurors, but more likely as confusing and perplexing. Example 8.5 Extract of judge’s summing-up, HKSAR v. Lai She Hung 2004

All permutations are, as a matter of law, available to you. You decide in giving these three counts your separate consideration. But you may think – and again this is entirely a matter for you – that as the case has been presented to you on the issues that are laid before you, and where the central issue in the case is one of consent – ‘Did this lady consent to what happened or did she not? Did she consent to remain in the flat? Did she or did she not consent to have sex with the defendant?’ – then, in practice, you may think – and it is entirely a matter for you – that these three counts stand or fall together; guilty to all or not guilty to all.

Note the use of the formal word “permutations”, the technical expressions “stand or fall together” and the overuse of embeddings. All this can be problematic to the understanding of even jurors with English as their native language, or at least as a lingua franca, as in the case of American jurors, not to mention Chinese jurors in Hong Kong. 7.2 The jury’s confusion over the verdicts While one can only speculate on the jury’s comprehension of these directions, the jury’s confusion over the meaning of a majority verdict may provide a glimpse of the jury’s English knowledge, which also aggravates the appellate court’s concern about the jury’s understanding of the directions as it observes:

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Whether or not the obvious wisdom of these directions fell on deaf ears because they were not fully comprehended by the jury is difficult to say. […] What seems plain, whatever may have been the reason for it, is that this particular jury had the greatest difficulty in following explicit directions which had been given to them about the nature of majority verdicts, supplemented, as these directions were, by a written form setting out the questions they would be asked at the time they returned their verdicts. (Lai She Hung v. HKSAR 2005)

The Court of Appeal is referring to the transcript of the trial in the CFI which records the exchanges of the court clerk, the judge and the jury foreman, interspersed with the remarks of the defence counsel, when the jury was asked to return its verdicts in court. Due to the jury foreman’s incomprehension or confusion over the meaning of ‘majority verdicts’, what would have been a short exchange of a few turns has resulted in a much extended interaction of a transcript of 138 turns. Example (8.6) is an extract of the transcript. Example 8.6 The jury asked to return verdicts3 CLERK: May the foreman please stand. On the 1st count of false imprisonment against the accused, Lai She-hung, have you reached your verdict upon which at least five of you have agreed? FOREMAN: No. COURT: Very well, let’s go to the next count. Members of the jury, have you reached a verdict on any count upon which at least … FOREMAN: I’m sorry, maybe I misunderstand … COURT: Yes. FOREMAN: … the question, so … COURT: Have you reached a verdict on the 1st count of false imprisonment upon which at least five of you are agreed? FOREMAN: No.

As it turned out, the jury had already reached a not-guilty verdict of 1 to 6 in respect of Count 1, despite the fact that the foreman repeatedly told the court that the jury had not reached one upon which at least five of the jurors were agreed. Thinking that the foreman might have a problem with his understanding of the phrase “at least five”, the defence counsel at trial interrupted at a later stage to suggest that the court rephrase it to “five or more” and the court did accordingly, which, however, did not seem to help. The transcript shows that the jury foreman, who, as noted above, is usually the most competent English speaker of the jury, had tremendous difficulties in his comprehension of the meaning of a majority verdict.

3.  See Appendix 4 for a full transcript relating to this interaction.

Chapter 8.  English trials heard by Chinese jurors 145



7.3 Conviction quashed The inconsistency in the verdicts returned and the jury’s confusion over the meaning of majority verdicts, ultimately led to the quashing of the defendant’s conviction on Count 3 by the Court of Appeal as it observed: Set against an evidential background where the jury acquitted on the first allegation of rape […], this left in our opinion no logical or reasonable basis for a conviction on the later rape. […] The circumstances in which the verdicts were recorded have only added to our concern about the conviction. Accordingly, we have concluded that the conviction on count 3 is unsafe and cannot be permitted (Lai She Hung v. HKSAR 2005) to stand.

Although the Court of Appeal does not directly spell out a comprehension problem as contributory to the inconsistent and illogical verdicts, the inference one is tempted to draw from the appellate court’s judgment and the jury foreman’s confusion over the verdicts is that this particular jury did not possess the required language proficiency to be able to understand the proceedings in English. 8. Conclusion and further research Notwithstanding the requirement for jurors to have sufficient knowledge of the English language, empirical studies show that jury comprehension of the court proceedings cannot be taken for granted. As has been demonstrated by the study of Duff et al. (1992) and my own data, despite the ubiquity of interpreters in all English-medium trials, the Hong Kong courtroom is not fully bilingual for the jurors, nor for some of the other NES participants in court (E. Ng 2015, 2016a), because the interpreting service is actually provided with the primary interest of the defendant in mind. The need for the lone interpreter to shift from the consecutive mode to chochutage during the course of interpreting as the situation arises inevitably denies jurors without an adequate command of English full access to the trial proceedings. The need to make the courtroom fully bilingual, thus enabling jurors who are not conversant in English to access the interpreting services, is obvious. This would also eliminate discrimination against the right of citizens who do not have sufficient knowledge of English to be eligible for jury service. As demonstrated in emerging and ground-breaking studies which explore the feasibility of deaf people serving as jurors, deaf jurors assisted by a sign-language interpreter understood as much as the hearing jurors (Hale et al. 2017; Napier and McEwin 2015; Napier, Spencer, and Sabolcec 2013). These studies argue that denying deaf people this important civil duty amounts to unlawful discrimination. The same

146 Common law in an uncommon courtroom

could be said of the exclusion of citizens who do not possess sufficient knowledge of the English language from serving as jurors. Trial by jury is the backbone of the English legal system and is seen as a symbol of a democratic society. However, a trial before a jury without full access to the trial proceedings necessarily renders the system fundamentally flawed. As Ritter (2004: 214) argues, a trial by “a misinformed or under-informed jury is tantamount to a denial of the jury trial right”. For this reason, ensuring jurors’ access to the trial in its entirety is essential for them to make an informed decision about the defendant’s guilt or innocence. In the context of Hong Kong, adequately addressing and resolving the juror comprehension problem will help broaden the jury pool to improve its representativeness and randomness. At the same time, it will also help with the survival of trial by jury in the legal system of Hong Kong, a common-law jurisdiction which is now under the sovereignty of China, whose judicial system is radically different. The failure to address and resolve this problem adequately may threaten the very survival of the jury system and provide a cogent reason for its ultimate abolition. For the jury comprehension issue to be taken seriously and properly addressed in Hong Kong, further empirical research based on authentic courtroom data will prove invaluable and indispensable.4 The next chapter will examine how interpreters represent the voice of judges and counsel versus that of lay participants in the interpreted talk in Hong Kong courts and the rationale behind this.

4.  At the time of writing, the author of this book has been awarded a fund by the Hong Kong Research Grant Council (RGC) to carry out a 30-month project to further investigate the jury comprehension issue in Hong Kong.

Chapter 9

Who is speaking? Court interpreters’ use of first-person versus third-person interpreting

The previous chapter illustrated how the problem of jury comprehension is aggravated and particularly worrying in the Hong Kong courtroom, where most jurors do not have a native command of the English language. It explored how the participation status of these NNES jurors could be prejudiced when they do not have full access to the trial in its entirety because of the use of chuchotage in court, thus potentially compromising the delivery of justice. Besides, the differential social relationship between the judge and jurors renders many jurors too intimidated and unwilling to communicate with the judge and to flag up a comprehension problem (Gibbons 2017: 146). Building on the premise of power asymmetry between legal professionals and lay participants in court, this chapter explores how interpreters represent the voice of judges and counsel versus that of lay participants in the interpreted proceedings in Hong Kong courts. Combining quantitative and qualitative approaches, this chapter focuses on interpreters’ treatment of legal professionals’ first-person reference and its Chinese counterpart used by Chinese witnesses or defendants and it compares the interpreting styles adopted by the court interpreters. This chapter reviews and evaluates relevant literature on the use of first-person (or direct speech) and third-person interpreting (i.e. reported speech) and seeks to add a new dimension to the issue. It explores how the complicated notion of audience in the bilingual Hong Kong courtroom may have a bearing on the interpreter’s strategies in representing the voice of the speaker (see also E. Ng 2011, 2013c). 1. First-person interpreting as the norm It is a generally established principle and standard practice for interpreters to interpret in “the same grammatical person as the speaker of the source language” (NAJIT 2004), or in other words “[use] the first person as if the interpreter does not exist” (ITIA 2009). In Hong Kong, the Basic Guidelines for Part-time Interpreters (Judiciary 2003) emphasise the need for the interpreter to render the defendant’s

148 Common law in an uncommon courtroom

plea in direct speech [original emphasis]. Harris (1990: 116) even suggests that interpreting in the first person should be the first thing interpretation students are taught to be consistent about. Understandably, accuracy is more easily achieved in first-person interpreting (Judicial Council on Cultural Diversity 2017) without the interpreter having to change the utterance from direct speech to reported speech, and thus to “modify the speaker’s original words from a grammatical point of view” or to “to reflect the interpreter’s narrative point” (NAJIT 2004: 2–3). Besides, the use of third-person pronouns in reported speech “can be a common source of confusion” (NAJIT 2004: 2). This is true particularly in some languages, Cantonese being one of them, in which third-person pronouns, singular or plural, are gender-neutral. The use of these third-person pronouns arising from the use of reported speech can be very confusing to the message recipients.1 It is also argued that interpreters using direct speech can “display their professional neutrality by behaving as if they were not true participants of the interaction” (Angermeyer 2009: 6), although the findings of Cheung’s (2014) experimental study suggest that interpreters’ neutrality is not necessarily shaped by their use of reported or direct speech. In courtroom interpreting, there is a myth about the role of the court interpreter as a mere conduit or a translation machine. It is believed that the conception of the court interpreter as a conduit was first initiated out of the need to overcome the evidentiary problem of excluding hearsay evidence (Fenton 1997; Laster and Taylor 1994), because in the common-law tradition, evidence overheard or acquired second-hand is not admissible. That means when a case involves an interpreter, what the parties hear is technically second-hand information – that is, hearsay evidence. However, with the interpreter perceived as a machine, a nonhuman, the problem of hearsay evidence is solved. The use of direct speech arguably also has the benefit of obscuring the interpreter’s presence and creates the illusion of direct and dyadic communication between the interlocutors as if the interpreter were invisible. On the other hand, the use of indirect speech inevitably highlights the presence of the interpreter and may give rise to the problem of hearsay evidence. For 1.  I have an experience of working with a part-time Thai interpreter in relay in an indecent assault trial conducted in English, involving a Thai-speaking witness and a Cantonese-speaking defendant. The Thai interpreter worked between Thai and Cantonese while I worked between Cantonese and English. During the examination-in-chief of the Thai-speaking witness, the Thai interpreter’s Cantonese rendition of the witness’s testimony at one point was 佢話佢喺後邊 攬着佢 (s/he said s/he held her/him from behind). This made my job doubly difficult as I had to render her Cantonese interpretation into English by first deciphering these gender-neutral pronouns. As a result, I had to inform the court of the difficulty and to ask for her adherence to first-person interpreting.



Chapter 9.  Who is speaking? 149

example, when the interpreter renders a defendant’s guilty plea in indirect speech (i.e. “he says he’s guilty”), the record reflects the voice of the interpreter, not of the defendant, and the plea may thus be considered void and this has actually led to the nullification of a number of guilty pleas in the United States (NAJIT 2004). The use of first-person interpreting is thus a generally held principle among professional interpreters and scholars and is often used as a yardstick to differentiate professional interpreters from ad hoc interpreters (see Colin and Morris 1996; Gentile, Ozolins, and Vasilakakos 1996; González, Vásquez, and Mikkelson 1991, 2012; Harris 1990; Wadensjö 1998). 2. Third-person interpreting as a deviation from the norm Despite the prescription of first-person interpreting known to the profession, empirical studies over the past few decades demonstrate that interpreters, professionals or novices, working in both legal or non-legal settings depart from this norm and from time to time lapse into the use of third-person interpreting intentionally or unwittingly (e.g. Angermeyer 2009; Berk-Seligson 1990; Bot 2005; Cheung 2012; Dubslaff and Martinsen 2005; Kolb and Pöchhacker 2008; Leung and Gibbons 2008; E. Ng 2011, 2013b and 2013c; Wadensjö 1998). In a study of the US courtroom, Berk-Seligson (1990, 2002) finds that many interpreters avoid the subject pronouns “I” and “you”, particularly when the judge is declaring a sentence, by changing from active to passive voice, thus doing away with the subject pronoun, by adding “the judge” after the first-person pronoun “I” (“I, the judge”), or by simply referring to the judge in the third person. BerkSeligson (ibid.) sees the interpreter’s switch from first-person to third-person reference as a self-protective device against the wrath of the defendant, who might conclude that the interpreter is speaking for him/herself. Berk-Seligson (ibid.), however, does not elaborate on the interpreter’s treatment of the pronoun “you”, nor does she explain why this can be a problem for the interpreter if the judge is addressing the non-English-speaking (NES) defendant directly, using personal pronouns “I” and “you”, even if the interpreting is conducted in chuchotage. The pronoun “you” is likely to cause confusion for the NES defendant when the utterance is not addressed to the defendant, but to other English-speaking participants like counsel, rendering the defendant an auditor rather than an addressee. If the interpretation is conducted in chuchotage, the interpreter often has to change the pronoun “you” by specifying who “you” is, (see Angermeyer 2005) or else the defendant might take the “you” to refer to him/her. In her study of interpreter-mediated psychotherapeutic dialogue between patients and therapists, Bot (2005) finds that the three interpreters, all professionals

150 Common law in an uncommon courtroom

who had received formal training in interpreting and passed the examinations to be included in the Dutch Interpreter and Translation Centre’s roster of interpreters, frequently deviated from the “direct translation” style prescribed by the Centre, by either introducing a reporting verb at the beginning of a rendition, or by changing the personal pronoun “I” to “he” or “she”. While the study shows variations in the interpreters’ choices between “direct translation” (“I went to school”), “indirect translation” (“he went to school”), “direct representation” (“he says I went to school”) and “indirect representation” (“he says he went to school”), the most frequent form used by the interpreters is “direct representation”, which is “nearly always used for renditions of therapists’ turns” (Bot 2005: 250). The next most frequent form adopted is “direct translation”, predominantly used for the renditions of patients’ turns. Bot (2005: 244) suggests that interpreters’ deviation from direct translation style may originate from the fact that “they may feel the need to distance themselves from the words they translate and may have doubts regarding the primary speakers’ understanding of their role”. Kolb and Pöchhacker’s (2008) study of asylum appeal hearings illustrates that interpreters at times use the first-person plural (“we”) to refer to the adjudicator, thus positioning themselves in the institutional team, and at other times refer to the adjudicator in his official capacity. In fact, the vast majority of the interpreters in their study opt for what Bot (2005) refers to as “indirect translation”. While the subjects of Bot’s (2005) study are all professional interpreters with formal training in interpreting, the four subjects in Dubslaff and Martinsen’s (2005) study on interpreters’ use of direct versus indirect speech in simulated interpreter-mediated medical interviews are all untrained interpreters. Like Bot (2005), Dubslaff and Martinsen’s (2005) study also indicates that the interpreters shift from first to third-person reference either to distance themselves from the source speaker or to disclaim responsibility for the source-speaker’s utterance when there is an interactional problem. Leung and Gibbons (2008) go further to suggest that the interpreter’s shift from first to third-person reference has to do with his/her personal belief and ideology. They observe from a rape case in Hong Kong that when counsel expresses something which the interpreter does not agree with or finds offensive, she was observed to interpret in the third person by specifying who the principal was, drawing here on Goffman’s (1981) participation framework. However, it might not be easy for their claim about ideology to be substantiated, difficult as it is for any observer to tell if one’s action is a direct result of one’s belief or ideology. What can be inferred from Leung and Gibbon’s (2008) argument, nonetheless, is that the content of an utterance has a direct bearing on the interpreting style adopted, and that when the speaker expresses something perceived to be offensive, the interpreter would use reported speech to make it clear to the audience that she is



Chapter 9.  Who is speaking? 151

simply the animator, not the principal, of the source-speaker’s words. This can also be viewed as an attempt on the part of the interpreter to disclaim responsibility for and thus to distance her/himself from the utterances made by the source speaker. In a study of interpreter-mediated court proceedings in three Small Claims Courts in New York City to investigate how interpreters represent the voices of the source speakers, Angermeyer (2009) observes that all fifteen interpreters, mostly full-time professionals, employed by the court system after having passed an official proficiency examination, use third person from time to time to refer to the source speakers, though the frequencies of this third-person interpreting vary from interpreter to interpreter. A quantitative analysis of the data shows that interpreters overall use third-person reference more frequently when it is the voice of an English-speaking litigant or arbitrator that they are interpreting than when the source speaker is a speaker of the LOTE (language other than English). In terms of the direction of interpreting, interpreting from a LOTE into English is “nearly invariantly” (Angermeyer 2009: 11) done in the first person, whereas interpreting from English into a LOTE is mostly done in the third person. One of the reasons suggested by Angermeyer (2009: 11) is that the use of firstperson interpreting illustrates that interpreters “are less likely to explicitly indicate non-involvement with their fellow native LOTE speakers than with other participants who speak English or another language” because most interpreters are themselves immigrants and non-native speakers of English. This view is shared by Dubslaff and Martinsen (2005), who suggest that interpreters’ preference for direct address with speakers of their mother tongue may reflect their sympathy with their compatriots, in line with Anderson’s (2002) view that interpreters in general are more likely to identify with speakers of their dominant language or mother tongue than with speakers of their other language, i.e. their non-native language. This necessarily means that by representing the voice of an English speaker (litigant or arbitrator in this case) in the third person, the interpreter is emphasising his/her non-involvement in the utterances of the speaker – a widely adopted view of third-person reference as a distancing tactic in the interpreting studies mentioned above. Another reason suggested by Angermeyer (2009) to account for interpreters adopting different interpreting styles is that interpreters, when interpreting into English, are mindful of the professional norm that prescribes first-person interpreting. If interpreting is done in the third person, arbitrators, other interpreters or anyone concerned with upholding the institutional norms can notice their “non-normative behaviour” (Angermeyer 2009: 11); whereas when interpreting from English into the LOTE, the LOTE-speaking litigant is the exclusive audience, and such litigants may have no knowledge about the institutional norms and are thus less likely to object to the use of third-person reference. Angermeyer

152 Common law in an uncommon courtroom

(2009: 19) views these deictic shifts as a form of accommodation, citing Giles, Coupland, and Coupland (1991), and as addressee design following Bell’s model of audience design (Bell 1984). Other shifts, observes Angermeyer (2009), are made for pragmatic reasons. For example, where there are multiple English-speaking participants speaking at the same time, the interpreter finds it necessary to specify who the speaker is by using a reporting verb at the beginning of a direct translation, using what Bot (2005: 246) terms “direct representation”. For an interaction between the arbitrator and the English-speaking litigant, where the LOTE-speaking litigant is an auditor rather than the addressee, pronoun shifts are deemed necessary to avoid confusion. Angermeyer (2009: 17) finds these “addressee-related deictic shifts” relatively common in his data, even with interpreters who generally adhere to the first-person rule. The use of reported speech in chuchotage in court should thus be regarded as an exception to the rule. For the purpose of this study, analyses are focused on interpretation in the consecutive mode. In line with Angermeyer’s (2009) study, Cheung’s (2012: 83) study of court interpreters’ use of reported speech when interpreting from English to Cantonese in Hong Kong suggests that the use of reported speech has a function of minimising potential confusion “by identifying the interpreter, the different source-language speakers and multiple voices in an interpreted utterance”. 3. Data, methodology and quantitative results This study draws on all the nine recorded trials of my data, with sample transcripts taken from each trial for analysis, from which the following quantitative results have been generated. Table 9.1 shows the occurrences of first-person reference (i.e. I, me, my) identified in judges’ and counsel’s utterances (columns 3 and 4) and their renditions in Chinese (columns 5, 6, 7 and 8). Columns 1 and 2 show the cases and the part of the trial talk (e.g. plea-taking, verdict delivery or examination of witnesses) extracted for analysis. Since the data as a whole reveal that first-person reference in the Chinese utterances is always retained and reproduced in the English interpretation by all the interpreters, it is deemed unnecessary to quantify its occurrences, though examples will be drawn from the transcripts to illustrate this direct style of interpreting. Column 8 indicates the number of interpreters involved in this study. With the exception of Cases 1 and 2, which involve two interpreters, the transcripts extracted from the other seven cases for this study each involve one interpreter at work. The data of Case 1 involves two interpreters, one for the pleataking day, and the other for the trial day. The two interpreters in Case 2 are one

Chapter 9.  Who is speaking? 153



Table 9.1  First-person references uttered by judges and counsel in English and their renditions in Chinese Case no.

Data

Judge Counsel

Rendered as 1st person reference in Chinese

Omitted in Replaced No. of Chinese with 3rd per- interson reference preters in Chinese involved

1

– Plea-taking – Examination of PWs 1 and 2 – Verdict

24

18

     0 (0%)

18 (42.9%)

24 (57.1%)

2

2

Examination of PW1

 0

21

11 (52.4%)

  5 (23.8%)

  5 (23.8%)

2

3

Examination of PW1

 0

12

     0 (0%)

11 (91.7%)

   1 (8.3%)

1

4

Verdict

 6

 0

     0 (0%)

  2 (33.3%)

  4 (66.7%)

1

5

Examination of PW1

 0

36

     0 (0%)

   9 (25%)

  27 (75%)

1

6

Verdict

16

 0

     0 (0%)

    0 (0%)

16 (100%)

1

7

Examination of PW1

 0

10

     0 (0%)

   5 (50%)

   5 (50%)

1

8

Examination of PW1

58

     0 (0%)

38 (65.5%)

20 (34.5%)

1

9

Examination of D

 8

     0 (0%)

  7 (87.5%)

  1 (12.5%)

1

trainee interpreter and a more experienced interpreter, who acts as supervisor and is found to provide suggested interpretation or to correct the trainee interpreter in a whisper from time to time. As has been pointed out above, this chapter focuses on interpreters’ rendition of legal professionals’ first-person reference into Chinese in the consecutive mode. Chuchotage is thus not included in the analysis, as the use of reported speech in chuchotage is inevitable out of a pragmatic consideration, as rightly noted by Angermeyer (2009). Language-wise, with the exception of the interpreter in Case 8 (who works from Mandarin into English and vice versa), the other interpreters in the data speak Cantonese and English, and a total of 11 interpreters are included in this analysis. Occurrences of first-person reference identified in judges’/counsel’s utterances immediately followed by interpreters’ turns were counted. First-person references used in interactions between legal professionals (e.g. counsel addressing

154 Common law in an uncommon courtroom

the judge or vice versa) rather than in legal-lay interactions, and not interpreted in open court, were ignored. Interrupted utterances containing such first-person references were also ignored, as they could not be paired up with a corresponding interpreter turn. Interrupted utterances occur mostly in Case 5, the implications of which for the participation status of court actors were explored in detail in Chapter 6. Repetitions containing the same first-person reference (e.g. “I, I, I put it to you”) were also ignored and counted as one occurrence, as the reproduction of SL repetitions has more to do with the interpreter’s treatment of the speech style of the SL speaker rather than with the reproduction of the first-person reference per se. 4. Findings and analysis The quantitative results as shown in Table  9.1 reveal that in all cases, with the exception of Case 2 (which will be examined in more detail later in this section), first-person references uttered by judges and counsel are not reproduced in the Chinese interpretation. The first-person reference is either changed into thirdperson reference to the SL speaker’s official capacity or omitted altogether in the Chinese interpretation. On the other hand, the Chinese first-person pronoun is always rendered into English in the first person, as is evidenced by the examples below. This, from my observations of the data and from my own experience of interpreting in court, has become a norm for court interpreters in Hong Kong. The following sub-sections illustrate the strategies adopted with examples extracted from the data. 4.1 Substitution of judges’ and counsel’s first-person reference with thirdperson reference in Chinese interpretation Example (9.1) is extracted from Case 1, in which the defendant, a primary school teacher charged with shoplifting, is appearing in court in person for the first time. The magistrate is advising her to retain the services of the Duty Lawyer Scheme. Note that the interpreter has rendered the first-person pronoun “I” uttered by the magistrate in turns 1 and 9 in the third person, referring to him in his official capacity, faat3gun1 (法官 – the judge) in turns 2 and 12, whereas the first-person pronouns ngo5 (我 – I) in turns 3, 7 and 13 has all been rendered into English as “I” in turns 4, 8 and 14.

Chapter 9.  Who is speaking? 155

Example 9.1 Plea-taking, Case 1, Theft Turn Speaker SL utterance / Interpretation

English gloss

1

J

Er well, you are eligible for the Duty Lawyer Scheme. And I would as you are pleading not guilty, er I would uh advise you uh to retain the services for the trial.

2

I

其實你呢係有資格可以用當值律師嘅服務 㗎，既然你宜家不認罪吓，法官就話你最好 都係呢，係審訊嘅時候，聘請當值律師代表 你。

In fact, you are eligible for the duty lawyer service. Since you have pleaded not guilty, the judge said it’s better for you to hire a duty lawyer to represent you at the trial.

3

D

Er我自己搵律師。

Uh I’ll get a lawyer myself.

4

I

I’ll get a lawyer myself.

 

5

J

You you can you’ve got the financial (.) means to do that?

 

6

I

你自己::有錢可以請倒私人律師，係咪呀？

You yourself have the money to retain a private lawyer. Is that right?

7

D

(2)我自己諗辦法。

(2) I’ll work it out myself.

8

I

I’ll think of a way to do it.

 

9

J

Well, I said the other option is em duty lawyer scheme, which will cost you…

 

10

I

Um—

 

11

J

… E::r a maximum four hundred dollars.

 

12

I

正如呢法官所講啦，其實你仲有另一個選擇 嘅，就係去搵當值律師。當值律師呢最多都 係要俾四百蚊㗎啫。

As the judge said, as a matter of fact, you have another choice, that is, to seek help from a duty lawyer. A duty lawyer will cost you a maximum of only four hundred dollars.

13

D

Er我自己諗辦法。

Uh I’ll work it out myself.

14

I

I’ll think of the way myself.

 

156 Common law in an uncommon courtroom

Similarly, the judges’ first-person “I” in the verdict delivery in both Examples (9.2) and (9.3) has been rendered as “the judge” (法官) in the Chinese interpretation. Example 9.2 Delivery of verdict, Case 4, Blackmail Turn Speaker SL utterance / Interpretation

English gloss

1

J

(2) I do take into account, however,   this is the defendant’s first criminal offence, and it will be his first time in prison.

2

I

咁但係呢法官都會考慮到呢，今次 But the judge will take into account that 係被告第一次犯事，同埋呢將會係 this is the first time the defendant has committed an offence and will be his 第一次呢入獄㗎。 first time in prison.

Example 9.3 Delivery of verdict, Case 6, Arson with intent Turn Speaker SL utterance / Interpretation

English gloss

1

J

I turn now to the (.) admissibility of the confessions in question

 

2

I

宜家呢，法官呢，就會講番呢， 係er, er你嗰個嘅招認嘅可採納性 嗰方面。

Now, the judge will turn to er, er the admissibility of your confession.

Examples (9.4), (9.5), (9.6) and (9.7), cited from Cases 5, 8, 7 and 9 respectively, serve to illustrate how the interpreters represent counsel’s voices in the Chinese interpretation. Example 9.4 Cross-examination of PW1, Case 5, Trafficking in dangerous drugs Turn Speaker SL utterance / Interpretation

English gloss

1

DC

So I was right when I put to you that   he was present in the premises of the defendant?

2

I

嗱，咁就辯方大律師頭先指出話 呢個名偵緝警長呢當時呢就係個 er單位裡面有在場，向你指出呢個 事情嘅時候，咁辯方大律師講法 咪啱囉？

So when the defence counsel put to you just now that this detective sergeant was at the premises at that time, so in pointing this fact out to you, the defence counsel was right, wasn’t he?

3

W

我唔明個意思。

I don’t understand the meaning.

4

I

I don’t understand what you mean.

 

Chapter 9.  Who is speaking? 157

Example 9.5 Cross-examination of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation

English gloss

1

DC

I suggest you are prepared to tell lies to this court until you are forced to admit the truth.

2

I

律師向你指出，看你同意還是不同 The lawyer is suggesting to you, see if er不同意的，就是說，你隨時都願 you agree or dis-, uh, disagree, that is, you are prepared to tell lies in court 意在法庭上說謊，對嗎？ anytime, is that right?

3

W

說(.)什麼？

Tell (.) what?

4

I

說謊，他說你(.)在說謊。

Tell lies, he said you (.) are telling lies.

5

W

說謊?

Telling lies?

 

6

I

嗯。

Mm.

7

W

我沒有說謊呀。

I’m not telling lies.

8

I

No, I am not lying.

 

Example 9.6 Cross-examination of D, Case 9, Rape Turn Speaker SL utterance / Interpretation

English gloss

1

PC

(3) Alright. Now, you are-, I put it to you that you are making up (.) this story about Miss M inviting you up to the bed.

 

2

I

律師向你指出呢，根本你講話呢， 阿M小姐呢，係邀請你上佢張床 呢，你根本喺度作緊大er古仔嚟 講，同唔同意呀？

The lawyer puts it to you that what you said about Miss M inviting you to her bed is a story made up by you. Do you agree?

3

D

唔同意。

Disagree.

Example 9.7 Examination-in-chief of PW1, Case 7, Wounding with intent Turn Speaker SL utterance / Interpretation

English gloss

1

PC

Right. Now, I would like you to er (2)   cast your mind back (.) to er (2) to the er (.) 5th day of April, 2004.

2

I

咁宜家控方呢，就想你記番呢， 喺零四年四月五號嗰日發生嘅一 啲事嘅。

Now the prosecution wants you to recall the events that happened on the 5th of April 2004.

In the first three examples, the self-reference “I” uttered by both counsel has been rendered in the third person as “the defence counsel” and “the counsel/lawyer” in the Chinese (Mandarin in Case 8 and Cantonese in the other cases) interpretation,

158 Common law in an uncommon courtroom

whereas the witnesses’ first-person pronoun 我ngo5 (I) has all been rendered as “I” in the English interpretation. In Example (9.7), the prosecution counsel’s “I” becomes an impersonalised reference – “the prosecution” (控方) in the Cantonese interpretation. 4.2 Ellipsis/omission of judges’/counsel’s first-person reference in Chinese interpretation Another common strategy as observed from the data is for the interpreter to ellipt or omit the first-person reference included in judges’ or counsel’s utterances in the Chinese interpretation. For differentiation purposes, “ellipsis”, taken from Crystal (2003: 159), means that in “a SENTENCE where, for reasons of economy, emphasis or style, a part of the STRUCUTURE has been omitted, which is recoverable from a scrutiny of the CONTEXT” (original emphases); whereas “to omit” means “to leave out or leave unmentioned” (Omit, Merriam-Webster’s Online Dictionary 2012) It can thus be concluded that information ellipted is usually recoverable from the context while an omission usually results in a loss of information and may produce contextual ambiguity. In both Examples (9.8) and (9.9), the interpreters are observed to have ellipted/omitted the prosecution counsel’s first-person pronoun “I” in the Cantonese interpretation to avoid the need to put in a first-person pronoun (or third-person as is general practice), leaving the subject in both cases unmentioned (indicated with “ɸ” in the English gloss column). Example 9.8 Cross-examination of D, Case 8, Murder Turn Speaker SL utterance / Interpretation

English gloss

1

PC

Sir, I just asked you if it was accurate,   and you said “yes”.

2

I

咁頭先咪就係問你嗰幅圖嗰幅草 圖呢，係咪正uh準確，你又話係 嘅？

Just now ɸ asked you if the sketch was cor-, uh accurate, didn’t you say it was?

Chapter 9.  Who is speaking? 159



Example 9.9 Examination-in-chief of PW1, Case 3, Attempting to distribute an infringing copy of a copyright work Turn Speaker SL utterance / Interpretation

English gloss

1

PC

Before eleven twenty-five, (.) did the defendant (.) make any phone call, according to your knowledge?

 

2

I

十點-，十一點廿五分之前呀，被 告有冇打過電話呢？嗱如果你知 嘅，講知，唔知就話唔知吓。

Before ten-, eleven twenty five, did the defendant make any phone call? Now, if you have any knowledge about that, tell (us); if you don’t know, just say so.

3

W

當時我唔喺間房度， [所以唔係好 清楚。

At that time I was not in the room, and so I had no idea.

4

I

[I was not (.) in the room, so I (.) did   not know. I don’t know.

5

PC

I will ask the other officer then.

 

6

I

係，咁問第二啲人啦。

Yes, in that case, ɸ ask other people.

At other times the interpreter is found to omit the entire clause that contains the SL speaker’s first-person reference altogether as in Example (9.10), thus dispensing the need to deal with it in the Chinese interpretation. The impact of these omissions or ellipses will be discussed later in this chapter in Section 8.3. Example 9.10 Cross-examination of PW1, Case 8, Murder Turn Speaker SL utterance / Interpretation

English gloss

1

DC

Well, , what I suggest   is that er you had had a, a number of verbal scolding and arguments with the tenant. Is that right?

2

I

其實你跟這個租客互相大家口角， ɸ In fact you and this tenant had a verbal argument and scolded each other. 互相對罵，對嗎？ Is that right?

4.3 A shift from first-person to third-person interpreting The above examples show that interpreters in general adopt two distinct interpreting styles when interpreting the first-person reference of witnesses/defendants and that of legal professionals: while the Chinese first-person pronoun “ngo5” (我) uttered by witnesses/defendants is invariably rendered into English as “I”, the English first-person pronoun “I” produced by legal professionals is hardly ever rendered into “ngo5” (我) in the Chinese interpretation, but is either substituted

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with a third-person reference (i.e. by using reported speech) or ellipted/omitted altogether in the Chinese interpretation. Instances of the use of first-person interpreting for the legal professionals’ utterances as shown in Table 9.1 are found only in Case 2. The following is an example extracted from the cross-examination of PW1. Example 9.11 Cross-examination of PW1, Case 2, Making a false declaration to an immigration officer Turn Speaker SL utterance / Interpretation

English gloss

1

DC

Well, I suggest that, at some point, the defendant was alone in the interview room.

2

I1

Now I tell you this: for some time, the 咁我就話俾係聽，喺一啲時間裏 面，哩個咁嘅被告其實係被獨自留 defendant was left alone in the interview room. 咗喺會見室裏面。

3

W

我唔同意。

I disagree.

4

I1

I Disagree.

 

5

DC

And I further suggest that, you had entered the interview room to speak with her.

 

6

I2

律師向你指出呢你有 The lawyer suggests to you that you had entered the 入過會議室同佢傾偈= meeting room to talk to her=

7

I1

=好喇，咁律師亦都向你指出呀， =OK. So the lawyer also suggested to 你係有入過去哩個會見室呢，去同 you that you had entered the interview room to talk to her. Is that right? 佢(.)傾計㗎，係咪?

8

W

Er 我入過去會見室向佢宣讀佢嘅 權利。

Er I did enter the interview room to read out her rights to her.

9

I2

I get inside the interview room, and declare (.) her rights.

 

10

DC

O, I suggest that you DID NOT declare to her her rights.

 

11

I1

律師向你指出，你並冇宣讀佢嘅 權利。

The lawyer puts it to you that you didn’t read out her rights.

 

As noted above, Case 2 involves two interpreters at work, a trainee interpreter and his supervisor (represented as I1 and I2 in the transcript respectively). In the above example, I1, a new recruit who has probably had instilled into him the principle of interpreting “in the same grammatical person” as the speaker by using the same pronouns and verbs (NAJIT 2004), starts by adopting a normative



Chapter 9.  Who is speaking? 161

first-person interpreting style not just for the witness, but also for the examining counsel. After some turns, however, I2 decides to step in to whisper her suggested interpretation, as a result of which the defence counsel’s first-person reference “I” becomes a third-person reference as “the lawyer” (turn  6). From this point, I1 shifts to represent counsel’s voice in the third person. This finding seems to suggest that a third-person interpreting style for legal professional’s utterances could be an “inherited” practice in the Hong Kong courtroom. 5. Findings and disassociation theory As shown in the above examples, the shifts from first-person interpreting to third-person interpreting seem to be uniform, in the sense that they occur only in one direction – a phenomenon which is not adequately explained by theories advanced in existing literature. For example, the majority of the research on the use of reported speech in interpreting suggests its use as the interpreter’s distancing strategy to disclaim responsibility for what is said by the speaker, especially remarks that may offend the addressee – what I call the “disassociation” theory. However, the above-cited examples show little correlation between the content of the utterances and the court interpreter’s style of interpreting. In Example (9.1), for instance, the magistrate is not delivering a verdict or passing a sentence, but is merely advising the defendant on her right to legal representation, so it does not make much sense to presume that the interpreter particularly wants to be disassociated from the magistrate’s utterances by opting for third-person interpreting. What the magistrate is saying is certainly not something offensive or face-threatening to the defendant, or the interpreter for that matter. On the other hand, the defendant appears to be rather insistent in her refusal of the magistrate’s suggestion. Following my disassociation theory, one would expect to see the interpreter adopting a first-person interpreting style for utterances made by the magistrate and a third-person interpreting style for utterances of the defendant, but this does not happen here. In Example (9.4), the disassociation theory may explain why the interpreter chooses to interpret counsel’s turn in the third person, i.e. to disclaim responsibility for his suggestion, with which the addressee is likely to disagree. On the other hand, one may wonder why the interpreter does not wish to disclaim responsibility for the witness’s failure to understand counsel’s question, as she chooses to assume the witness’s voice by interpreting her response in the first person. Thus the disassociation theory can only explain the interpreter’s behaviour in part, not in full.

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6. Power asymmetry in the adversarial courtroom and hypotheses My findings show that the style of interpreting has little to do with what is said by the speaker, but more to do with who the speaker is. I thus argue that the strategies adopted by interpreters in representing the voice of the speaker have to do with the power asymmetry in the courtroom and hence the interpreter’s response to it as audience design (Bell 1984). In the adversarial common-law courtroom, the imbalance of power between legal professionals and lay participants is palpable, as discussed in Chapter 4. It is my hypothesis that there is a sense of uneasiness on the part of interpreters in assuming the voice of powerful participants, as reflected in their overt effort to avoid representing their voices in the first person, and that interpreters’ uneasiness may have stemmed from their consciousness of this power asymmetry in the courtroom, as well as of the complicated notion of audience in the Hong Kong courtroom. 7. Questionnaire results and analysis In order to test my hypothesis, an online questionnaire was administered with both serving and retired full-time court interpreters. The questionnaire consists of 15 multiple-choice questions. The answers to some of the questions also include “Other (Please specify)” as an open option which allows respondents to provide their own answers in a text box (see Appendix 5). The link was sent to 53 full-time court interpreters, including two retired interpreters, who were at the grade of Senior Court Interpreter before their retirement. A total of 25 questionnaires were filled and collected at the conclusion of a two-month surveying period. All the respondents have over 3 years of court interpreting experience and over 80% of them have more than 10 years of experience in court interpreting. 7.1 Different interpreting styles for different speakers The results of the survey as a whole confirm the general practice of two distinct interpreting styles adopted for lay participants and legal professionals, respectively, in the courts of Hong Kong, which conforms to the findings arising from the court data. The majority (84%) of the respondents admitted that they would adopt firstperson interpreting for witnesses/defendants but not for the legal professionals, regardless of their years of experience in court interpreting and whether or not they have had any training in first-person interpreting.

Chapter 9.  Who is speaking? 163



7.2 Content of utterances and interpreting styles When asked if their choice between first-person and third-person interpreting had anything to do with the content of the utterance (Question 13), eight (32%) out of the 25 subjects chose “Yes” while 17 (68%) chose “No” as their answers. Those who had responded affirmatively to this question were asked to explain in a text box how the content of the utterances would affect their interpreting styles. Of the eight explanations provided, half of them were, however, irrelevant or nonresponsive, in that the respondents merely reiterated what they did like “when I interpret witnesses’ testimony, I always use ‘I’ but when I interpret counsel’s questions, I always use ‘counsel put to you that…’ ” without explaining why they did that. These explanations seem to confirm the two different interpreting styles for lay participants and legal professionals and my suggestion that the interpreting styles adopted have more to do with who the speaker is, not what the speaker has said. These respondents should probably have picked “No” as their answer. Of the other four who gave relevant explanations, three did, however, suggest the use of third-person interpreting as a self-protective device against the anger of the defendant or witness when counsel are putting questions to witnesses or judges are delivering their verdicts, which may embarrass, offend or “provoke the message recipients and evoke negative feelings”. It could be argued, however, that the generally held view of the use of reported speech as a protective device based on what has been said by the SL speaker is supported only by a minority of the respondents and that the majority of them refuted the correlation between the content of an utterance and the interpreting style adopted. 7.3 Rationale behind the styles of interpreting Subjects who had confirmed the adoption of different interpreting styles for legal professionals and for lay participants were asked in Question 15 (cited below) to state their reasons by choosing from four answers suggested in the light of the findings based on my court data and conclusions from previous studies, and/or by providing their own reasons in the open option. Multiple answers were allowed. Q.15: If your answer to Question 14 is “Yes”, please state the reason(s) why (You may choose more than one answer).

○ I feel uneasy assuming the voice of counsel or judges because they are on a higher hierarchical level. ○ I don’t want to give the impression to all those in court that I am pretending to be the counsel and the judge by assuming their voice.

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○ I don’t want the witnesses/defendants to conclude that I am speaking for myself if the interpretation is done in the first person. ○ I just follow what other colleagues (e.g. the interpreter I understudied) are doing. ○ Other (Please specify) Responses to the question seem to suggest that the subjects’ choice of interpreting style is affected by a mixture of factors, some of which are, however, not supported by the court data. 7.3.1 Psychological factor As noted above, it is my hypothesis that the adoption of a third-person interpreting style for utterances produced by legal professionals stems from interpreters’ reluctance or unease in assuming the voice of the powerful participants in court. The first two options accentuate the hierarchical power enjoyed by legal professionals, the subjects’ consciousness of this power asymmetry in the courtroom and thus their uneasiness in assuming the voice of the powerful participants, for fear that those unaware of the professional norm of first-person interpreting may regard them as pretending to be the powerful participants. Together these two options were chosen by 15 subjects, representing 60% of the total number of respondents. This suggests that there does exist a psychological element in the subjects’ choice of interpreting styles, though there is no knowing whether this percentage represents a true picture of the rationale of all the respondents behind their choice of interpreting styles, given that the subjects might find it hard to bring themselves to admit a deviation from their code of conduct for psychological reasons. The interpreter’s uneasiness in assuming the voice of the powerful participants has to be understood in the special context of the Hong Kong courtroom. As was noted in Chapter 3 and throughout this study, in Hong Kong, unlike in many other jurisdictions, the defendant and witnesses requiring interpreting services are not the exclusive audience of the Cantonese interpretation, which is also accessible to the majority of the participants in the courtroom, including Cantonese monolinguals such as audience in the public gallery and English/ Cantonese bilinguals like bilingual legal professionals. In the course of interpreting, the interpreter is conscious of the presence of these third-person audience roles as “auditors” or “overhearers”. In other words, an interpreter’s shift from a first-person to a third-person interpreting style can be regarded as their response to these audience roles, as they may consider it impertinent to assume the voice of the legal professionals, while wishing to show their respect in order to win approval of the third-person audience roles (Bell 1984). This may be done by referring to these powerful participants in their official capacities, just as speakers



Chapter 9.  Who is speaking? 165

do when they accommodate their speech style to their audience (Bell 1984; Giles and Smith 1979). 7.3.2 Pragmatic consideration If the first two options are understood as interpreters’ accommodation of interpreting styles to the third-person audience roles (i.e. auditors and overhearers) in the courtroom, the middle option, which suggests a pragmatic consideration on the part of the respondents, can be regarded as interpreters’ response to the second-person audience role – the “addressee” – in that it takes into account the lay participants’ lack of understanding of the role of the interpreter or of the professional norm of first-person interpreting. This option was chosen by 17 respondents, representing 68% of the total number of respondents. 7.3.3 Inherited practice The fourth option does not represent an informed decision on the part of the interpreter, but a passive or inherited one, in that the interpreter just follows what other interpreters are doing in court. Six respondents marked this option, representing 24% of the total number of subjects. This is supported by the court data as evidenced by the trainee interpreter’s shift from the normative first-person interpreting style for all speakers to a deviant third-person interpreting style for utterances produced by the legal professionals (at the suggestion of his supervisor) as illustrated in Example (9.11). The supervising interpreter’s “correction” of the trainee interpreter’s style of interpreting may have stemmed from her perception of the power differentials between lay and professional participants in the judicial proceedings; arguably, the trainee interpreter, being new and thus less sensitive to the courtroom hierarchy of power relations, is more ready to assume the voice of all the speakers by using direct speech, which the supervising interpreter must have deemed improper and demonstrating a want of respect for the powerful participants. 7.3.4 A self-protective device The last option allows respondents to provide their own answers in a text box. Three subjects suggest in this option that the use of reported speech for interpreting counsel’s/judges’ utterances is to disclaim responsibility for offensive remarks – the disassociation theory. For example, one respondent stated, “I do that for self-protection. I take care to distance myself from contents like ‘律師向你 指出 (counsel suggests/puts it to you)…’ and ‘法官裁定 (the judge finds)’, which may provoke the message recipients and evoke negative feelings”. This discriminatory (content-based) use of interpreting styles is, however, not supported by the court data, which demonstrate a consistent use of reported speech for counsel/

166 Common law in an uncommon courtroom

judges whether they are challenging the witness/defendant or are simply giving them procedural advice. In other words, as noted above, the court data show the interpreting styles adopted depend on who the speaker is (or the audience are), not what is said.2 Sections 8 and 9 below will evaluate the impact of this third-person interpreting style and the ellipsis/omission strategy on the role of the interpreter and on the communicative act itself. 8. Impact of third-person interpreting 8.1 Impact on the participant role, invisibility and neutrality of the interpreter Angermeyer (2009) suggests that when interpreting in the first person, the interpreter speaks as the person whose speech s/he is interpreting, and about him/ her when reported speech is adopted. With reference to Goffman’s participation framework, Angermeyer (2009: 5) suggests that by interpreting in the first person, the interpreter assumes the role as animator of the interpreted utterance, rather than as author or principal. However, he points out at the same time that other participants may not always recognise this interpreter role and may hold the interpreter responsible for the interpreted talk. He argues that the use of reported speech may therefore be seen as an implicit stance taken by the interpreter to avoid alignment with the SL speaker (ibid.). Wadensjö (1998: 273) too suggests that the use of reported speech has the effect of distinguishing the voice of the interpreter from the SL speaker’s voice, or what she refers to as the “currently speaking self and the meaning other”. In a similar fashion, Leung and Gibbons (2008: 179) argue that the use of reported speech by the interpreter is to emphasise that s/he is not the principal of the interpreted utterance. As discussed earlier in this chapter, interpreting in the third person by using reported speech brings in the interpreter’s own voice, making him/her a participant in his/her own right. As suggested by Wadensjö (1998), by referring to the speaker in the third person, the interpreter reserves the first-person pronoun “I” for him/herself. It could thus be argued that the use of reported speech would highlight the presence of the interpreter, though the invisibility of the court interpreter has been challenged and shown as more of a myth than a reality by empirical studies, even without the use of reported speech. As Jacobsen (2002: 32) puts it, “the pretence of the court interpreter’s invisibility cannot be sustained anyway”. 2.  For a detailed analysis of the survey results, see E. Ng (2011).



Chapter 9.  Who is speaking? 167

However, the variation in interpreting style might problematise the interpreter’s neutrality and impartiality. As suggested by Angermeyer (2009), interpreting the SL speech in the third person may be seen as an attempt on the part of the interpreter to avoid alignment with the SL speaker. It could thus be argued that by interpreting lay participants’ speech in the first person and utterances produced by legal professionals in the third person, the interpreter seems to align him/herself with the powerless participants but to distance or alienate him/herself from the powerful participants, inevitably compromising the interpreter’s impartiality. 8.2 Impact on illocutionary force of the speech act It is generally agreed that interpreting in the third person has a distancing effect (see Mason 1999: 152; Morris 1995: 35). In the courtroom, this distancing effect inevitably impacts on a speech act. Cheung (2012: 76–77) argues, following Clayman (2007: 242–243), that reported speech could be used by court interpreters as a strategic device to neutralise and legitimise aggressive and challenging questions in the adversarial courtroom. At the same time, he suggests that the use of reported speech by court interpreters has the pragmatic function of enhancing the illocutionary force of the interpreted utterances by “alerting listeners to the gravity of what is to come” (Cheung 2012: 86). One may thus argue that the use of reported speech has an impact on the illocutionary force of the speech act, by either reinforcing or neutralising it. In Examples (9.5) and (9.6) above, the defence and the prosecution counsel are respectively accusing the witness and the defendant of lying. It could be argued that the interpreters’ use of reported speech on the one hand indicates to the addressees that the accusations come from a party with authority and thus deserve their serious attention; on the other hand, it has arguably the function of “neutralising” the accusation and making it less confrontational or face-threatening to both the interpreter and the addressee of the message. 8.3 Ambiguity associated with the omission of first-person reference in Chinese interpretation As noted above, findings of the court data reveal that in order to shun legal professionals’ first-person reference in the Chinese interpretation, the interpreters, in addition to interpreting legal professionals’ utterances in the third person by using reported speech, are at other times found to omit judges’ or counsel’s first-person reference in the Chinese interpretation. This is done by omitting either the SL speaker’s first-person reference such as “I” in the Chinese interpretation, leaving the subject “I” unmentioned, as in Examples  (9.8) and 9.9, or the entire clause containing such a reference, as in Example (9.10).

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It must be noted that ellipsis is a common linguistic device in Chinese where contextually understood information in a construction can be ellipted. In Example (9.8), since it is understood from the preceding context that it is the prosecution counsel who performed the act of “asking” about the sketch earlier on, the ellipsis of the subject “I” in the Cantonese interpretation presumably has little impact on the listeners’ comprehension of the message. In Example (9.9), however, the omission of the first-person subject “I” in the Cantonese interpretation may give rise to the problem of ambiguity; this is because in the interpretation in turn 8, the SL speaker’s first-person subject “I” as the agent of “asking” is omitted, and this may be taken as an imperative for the addressee to perform the action of “asking”. In Example (9.10), the omission of the entire clause “what I suggest” has effectively turned a suggestion or hypothesis into a declarative statement. 9. Conclusion In this chapter, the court data have demonstrated that interpreting from English in the third person and into English in the first person is a practice commonly adopted by interpreters in the Hong Kong courtroom. The results of the survey conducted with court interpreters largely corroborate this finding and lend support to my hypothesis that the practice does not have much to do with the content of the SL utterance. The use of reported speech by replacing the SL speaker’s first-person reference, such as “I” with his/her official capacity as “counsel” or “judge”, or the ellipsis/omission of it in the Chinese interpretation, demonstrates an effort on the part of the interpreter to shun the voices of the powerful participants. As the use of reported speech is generally regarded as unprofessional and a deviation from the norm of first-person interpreting, the ellipsis/omission strategy can be seen as an effort or an informed decision on the part of the interpreter to compromise the need to comply with the norm and to avoid assuming the voice of the SL speaker. In the case of an ellipsis, where the omitted first-person reference can be recovered from the context and there is no possibility of ambiguity, this strategy may be regarded as the interpreter’s happy medium, which will render her/him beyond criticism. However, where an omission of the first-person reference is likely to result in ambiguity or a loss of information, as in Example (9.9), caution must be exercised in adopting this strategy. The results of the survey suggest a sense of unease on the part of the interpreter in assuming the voice of legal professionals as powerful participants, but not so that of witnesses and defendants as powerless participants. It can thus be argued that the deviant third-person interpreting style is the interpreter’s response



Chapter 9.  Who is speaking? 169

to the power asymmetry in the courtroom. The results of the survey also suggest the shift in the interpreting style as the interpreters’ accommodation to their audience; lay participants are less informed about institutional norms and may mistakenly imagine the interpreter to be speaking for him/herself. As suggested by Angermeyer (2009: 19), court interpreters working from and into English “find themselves in a situation where they have to translate for two very different audiences and negotiate two different sets of expectations of their behavior and language use”. In the case of the Hong Kong courtroom, as noted above, lay participants are often not the exclusive audience of interpretation out of English, i.e. Cantonese, which is accessible also to the majority of the audience in the public gallery as well as bilingual court personnel. The interpreter thus has a much more varied audience for the Cantonese interpretation. This may explain the interpreter’s unease in assuming the voice of the powerful participants. In other words, in shunning the voice of legal professionals by resorting to the use of reported speech or by omitting their first-person reference in the Chinese interpretation, the interpreter is not merely accommodating to his/her addressee (witness/defendant), but also to third-person audience roles. Bell (1984: 161) notes that “all third persons, whether absent referees or present auditors and overhearers, influence a speaker’s style design which in a way echoes the effect they would have as second person addressees”. The efforts to shun the voice of legal professionals are, however, not without a cost. First of all, the use of reported speech in interpreting, apart from being regarded as a deviation from the norm, would compromise the interpreter’s invisibility and impartiality and might mitigate the force of a speech act. Secondly, the omission of the SL speaker’s first-person reference could produce ambiguity due to a loss of information in the Chinese interpretation. The concluding chapter will revisit the common-law Hong Kong courtroom and summarise its uncommonness and uniqueness. It will re-examine the issue of court interpretation in this setting, discuss the pedagogical implications of this study and make recommendations for improvement and for further research, with the ultimate aim to achieve better administration of justice.

Chapter 10

Conclusions

This concluding chapter presents a summary of the findings of this study and discusses their pedagogical implications and contributions to existing literature on court interpreting, forensic linguistics and translation studies. This chapter also makes recommendations for best practice in the provision of court interpreting and for further research. 1. Summary of findings This book has presented the bilingual Hong Kong courtroom as an uncommon bilingual setting, which differs in many ways from ordinary bilingual court settings. 1.1 English trials in a Chinese dominant society and modes of interpreting in court The unique nature of the bilingual Hong Kong courtroom stems from the use of English as the court language in a predominantly Cantonese-speaking society, due to the colonial background of Hong Kong. This has made the presence of a court interpreter in an English-language trial a sine qua non, as lay litigants appearing in court as defendants or witnesses mostly choose to testify in Cantonese, assisted by the court interpreter. This results in the use of consecutive interpreting as the default mode for interaction between lay participants and legal professionals, supplemented by the chuchotage mode at various stages of the trial. In an ordinary bilingual courtroom, however, where interpreting is provided to cater for the need of a minority language speaker (the defendant, for example), chuchotage is the default mode and would be provided for the defendant for the better part of the trial. 1.2 Limitations of chuchotage in the Hong Kong courtroom The use of chuchotage in the Hong Kong courtroom has, however, proved inadequate or problematic, as was demonstrated in Chapters  6, 7 and 8, where dialogues between the judge and counsel, monologues addressed at the jury, or the

172 Common law in an uncommon courtroom

examination of witnesses testifying in English are interpreted in chuchotage for the benefit of the Cantonese-speaking defendants or sometimes omitted in interpretation. This inevitably impacts on the participation status of non-English-speaking (NES) or non-native English-speaking (NNES) participants in court, including possibly members of the jury, who are mostly local Chinese without a native command of the English language. As was demonstrated in Chapter 8, the ability of Chinese jurors to hear a trial conducted in English cannot be taken for granted, as there is evidence suggesting that most jurors do not possess sufficient knowledge of the English language to be able to hear a trial conducted in English without being able to benefit from the interpretation provided in court. As judges of facts, jurors are expected to return a true verdict at the end of a trial based on what they have heard in evidence. If they are not able to access the trial in its entirety, what implications does this have for the administration of justice? 1.3 Complexity of audienceship Unlike the interpreters in the early colonial days, interpreters in the present-day Hong Kong courtroom often have to work with court actors, especially counsel and judges, who share their bilingual knowledge of both Cantonese and English. This, coupled with the use of consecutive interpreting throughout much of the trial, has made the notion of audienceship in the bilingual Hong Kong courtroom more complicated. In a courtroom where the interpreter is the only bilingual, s/he has two distinct audiences, one to do with interpretation into the court language, and the other out of it. In the Hong Kong courtroom, the lay participants requiring Cantonese interpretation out of the court language (i.e. English) are usually not the exclusive audience of the Cantonese interpretation. This interpretation is accessible also to the majority of the court actors, including Cantonese monolinguals such as the audience in the public gallery and bilingual counsel and judges, who may take on additional audience roles as overhearers of the interpretation into Cantonese. In a similar fashion, interpretation from Cantonese into English might not be exclusive to English-speaking court personnel, but also accessible to Cantonesespeaking lay participants who are bilingual in varying degrees. This, on the one hand, suggests that there is a monitoring mechanism in place in this somewhat transparent interpreting process to ensure the quality of interpreting; on the other hand, it inevitably subjects the court interpreter to immense external pressure. 1.4 Power of bilingual participants and of the court interpreter This study has illustrated a diminished role and power on the part of the court interpreters in the present-day Hong Kong courts as compared with their counterparts



Chapter 10.  Conclusions 173

in the old days, when the court interpreter was more often than not the only bilingual in court. On the other hand, bilingual participants, who have the advantage of listening to the same speech twice in both its source language (SL) and target language (TL) versions of the trial talk, enjoy more power and control in the triadic communication. Bilingual counsel may also exploit their bilingual knowledge to challenge the rendition provided by the court interpreter and to propose alternative interpretation which works to their advantage, as was demonstrated in the rape case presented in Chapter 4. 1.5 Impact of interpreter intervention on monolingual court actors Unlike the status quo in the early colonial days, the modern-day Hong Kong courts are dominated by court actors who are bilingual in Cantonese and English to varying degrees, thus diminishing the role of the court interpreter as illustrated in Chapter 4. However, in some cases which involve the participation of English monolingual legal professionals and witnesses testifying in a dialect other than Cantonese, the interpreter is cast in a more powerful role, especially when s/he takes the liberty to negotiate meaning with the speaker, which effectively excludes the participation of other court actors who do not speak the witness’s language, as was demonstrated in Chapter 5. This interpreter intervention may also impact on the evaluation of the competence of the interpreter concerned as well as the credibility of the witness in the eyes of jurors. 1.6 Judges’ intervention in witness examination and its impact on accuracy of court interpreting Judicial intervention in witness examination, which is transparent in a monolingual trial and accessible to the linguistic majority in court in a common bilingual setting, has nonetheless proved more problematic in the bilingual Hong Kong courtroom. Chapter 6 illustrates how a judge changing his/her passive participant role from auditor to speaker in the evidential phase of a trial can have an impact on the participation status of other court actors. This is a result of the court interpreter having to shift from the open court consecutive mode to the more restrictive chuchotage mode, or of the court interpreter being forced to omit interpreting altogether. The change in the mode of interpretation or the omission in interpretation has temporarily denied NES and NNES court actors’ access to the trial talk in question. Where the intervention occurs with the defendant sitting in the dock and the witness testifying in the witness box, chuchotage, if provided, can only be provided for the witness, not for the defendant, because of the distance between the interpreter and the defendant.

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1.7 Disadvantage of non-native English-speaking witnesses testifying in English and the impact on other participants in court This study has also demonstrated how Chinese witnesses as NNES testifying in English can be disadvantaged, as they do not possess the required proficiency in English to understand counsel’s questions and to express their answers in English. In the case of Hong Kong, the disadvantage is not confined to the witnesses themselves; their choice to testify in English without the mediation of the court interpreter has de facto deprived NES or other NNES court actors of the opportunity to hear the interpretation in open court. The chuchotage provided for the benefit of the defendant during this process, as has been illustrated throughout this book, is not accessible to them. In particular, the jury’s access to the evidence adduced during the process is of vital importance. In the murder case presented in Chapter 7, for example, it is doubtful whether the Chinese jurors – as NNES in court – understand counsel’s questions, which the medical doctors as expert witnesses have immense difficulties in comprehending, as well as the perplexing and non-responsive answers given by the expert witnesses. 1.8 The issue of jury comprehension in the Hong Kong courts This study has also demonstrated that jury comprehension in the Hong Kong courts is a more worrying problem than in any other common-law courtrooms. While studies in many other jurisdictions all point to the nature of legal language as the major factor impeding jurors’ comprehension in court proceedings, the comprehension problem encountered by jurors in Hong Kong is aggravated by their non-native command of the English language per se, not only the legalistic nature of the language. This argument has been supported by the findings of an earlier survey study, the observations from my data, an appellate court’s decision to overturn a jury verdict in a rape case, as well as anecdotal evidence, such as new reports about jurors’ comprehension and pronunciation problems. All this evidence suggests an aggravated jury comprehension problem in Hong Kong and an urgent need to make the courtroom fully bilingual. 1.9 Different interpreting styles for different speakers This study has also demonstrated a uniform and consistent shift from the use of direct speech when interpreting lay participants’ speech to the use of reported speech (or the ellipsis/omission strategy) for interpreting utterances produced by legal professionals. It has been demonstrated that the interpreting style depends on who the SL speaker is, rather than what is said by the SL speaker, contrary to



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what has been widely suggested in other studies. Findings from the court data seem to suggest a tendency for interpreters to shun the voice of legal professionals, and results of the survey indicate a sense of unease on the part of the interpreter in assuming the voice of legal professionals as the powerful participants in the court proceedings. It is thus argued that the adoption of a third-person interpreting style for legal professionals’ utterances may have stemmed from the interpreter’s consciousness of the power asymmetry in the courtroom and is thus a response to it. Following Bell’s audience design, it could also be argued that interpreters’ shift from the normative first-person interpreting style to a third-person interpreting style is a result of their accommodation to the audience, not merely to the addressee (who might otherwise consider them to be speaking in their own voice) but also to other audience roles as auditors or overhearers, in order to seek their approval. As has been illustrated throughout this study, unlike in the typical bilingual setting, witnesses and defendants in the Hong Kong courtroom are not the exclusive audience of the interpretation out of English; the Cantonese interpretation is accessible also to monolingual Cantonese-speaking audience in the public gallery as well as to the bilingual legal personnel. Results of the survey suggest that interpreters do have these audience roles in mind when they show a reluctance to assume the voice of the legal professionals. 2. Contributions of the present study 2.1 Contribution to existing literature on court interpreting Research on court interpreting has by and large focused on conventional bilingual settings where those not speaking the language of the court, and thus requiring interpreting services, are the linguistic minority and where the interpreter is usually the only bilingual in the encounter. This study has, however, examined a legal setting in which the majority of the lay participants – defendants, witnesses and the audience in the public gallery, and possibly Chinese jurors in jury trials – have to rely on the interpretation out of English for their participation in the proceedings, and interpreters therein often have to work with other court actors who share their bilingual knowledge. It is the first large-scale study to compare how the interactional dynamics and participation status of court actors in an interpreter-mediated trial in the Hong Kong courtroom are different from those in an ordinary bilingual courtroom. The analysis of the participant roles and power of court actors not only helps explain interpreting phenomena in the Hong Kong courtroom, but can also be used to account for those observed in other bilingual legal settings, including common-law courts in other former British colonies such as Malaysia (Ibrahim

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2007; Powell 2008), Brunei and Sri Lanka (Powell 2008). This authentic data-based study of interpreter-mediated trials in the bilingual Hong Kong courtroom is a contribution to the existing literature on court interpreting as such. 2.2 Contribution to translation and interpreting and sociolinguistic studies This study also illustrates the dynamic nature of interpreting, which is not only a linguistic but also a social phenomenon. Nida (1976), who has since 1964 (Nida, 1964) called for the study of translation (which in a broader sense includes also interpreting) as an act of communication, suggests that since translating “always involves the communication within the context of interpersonal relations, the model for such activity must be a communication model, and the principles must be primarily sociolinguistic in the broader sense of the term” (Nida 1976: 78). Nida (1976: 79) notes that “[t]he fact that translating seems to be a very complex operation should not be surprising. Language itself is complex, but the factors involved in human discourse are even more complex”. Roy (2000: 23) suggests that the reason why Nida advocates sociolinguistic theory for translation is that the process of translation needs to account for “a myriad of factors” ranging from interpersonal relations, linguistic and extralinguistic features, cultural and social variants, which all influence the way in which a message is formed and perceived. Interpreting, the speech-based communication, with the inclusion of the interpreter in the middle is much more complex than the text-based activity of translation, as it involves more variants. The process of interpreting thus has to account for even more factors, such as the power relations of the interlocutors and the participant roles taken on by them. This study accentuates the dynamic nature of the process of interpreting in the courtroom and the fact that accuracy in interpreting depends not only on the interpreter’s competence in preserving the semantic and pragmatic meaning of an utterance, but is also decided by “who does what and to whom” in the communicative process. For this reason, this study contributes not only to the field of translation and interpreting, but to the study of sociolinguistics, as it explores the default power asymmetry in the hierarchical courtroom and the correlation between power and participant roles taken on by court actors in the courtroom. 2.3 Contributions to forensic linguistics and social benefits of the study The study of courtroom interactions, monolingual or bilingual, and their implications for the administration of justice is one of the major areas of study of forensic linguistics. This research project contributes to the study of forensic linguistics in that it explores such issues as the disadvantage of second-language speakers in court, jury comprehension, and how the interactional dynamics, as observed in



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the uncommon bilingual Hong Kong courtroom, may impact on the participation status of individual court actors and potentially on the administration of justice. The findings of this study shed light on the practice of court interpreting and hence administration of justice. It will benefit not only interpreters, but also those working with them, in that they are made more conscious of the impact of their actions, with the court actors’ participation status in mind. It is expected that the findings will also facilitate court administrators to devise better policies relating to the provision of interpreting services in court. 3. Pedagogical implications 3.1 Coping with legal language and strategic use of language in court One of the challenges facing court interpreters is the need for them to work with legal language, which, as we know, is convoluted in nature and is intended not for lay people but for legal professionals. What makes the job of court interpreters even more difficult is the strategic use of language in court by lawyers, who, as Tiersma (n.d.) suggests, are “notorious abusers” of the legal language” and “have earned a reputation for obfuscation” (Mikkelson 2017: 28). Court interpreter education, therefore, should place more emphasis on familiarising students with the characteristics of legal language and sensitising them to the strategic use of language by lawyers in court as well as its intended linguistic and pragmatic force. 3.2 Coping with challenges Given the distinctiveness of the bilingual Hong Kong courtroom, interpreter training in Hong Kong should address the specifics of the bilingual Hong Kong courtroom and should in particular sensitise students to the possibility of being challenged by bilingual counsel/judges, and investigate ways of coping with the situation. As has been demonstrated throughout this study, interpreting in the Hong Kong courtroom is made doubly demanding due to the presence of other bilinguals, who can take on additional audience roles as overhearers who are able to check the accuracy of the interpretation. This, on the one hand, implies that justice is better safeguarded, but on the other hand will inevitably add to the pressure on court interpreters, whose performance is constantly scrutinised by these bilinguals. They may at times, as was illustrated in the rape case in Chapter  4, exploit their accessibility to both the SL and the TL versions of the testimony and challenge the interpreter by proposing an alternative interpretation that works to their advantage. While it is important that interpreters should not try to cover up

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or defend their mistakes to save face or avoid embarrassment, it is equally important that interpreters are taught how to defend an informed decision and not to submit meekly to authority as the interpreter in the rape case did, or else their professionalism may be called into question. 3.3 Interpreting for the record In the old days, the court record was only kept in the court language, i.e. English, and interpretation out of the court language and anything said in the witness’s language simply vanished into thin air once spoken, making it difficult to substantiate any allegation about interpreting mistakes. With the installation of DARTS in all court levels in Hong Kong, everything said in court is audio recorded. Interpreters must therefore be sensitised to this bilingual reporting system, which serves as a final line of defence against any interpreting mistakes. With this in mind, interpreters should do their utmost to ensure that their rendition attains the highest level of accuracy and to adhere to the ethical code and professional practices as closely as possible. It is also important for interpreters to correct any mistakes as promptly as practicable. A prompt correction of the record would avoid a potential appeal which may lead to the outcome of a trial being overthrown or in a trial de novo as in HKSAR v. Ng Pak Lun (2011] cited in Chapter 2, when the interpretation problem was subsequently uncovered by a review of the transcript. 3.4 Dealing with lexico-grammatical differences The fundamental lexico-grammatical differences between English and Chinese and the difficulty in translating implicit information from Chinese into English should also be accentuated in interpreter education between Chines and English. Like many other East Asian languages such as Korean (J. Lee 2009), Chinese is a context-dependent language. For example, verbs do not conjugate to agree with the subject or to reflect the tense or aspect, and nouns do not have singular or plural markers. It is important that interpreters recognise the fundamental lexicogrammatical differences between English and Chinese and know how to interpret implicit information from Chinese into English. If clarification is necessary, permission from the court must first be sought as far as feasible. Where possible, interpreters should strive to reproduce the ambiguity in the target language and leave the burden of clarification to the court, and should avoid committing themselves by resorting to guesswork. As shown in Chapter 4, the interpreter’s decision to opt for one meaning of the ambiguous Cantonese word saam1 ends up being challenged by the bilingual prosecution counsel, who must have decided that the other interpretation would work better for the prosecution’s case.



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3.5 Consistency in interpreting styles As was demonstrated in Chapter 9, interpreters in the Hong Kong courtroom are found to adopt two interpreting styles for representing the voice of legal professionals versus that of lay participants. It is important for interpreters to be trained to interpret in the first person regardless of who the speaker is and what is said by the speaker. This is to maintain interpreters’ impartiality and professional detachment, or else interpreters might be seen as aligning themselves with lay participants and distancing themselves from legal professionals. 4. Recommendations for best practice in the courtroom To ensure those who do not speak the language will be put on a comparable footing in an interpreted trial with those who do, efforts must also be made to facilitate the work of the interpreter. As Hale (2010) notes, interpreters cannot always be blamed for interpretation which is not fully accurate as there are often obstacles that are beyond their control, adequate interpretation being heavily reliant upon the physical working conditions and the behaviour of the co-present participants in the interaction. The recommendations made below aim to improve working conditions in the courtroom and the behaviour of other court actors, so as to facilitate the work of the interpreter in the courtroom. Some of these recommendations are generic and apply to bilingual legal settings in general while others specifically address the interpreting phenomena present in the Hong Kong courtroom. 4.1 Team interpreting and the use of simultaneous interpreting equipment As has been pointed out throughout this book, utterances produced by the legal personnel in an English-medium trial in the Hong Kong courtroom have to be interpreted from English to Cantonese not only for the defendant, but also for witnesses and the majority of the audience in the public gallery to enable them to participate in the proceedings. The participation of the NES court actors in the evidential phase of a trial is made possible only through the provision of interpretation in the consecutive mode in open court. Nonetheless, there are occasions, albeit rare, on which witnesses choose to testify in English, like the medical experts presented in Chapter  7. This is when no consecutive interpretation is provided in open court, with chuchotage provided only for the Cantonese-speaking defendant in the dock, thus denying the access of other NES court actors and possibly NNES jurors as well, as was explained above. Judicial intervention during witness examination is another problem, often resulting in a shift from the open court

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consecutive interpreting mode to the restrictive chuchotage mode or even a total omission of interpreting when chuchotage is difficult to effectuate. This highlights the limitations associated with the use of chuchotage in a courtroom where more court actors have to rely on the interpretation out of English for their participation in the trial. Thus the need for team interpreting is apparent. With team interpreting, using two interpreters in the same trial, it would be possible for one interpreter to provide chuchotage to the defendant in the dock and the other to the witness in the witness box in cases where judicial intervention occurs during the examination of a witness, rather than that of a defendant. This practice, however, would still prejudice other NES court actors like the audience in the public gallery or the NNES jurors. Besides, chuchotage, which is simultaneous interpreting (SI) without the use of electronic equipment, would create acoustic difficulties for both the interpreter working by the witness box and the interpreter providing chuchotage for the defendant in the dock: the voice of the interpreter working by the witness box would have to compete with or “drown out” that of the SL speakers (De Jongh 1992: 50), while the interpreter providing dockside whispering often has to work behind the SL speaker’s back, typically when counsel is addressing the judge (see Fowler, Ng, and Coulthard 2012). Adelo, a retired veteran Federal and State certified court interpreter notes that “one of the best kept courtroom secrets may be that court interpreters frequently cannot hear courtroom discourse”, pointing out that the place where the interpreter sits when providing chuchotage to the defendant and the fact that the interpreter’s voice overlaps with the SL speaker’s make it difficult for him/her to hear adequately what is being said (Adelo 2007: 11). The best solution, therefore, would be to have one interpreter providing SI of English utterances produced by legal professionals but not interpreted consecutively in open court to all those requiring such services, with the use of SI equipment,1 and the other interpreter concentrating on the provision of consecutive interpretation of the legal-lay interactions. The use of SI equipment allows the simultaneous interpreter to be physically removed from the SL speakers (as well as the listeners, including the defendant). The positioning of the simultaneous interpreter away from the defendant, as De Jongh (1992) rightly notes, would also help underscore the impartial role of the interpreter, as it would discourage “unnecessary communication on the part of the defendant with the interpreter” (De Jongh 1992: 51; see also Fowler, Ng, and Coulthard 2012). The use of team interpreting also has the benefit of reducing interpreter fatigue, as mental fatigue might understandably lead to a decrease in the quality of interpretation (see Fowler, Ng, and Coulthard 2012; Judicial Council on Cultural 1.  For SI equipment used by interpreters working in the US Federal Courts, see Kolm (1999).



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Diversity 2017; Moser-Mercer, Künzli, and Korac 1998). In the case of Hong Kong, the interpreter working solo has to interpret everything uttered in court, in two directions (to and from English) and in two modes besides. As has been pointed out in Chapter 3, interpreting at different stages of a trial involves the use of different modes and directions. Jury instructions and counsel’s opening speeches, for example, require chuchotage from English to Chinese, while the evidential phase requires dual directional interpretation in the consecutive mode. The use of two interpreters would thus enable division of work and help to reduce interpreter fatigue. Team interpreting as a way of reducing interpreter fatigue and ensuring the quality of interpretation in the courtroom is recommended by scholars, practitioners and professional organisations (e.g. De Jongh 1992; Hale 2010; Kristy 2009; Judicial Council on Cultural Diversity 2017; NAJIT 2007). Nevertheless, in a world where cost-effectiveness is considered paramount, as is evidenced, for example, by the outsourcing of interpreter services in the United Kingdom with the aim of cutting the costs of interpretation and translation (Hussein 2011), team interpreting in the courtroom seems to be an ideal rather than a reality. In Hong Kong, a second interpreter is used only in a trial which involves a witness/defendant speaking a third language other than the two usual languages (i.e. Cantonese and English). When that happens, the two interpreters will be working in different language combinations and thus cannot provide any relief for each other’s workload. As a matter of fact, in the case of Hong Kong, due to an increasing use of Cantonese as the court language, the need for interpreting between English and Cantonese has considerably decreased (especially in the lower courts) and is expected to diminish in the years to come. Therefore, the use of team interpreting would not necessarily imply additional financial resources. It would have the benefit of avoiding a possible retrenchment of the Court Interpreter grade in the long run, resulting from the increasing use of Cantonese as the court language, thus dispensing with the need for interpreting. The use of team interpreting in court would also put court interpreters on a par with conference interpreters, who always work in pairs, thus enhancing the professional image of court interpreters, and possibly their remuneration as well. 4.2 Training for court personnel The introduction of the interpreter into the courtroom necessarily alters the interactional dynamics. The need to train the court personnel on how to work effectively with the interpreter has been accentuated in many studies in court interpreting (e.g. Colin and Morri 1996; Del Pozo Triviño and Blasco Mayor 2015; Fowler, Ng, and Coulthard 2012; Hale 2015; Ozolins and Hale 2009; Hussein 2011; Mikkelson 1999, 2017) and can never be emphasised enough. Hale’s (2015) ground-breaking

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study, in particular, reports the contents and the positive evaluations of the various training workshops she conducted for judicial officers on how to work with interpreters effectively. The following recommendations for the best ways to work with interpreters in court apply not only to the Hong Kong courtroom, but also to other bilingual legal settings in general. 4.2.1 Recognise the interpreter as a team member Court personnel must first of all recognise the interpreter as part of their team and as someone who, like them, needs to prepare for the trial to get his/her job done properly. As Gamal (2006: 65) points out, it is “unrealistic to expect an interpreter to walk into a courtroom without any knowledge of the topic, terminology or chronology of the case and still be able to perform efficiently”. He suggests that court interpreters, like conference interpreters, should be briefed beforehand about the material and topics to be dealt with in court. Therefore, the interpreter’s access to background information relating to the case to be tried is essential. As aptly noted by González, Vásquez, and Mikkelson (1991: 177), attorneys do not appear in court without first reviewing their clients’ cases and preparing for their cases in court. It is undoubtedly unfair to expect the interpreter to get everything right in “one take” while counsel have days, if not weeks, to prepare the presentation of their cases. Lack of prior preparation, and hence unfamiliarity with the case at trial, could result in interpreters’ frequent clarifications with the witness or otherwise in their resorting to guesswork. The performance of the trainee interpreter, as illustrated in Chapter  2, demonstrates among other things his unfamiliarity with the case at trial and the relevant terminology. As Gamal (2006) observes, the judicial view that the interpreter’s prior knowledge of the case might affect his/her impartiality is, to a certain extent, understandable; yet court interpreters, like other professionals, are bound by their professional ethics, which inter alia emphasise the principles of impartiality and confidentiality. There is therefore no need to deny interpreters access to information on the nature of the case for reasons of impartiality and confidentiality. As a matter of fact, briefings to interpreters on the nature of the court case prior to the commencement of court proceedings and allowing interpreters time for preparation “are beneficial to both interpreters and lawyers”, as they facilitate their work together in court (Judicial Council on Cultural Diversity 2017: 90). González, Vásquez, and Mikkelson (2012: 942) too contend that allowing the interpreter access to case materials and time for preparation is important to facilitate a smooth, efficient interpretation and reduce the likelihood of errors, as well as minimising the need for clarification and thus interruption of the court proceedings.



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4.2.2 Pause at regular intervals for consecutive interpretation Since interpretation for legal-lay interactions in the Hong Kong courtroom is in the main provided in the consecutive mode to ensure accuracy in interpretation, SL speakers must pause at regular intervals to permit a consecutive interpretation of their utterances. It would be helpful for witnesses to be informed by the court, before taking the stand, of the need for them to pause for the interpreter while testifying. In this regard, police officers in Hong Kong are usually better witnesses for the interpreter, as testifying through an interpreter is part of their training as police officers. 4.2.3 Avoid interruptions, rapid and overlapping speech Judges should avoid interrupting the witness examination, except to clarify ambiguity in counsel’s question or a witness’s answer. As was illustrated in Chapter 6, when the judges interrupt the proceedings, the natural consequence is that counsel are unable to finish their questions and the interpreters to render them into Cantonese. In the case where the judicial intervention meets with resistance from counsel and matters develop into a heated debate, the rapidity and overlapping speech typical of an argument create immense difficulty for the interpreter, the result of which is an incomplete rendition or, worse still, non-interpretation of the verbal encounter. This subsequently excludes some court actors from participating in the proceedings. Judges and counsel should make the effort to speak clearly and audibly and to avoid overlapping speech (Kristy 2009). Many of them, however, seem to be unaware of the problems caused by lack of audibility and speaking too quickly, and how this might impact on the interpreter, since they are never informed of such problems by interpreters themselves (Mikkelson 1999). Mikkelson (1999: 3) suggests that the reason why interpreters do not inform the court of such problems is that they “are so intimidated by the black robe and high bench that they don’t dare interrupt the proceedings to make any special requests”. Where a judicial intervention is unavoidable, efforts should be made on the part of the judge to allow counsel to finish his/her turn and the interpreter to complete the rendition of counsel’s question before interrupting the proceedings. In the case where counsel’s question is interrupted, the judge should ask counsel to repeat it at a later stage as a repair strategy. 4.2.4 Use plain English where possible As was demonstrated in Chapter 7, the use of syntactically complex, semantically overloaded questions and language of a high register, as well as in the use of declarative questions or tag questions, may have all contributed to the NNES witnesses’ difficulty in understanding the questions. This, and the high-register language used by judges in their jury instructions as demonstrated in Chapter 8, will presumably

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cause a comprehension problem for Chinese jurors in court, and possibly for the interpreter working in the background in chuchotage for the defendant. To enhance comprehension and facilitate effective communication, it is suggested that legal practitioners should use plain English by avoiding excessive jargon, slang and technical terms, rhetorical questions and double negatives especially “when inexperienced noncertified interpreters are involved” (González, Vásquez, and Mikkelson 2012: 583). With regard to the use of plain English in court, Standard 14 of the Recommended National Standards for Working with Interpreters in Courts and Tribunals, a document prepared by a specialist committee comprising judges, scholars, interpreters, interpreting service providers and other stakeholders in Australia, suggests that “[j]udicial officers should use their best endeavours to use plain English to communicate clearly and articulately during court proceedings” (Judicial Council on Cultural Diversity 2017: 12). The document also proposes eleven plain English strategies, which include using active voice instead of passive voice, and avoiding abstract nouns and negative questions (Judicial Council on Cultural Diversity 2017: 58). While these are no doubt useful suggestions, there is no knowing in reality how receptive lawyers are to them. Lawyers might see their linguistic base of power (Walker 1987) restrained or diminished if they had to avoid, for example, asking rhetorical questions by using negatives or double negatives, bearing in mind that lawyers often use coercive rhetorical questions to constrain and manipulate witnesses’ answers (see Woodbury 1984). Besides, rhetorical questions are used in our day-to-day conversation to achieve pragmatic effect such as irony or sarcasm or for other purposes. Therefore, before plain English strategies and suggestions are accepted and implemented, it is important that court interpreters are trained how to cope with the linguistic phenomena in court (see 3.1 above in this chapter). 5. Institutional and administrative recommendations An improvement in the working conditions and in the practice and behaviour of the co-present court actors alone, as noted by Hale (2010), does not guarantee a quality interpreting service, which can only be provided by competent interpreters with the right specialised training. To ensure quality in interpreting, the following institutional and administrative recommendations should also be implemented. 5.1 The need to raise the entry requirements As was illustrated in Chapter 2, court interpreting in Hong Kong was necessitated in a time when bilingual competence in English and Cantonese was a rare skill.



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The interpreting quality in those days was described as “deplorably bad” (Jarman 1996: 629), yet little could be done to improve the situation due to the shortage of competent bilinguals at that time. Court interpreting is a highly complex task, which, as Hale (2010) suggests, requires native or native-like level of competence in the two languages concerned in a variety of genres and registers. With the popularisation of education and with translation and interpreting being developed into an academic discipline and offered in many universities nowadays, it is time to raise the requirements for the interpreter’s level of bilingual competence and to make a first degree and post-graduate qualifications in translation/interpretation prerequisites for the job. 5.2 The need to improve remuneration and career prospects Higher entry requirements must also come with an improvement in the remuneration and career prospects. Poor remuneration and career prospects have made it difficult to attract talented interpreters to enter or stay in the field, as was pointed out in Chapter 2. A deplorable reality in Australia as observed by Hale (2010) is that many of the best interpreting graduates do not practise interpreting for very long, but choose to retrain for other more profitable and less demanding professions, which is similar to the situation in Hong Kong, as was pointed out in Chapter 2. Hale (2010: 443) suggests that it is important to provide competent bilinguals, who are, however, limited in supply, with “the necessary incentives to pursue a career as highly specialised interpreters”. 5.3 The need to make pre-service training mandatory Mandatory pre-service training as Hale (2010) suggests does not guarantee errorfree interpretation, but it will nonetheless guarantee a minimum standard and professional status for interpreters. In many countries where court interpreters mostly work as freelancers, pre-service training usually refers to training undertaken, for example, in a university course (or other short certificate courses) in legal interpreting prior to working in court. In the case of full-time staff interpreters like those in the Hong Kong courtroom, pre-service training may take the form of in-house training which takes place after an interpreter has passed the translation and interpretation tests and is subsequently offered employment, but before s/he is deployed to a court to provide interpreting services. The current practice of on-the-job training as described in Chapter 2 should be replaced with pre-service training. The need to work with other bilinguals and the introduction of DARTS in courts make interpreting in the Hong Kong courtroom a much more demanding job than it was in the early days and in many other jurisdictions. Examples (2.1)

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and (2.2) in Chapter 2 underscore the undesirability of the century-old learningby-doing training method. Putting an interpreter in the courtroom before s/he is ready for the test will not only compromise the administration of justice, but also do much harm to the professional image of the court interpreter. How would the interpreter earn the respect of the other court actors or be regarded as a professional when s/he is frequently criticised by the bilingual judge for various interpreting problems, as in the newspaper reported case cited in Chapter  2, or has to rely on the prompting of his supervisor when he gets stuck in open court, as demonstrated in Example (2.2) in the same chapter? To enhance the image and professional status of the court interpreter, a lengthier and more rigorous training programme should be provided for new recruits before they are considered fit to make their first appearance in court as interpreters, well-trained and prepared for the challenge. The DARTS recordings of court proceedings provide the best authentic training materials with which mock trials can be conducted. The in-house training programme should preferably last for a period of at least six months,2 during which arrangements should be made for the new recruits to visit the courts to see experienced interpreters at work and to familiarise themselves with the trial procedures and terminology pertaining to court proceedings. 5.4 The need to restructure the Court Interpreter grade in Hong Kong As mentioned above, with the increasing use of Chinese in court, the need for interpretation has considerably decreased in recent years, especially in the lower courts. The daily routine of many of the serving full-time court interpreters consists of translating and certifying translated court documents rather than interpreting in court. Only cases heard by monolingual English-speaking judges or represented by monolingual English-speaking counsel require the service of an interpreter. In the light of the fundamental change in the trial language, and thus in the duties of court interpreters as described in Chapter  2, it would be desirable to split the grade into two, namely Court Interpreter and Court Translator. Given the high-pressure nature and complexities of court interpreting, the entry requirements and remuneration of the Court Interpreter grade should be raised to be comparable with those of the Simultaneous Interpreter (SI) grade, as described in Chapter 2, and the Court Translator grade should be made comparable with the Official Languages Officers (OLO) grade (mentioned also in Chapter 2) in terms of entry requirements and remuneration, as they both deal with written translation. 2.  New recruits of the Court Prosecutor grade undergo an intensive pre-service training programme of 9 months before they appear in court as court prosecutors (Allcock 2007).



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With the division of the existing Court Interpreter grade into two grades and the entry requirements raised for the new Court Interpreter grade, the new grade can be retrenched in such a way that only highly capable and professionally trained bilinguals would be hired or retained in the grade, while those who are not should be advised to opt for the translation stream and join the Court Translator grade. The restructuring of the existing grade, and the adoption of team interpreting proposed under Section  4.1 of this chapter, would make it possible to fully utilise the interpreters for the court service. As has been pointed out above, many interpreters in the lower courts do not provide an interpreting service on a regular basis nowadays because of the increasing use of Chinese in trials conducted in these courts. Expatriate monolingual English-speaking judges usually have newly recruited interpreters assigned to them so as to enable these novice interpreters to gain more interpreting experience. As a result, there is not much chance for more senior court interpreters to render interpreting services in court. It is likely that they will become de-skilled by the time their services are required in court. The restructuring of the Court Interpreter grade thus has the advantage of keeping the interpreters’ skills intact and sharp. 5.5 The need to review the deployment mechanism As was mentioned in Chapter 2, new recruits (in the rank of Court Interpreter II) always start from the lower courts (magistracies and tribunals). The rationale behind this presumably is that since new recruits are green and will inevitably make mistakes during the process of interpreting, the lower courts, which deal with minor offences, are better and safer places for these novices to gain experience and err: the consequences of any interpreting problem would not be as dire as in more serious criminal offences tried in the higher court, and would attract less media attention and coverage. This arrangement is understandable and there is not much to criticise about it, as long as the needs for interpreting at all court levels are comparable, as was the case in the early days when all trials were conducted in English only. Today, however, when over 80% of the cases in the Magistrates’ Courts are dealt with in Cantonese (Appendix 2), and with only one out of the 72 magistrates at the time of writing being an expatriate, as noted in Chapter 2, many interpreters in the rank of Court Interpreter II posted to the Magistrates’ Courts instead mostly perform the duty of translating documents to be used in court, such as medical reports, rather than interpreting in courts (personal communication 2018). The need to review this deployment mechanism is thus apparent and imminent. Given the fundamental change in the demand for interpreting at different court levels, one cannot help wondering if there is a need to uphold this outdated rank-based deployment mechanism. It would be desirable, for example, for novice interpreters

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to be posted to the High Court, so that they can observe and understudy senior court interpreters at work on a day-to-day basis. This exposure will allow them to familiarise themselves with the court procedures and the terminology related to different court cases and to learn from senior court interpreters various skills including interpreting skills and the techniques of coping with challenges. At a later stage when the novices have built up more confidence, they can be assigned the duty of providing chuchotage, which is less demanding, to assist the interpreter they understudy. This will also help relieve the burden of the sole interpreter in court having to alternate between the modes of interpreting and to move back and forth in the courtroom due to the change in the modes. This will also help to promote team interpreting, the benefits of which were discussed above in Section 4.1 of this chapter. 6. Recommendations for further research This study of the interactional dynamics and communication processes in the bilingual Hong Kong courtroom represents an initial move from which further research can be conducted to examine this under-explored legal setting. The following are two possible areas which warrant further exploration. 6.1 Participation status of jurors in an interpreter-mediated trial in the Hong Kong courtroom The participation of jurors as silent observers – yet ultimate decision-makers – in the special context of the Hong Kong courtroom is an area that warrants further exploration. As noted in the earlier chapters, jurors in trials conducted in English are predominantly “bilingual” locals. It would be interesting to carry out experimental studies on local jurors’ comprehension of legal monologues such as jury instructions, counsel’s speeches, or expert evidence given in English. Findings of such studies would shed further light on the jury comprehension issue and provide empirical evidence for the formulation of better policies towards the provision of interpreting services and the refinement of the jury system appropriate to the special context of the Hong Kong courtroom. 6.2 Contrastive study of the discourse of the witnesses’ testimony in a monolingual Cantonese trial with that in a bilingual English trial K. H. Ng’s (2009) ethnographic study of the Hong Kong courtroom concludes that despite the stipulation of the law that English and Chinese (or Cantonese in the



Chapter 10.  Conclusions 189

oral context) enjoy equal status under the bilingual common-law system, trials conducted in English differ from Cantonese trials in many ways. English trials are described by bilingual barristers as “solemn, respectful and dignified” whereas Cantonese trials are, in their words, “noisy, mundane, and belittling” (K. H. Ng 2009: 6). He argues that it is because the use of language is a social practice, which is “embodied, intuitive and habitual”; it is not about language per se but about the social practices that language embodies (ibid.). K. H. Ng argues that English and Cantonese are of two distinct linguistic habituses in Hong Kong: for about a century and a half, English has been the language of law, business, politics and other serious public activities; Cantonese is “the language of the family, the mass media and the street” (K. H. Ng 2009: 9). K. H. Ng’s (2009) argument that Cantonese is devoid of formalism may appear a little contentious. His study, however, serves as a point of departure from which further study on the Hong Kong courtroom can be embarked upon. As has been pointed out throughout this study, in an English trial (as in a Cantonese trial), witnesses mostly testify in Cantonese, assisted by an interpreter. Therefore, the fact that witnesses behave differently in an English trial as compared to a Cantonese trial necessarily suggests that participants who do not speak the language of the court, albeit with the assistance of an interpreter, are not on an equal footing with those who do. For one thing, participants who are familiar with the language of the court presumably feel more at ease and less intimidated than those who are not. Secondly, the need for them to pause during the process of testifying to permit a consecutive interpretation of their utterances means that they have little control over the discourse of their speech. It would therefore be interesting to compare the discourse of the witnesses’ testimony in a monolingual Cantonese trial with that in a bilingual English trial. 7. Concluding remarks It has been demonstrated throughout this study that the participation status of NES or NNES court actors in an interpreter-mediated trial in the Hong Kong courtroom is inevitably compromised in one way or another. For the court actors to access an interpreter-mediated trial in its totality, as their counterparts in a monolingual trial do, efforts must be made by all parties concerned. Interpreters do not work in isolation but with other interlocutors in a speech act, and therefore cannot be held wholly responsible for the quality of interpretation, which is subject to many other external factors (Hale 2015: 173). As Ozolins and Hale (2009) observe, quality in interpreting is a shared responsibility among all parties involved in the interpreted encounter, not the sole responsibility of the interpreter: speakers have to assume responsibility for what they say and how they say it;

190 Common law in an uncommon courtroom

employers have to assume responsibility for providing suitable working conditions and remuneration for interpreters; educational institutions have the responsibility of providing adequate resources and support; researchers have the responsibility of making their research relevant, applicable and accessible to practitioners, while interpreters must assume the responsibility for their own professional development and professionalism. When the parties concerned assume their fair share of the responsibility for communication, quality in court interpreting can be attained and those who do not speak the language of the court can expect to be put on a comparable footing with those who do.

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Appendix 1

Timeline of the use of Chinese in courts

The following table shows the dates when Chinese was first allowed to be used in various courts in Hong Kong. Courts

Types of cases

Magistrates’ Courts, Small Claims   Tribunal, Labour Tribunal, Coroner’s Court, Juvenile Court, Immigration Tribunal

Date from which Chinese could be used 1974

District Court Lands Tribunal

Civil cases, matrimonial cases, employees’ compensation cases, criminal cases and Lands Tribunal cases

16 February 1996

Court of First Instance of the High Court

Appeals from Magistrates’ Courts, Labour Tribunal, Small Claims Tribunal and Obscene Articles Tribunal

1 December 1996

Appeals from the Minor Employment Claims Adjudication Board

2 June 1997

Any other cases including civil and criminal cases

27 June 1997

Any appeal from the Court of First Instance of the High Court, the District Court and the Lands Tribunal

27 June 1997

Court of Appeal of the High Court

Appendix 2

Percentage of criminal cases conducted in Chinese in various courts

The following table shows the percentage of criminal cases conducted in Chinese in various courts from 1997 to 2017. Court Year

Court of Appeal

Court of Court of District First Instance First Instance Court (Magistracy (Trials) Appeals)

Magistrates’ Courts

1997

2.59%

13.1%

6.45%

13.6%

63%

1998

10.52%

36.22%

10.4%

18.8%

69%

1999

12.8%

41.22%

12.02%

19.7%

70.36%

2000

15.15%

48.55%

15.38%

22.25%

72.86%

2001

18.46%

57.31%

16.28%

25.88%

78.83%

2002

23.04%

55.86%

27.14%

30.03%

77.52%

2003

24.6%

59.8%

23.7%

32.5%

74.9%

2004

22.7%

56.8%

21.2%

12.3%

68.7%

2005

19.3%

62.5%

16.5%

11.8%

69.7%

2006

26.4%

63.2%

23.5%

37.1%

75.2%

2007

27.4%

71.4%

24.7%

31.9%

83.6%

2008

31.6%

75.9%

23.8%

47.8%

83.1%

2009

32.5%

73.7%

26.1%

55.5%

84.5%

2010

41.8%

67.1%

25.5%

46.2%

80.9%

2011

32.1%

79.1%

26.8%

32.9%

78.6%

2012

36.6%

79.5%

33.3%

51%

74.7%

2013

34%

79.8%

40.4%

63.3%

87.6%

2014

42.6%

82.1%

25%

73.5%

87.4%

2015

38.3%

80.3%

40%

71.1%

84.8%

2016

38.1%

81.7%

42.7%

73.4%

87%

2017

40.3%

77.3%

30.4%

58.3%

84.5%

Source: Department of Justice, The Government of the Hong Kong Special Administrative Region. http://www.doj.gov.hk/eng/index.html

Appendix 3

Scale points for Court Interpreter and Simultaneous Interpreter under the Master Pay Scale for Civil Servants The following table shows the Master Pay Scale for Civil Servants with effect from 1 April 2018. The scale points for the various ranks of Court Interpreter and of Simultaneous Interpreter are indicated in columns three and four respectively for comparative purposes. Point

Monthly Salary (w.e.f.1 April 2018) HK$

Court Interpreter

Simultaneous Interpreter

49

129,325

Chief Judiciary Executive (max.)

Chief Simultaneous Interpreter (max.)

48

124,830

47

120,495

46

116,265

45

112,250

44

105,175

43

101,520

42

97,340

41

93,315

40

89,460

39

85,770

38

81,975

37

78,380

36

74,830

35

71,520

34

70,590

33

70,090

32

66,945

Senior Court Interpreter Simultaneous Interpreter (max.) (max.)

Court interpreter I (max.) Simultaneous Interpreter (entry) (continued)

210 Common law in an uncommon courtroom (continued) Point

Monthly Salary (w.e.f.1 April 2018) HK$

31

63,930

30

61,060

29

58,345

28

55,705

27

53,195

26

50,825

25

48,540

24

46,420

23

44,325

22

42,330

21

40,420

20

38,490

19

36,665

18

34,930

17

33,290

16

31,685

15

30,165

14

28,725

Court Interpreter

Simultaneous Interpreter

Court Interpreter II (max.)

Court Interpreter II (entry)

Source: Civil Service Bureau of the Hong Kong Special Administrative Region. http://www.csb.gov.hk/ english/admin/pay/42.html (Retrieved 13 August 2018)

Appendix 4

Transcript of the exchanges between the judge, the court clerk and the foreman of the jury, interspersed with remarks of the defence counsel

(Appeal bundle pp. 59–65 CACC 46/2005 HKSAR v. Lai She Hung; turn numbers added for easy reference) 1.

CLERK:

May the foreman please stand. On the 1st count of false imprisonment against the accused, Lai She-hung, have you reached your verdict upon which at least five of you have agreed?

2.

FOREMAN:

No.

3.

COURT:

Very well, let’s go to the next count. Members of the jury, have you reached a verdict on any count upon which at least …

4.

FOREMAN:

I’m sorry, maybe I misunderstand …

5.

COURT:

Yes.

6.

FOREMAN:

… the question, so …

7.

COURT:

Have you reached a verdict on the 1st count of false imprisonment upon which at least five of you are agreed?

8.

FOREMAN:

No.

9.

COURT:

Very well. Have you reached a verdict …

10.

DEFENCE COUNSEL:

Well, I’m sorry, my Lord.

11.

COURT:

Yes.

12.

DEFENCE COUNSEL:

I heard some of the jurors saying ‘Yes’.

13.

COURT:

Ah. Well …

14.

DEFENCE COUNSEL:

But I – this is why we have this form, you see.

15.

COURT:

Yes, of course.

16.

FOREMAN:

So, in fact, the question is like that, ‘at least five of you have agreed’…

17.

COURT:

Agreed, yes. (continued)

212 Common law in an uncommon courtroom 18.

FOREMAN:

… so my answer is ‘No’, not more than five persons have agreed.

19.

COURT:

But …

20.

DEFENCE COUNSEL:

Ah, it’s the ‘at least’ which is …

21.

COURT:

Oh, yes, so …

22.

FOREMAN:

Because it use ‘at least’.

23.

DEFENCE COUNSEL:

Yes …

24.

COURT:

Yes.

25.

DEFENCE COUNSEL:

… the juror is right.

26.

FOREMAN:

This is grammar. You use …

27.

DEFENCE COUNSEL:

Yes.

28.

FOREMAN:

… ‘at least five of you have agreed’.

29.

DEFENCE COUNSEL:

He’s right.

30.

COURT:

Yes.

31.

FOREMAN:

I’m right I think.

32.

COURT:

Well, I don’t know about that …

33.

DEFENCE COUNSEL:

Yes, Yes

34.

COURT:

… but …

35.

DEFENCE COUNSEL:

Five or more.

36.

COURT:

… have at least five of you agreed on a verdict in respect of the 1st count?

37.

DEFENCE COUNSEL:

My Lord, sorry, with great respect …

38.

COURT:

Yes.

39.

DEFENCE COUNSEL:

… and don’t think I’m being in any way …

40.

COURT:

No, no, of course not.

41.

DEFENCE COUNSEL:

In fact, I’m trying to help because …

42.

COURT:

Yes, I know you are.

43.

DEFENCE COUNSEL:

Yes. Shouldn’t it be – I’ve not noticed this – shouldn’t it be ‘five or more of you have agreed’?

Appendix 4.  Transcript of exchanges between court personnel and jury foreman 213

44.

COURT:

Well, we can put it in that way.

45.

DEFENCE COUNSEL:

Because I think that the jury foreman regards ‘at least five’ meaning six and I think he’s possibly, on one view of the English …

46.

COURT:

Well, all right.

47.

DEFENCE COUNSEL:

… language.

48.

COURT:

Have you reached a verdict upon which five or more of you …

49.

DEFENCE COUNSEL:

Yes.

50.

COURT:

… are agreed?

51.

FOREMAN:

No.

52.

DEFENCE COUNSEL:

I apologise, my Lord. I’m sorry.

53.

COURT:

Very well. That’s all right. Have you reached any verdicts on this indictment upon which at least five or more of you are agreed, members of the jury?

54.

FOREMAN:

You mean count no. 1?

55.

COURT:

Well, no, any count. You’ve told us that you haven’t reached a verdict upon which five or more of you are agreed on count 1 and I am just enquiring of you whether you reached any verdicts in respect of counts 2 or 3 now?

56.

FOREMAN:

Yes.

57.

COURT:

You have, have you?

58.

FOREMAN:

Yes.

59.

COURT:

Very well. Well, let’s put the question in respect of the 2nd count then, on count 2.

60.

CLERK:

On the 2nd count of rape against the accused, Lai She-hung, have you reached a verdict upon which five of you have agreed to?

61.

DEFENCE COUNSEL:

Or more of you.

62.

CLERK:

Or more.

63.

COURT:

Five or more.

64.

CLERK:

Five or more of you have agreed to?

65.

FOREMAN:

The answer is still no.

66.

DEFENCE COUNSEL:

Right.

67.

FOREMAN:

That is not more than – five or more of us have agreed …

68.

COURT:

I see.

69.

FOREMAN:

… the answer is no. (continued)

214 Common law in an uncommon courtroom 70.

COURT:

And is that the same answer in respect of the 3rd count?

71.

FOREMAN:

No.

72.

COURT:

You haven’t reached a verdict upon which …

73.

FOREMAN:

For the 3rd count, our answer is five or more of us have agreed.

74.

COURT:

I see. Very well. On the 3rd count then.

75.

CLERK:

Okay. On the 3rd count of rape against the accused, Lai She-hung, have you reached your verdict upon which at least or more of five of you have agreed to?

76.

FOREMAN:

Yes.

77.

CLERK:

Is the verdict unanimous?

78.

FOREMAN:

No.

79.

CLERK:

By what majority have you arrived at the verdict?

80.

FOREMAN:

Six to one.

81.

CLERK:

What’s the verdict?

82.

FOREMAN:

Guilty.

83.

COURT:

Very well. Members of the jury, I’m going to ask you now to return and continue your deliberations in respect of the first two counts. Is there any assistance that I might be able to give you in respect of those two counts, on either the law or to remind you of some of the evidence?

84.

FOREMAN:

Well, my Lord …

85.

COURT:

Yes.

86.

FOREMAN:

… I think the question itself has some sort of problem. If you don’t mind, maybe we can tell you the counts ‘yes’ or ‘no’ so definitely there will not be an ambiguous answer.

87.

COURT:

Yes.

88.

FOREMAN:

Because the question structure is like that.

89.

COURT:

Oh, it’s the questions?

90.

DEFENCE COUNSEL:

I think that’s …

91.

COURT:

I see.

92.

FOREMAN:

If they – in order to eliminate any ambiguity, if, my Lord, you may allow us to let you know about how many number of ‘yes’ and how many number of ‘no’ …

93.

COURT:

Yes.

94.

FOREMAN:

… then definitely it will be …

95.

COURT:

All right. …

96.

FOREMAN:

… the answer.



Appendix 4.  Transcript of exchanges between court personnel and jury foreman 215

97.

COURT:

Don’t tell me what your verdict is but are you unanimous on the 1st count?

98.

FOREMAN:

No.

99.

COURT:

All right. Well, in what way …

100. FOREMAN:

Proportional.

101. COURT:

… are you split on the 1st count?

102. FOREMAN:

One to six.

103. COURT:

One to six.

104. FOREMAN:

One ‘yes’ and six ‘no’.

105. COURT:

All right, well, I can accept a verdict of six to one. Can you tell me your verdict? Is it guilty or not guilty on the 1st count?

106. FOREMAN:

Not guilty.

107. COURT:

Not guilty. By a majority of six to one? Very well. Now, in respect of the 2nd count, to continue doing it in your way, are you unanimous?

108. FOREMAN:

No.

109. COURT:

And in what way are you split?

110. FOREMAN:

Three to four.

111. COURT:

Three to four. Well, that …

112. FOREMAN:

Three ‘yes’ and four ‘no’.

113. COURT:

Well, no …

114. DEFENCE COUNSEL:

No, no, no.

115. COURT:

… that is not a verdict that I can accept, and so what I’m going to do, in those circumstances, is to invite you to continue your deliberations to see if you can reach a verdict in respect of that. Now, is there any assistance that I can give you in respect of that 2nd count?

116. FOREMAN:

I think for the members of jury we are quite – we have decided the verdict. If you may ask me ‘guilty’ or ‘not guilty’ then I give you the answer.

117. DEFENCE COUNSEL:

No.

118. COURT:

Well, you see, I can’t, because you’ve told me that you’re split 3:4 so that is not a verdict that I can accept either way.

119. FOREMAN:

Mm’m.

120. COURT:

It either has to be unanimous, 5:2, or 6:1, so that is the – and that is either guilty or not guilty, but that anything less than that is not a verdict that I can accept. So in respect of that count, I must invite you to continue your deliberations.

121. FOREMAN:

I understand, yes.

122. COURT:

All right. (continued)

216 Common law in an uncommon courtroom 123. FOREMAN:

Well, if we can have another retirement …

124. COURT:

Yes, of course.

125. FOREMAN:

… for the members, I think we can discuss amongst ourselves …

126. COURT:

Very well. Very well.

127. FOREMAN:

… so that better – maybe not a better but maybe a more suitable …

128. COURT:

Of course.

129. FOREMAN:

… answer can be given to the court.

130. COURT:

Well, it’s not a question of being suitable. You appreciate that …

131. FOREMAN:

What I mean is our answer will be in line with the – so-called the procedure that …

132. COURT:

Well …

133. FOREMAN:

… you are looking for.

134. COURT:

… you go and retire and further consider the matter, if you would.

135. FOREMAN:

Okay.

136. COURT:

Thank you very much indeed. And take as long as you need.

137. FOREMAN:

Okay.

138. COURT:

Thank you. Very well.

Appendix 5

Questionnaire on The use of direct or reported speech in court interpreting

The following is the online questionnaire conducted with court interpreters, using a free online survey tool  – Kwik Surveys (http://www.kwiksurveys.com). A brief description of the survey and my contact and affiliation are provided for the respondents’ reference.

The use of direct or reported speech in court interpreting This questionnaire is designed to survey the use of direct speech and reported speech in court interpreting and to find out the rationale behind the interpreter’s choice between first person (using direct speech) and third-person interpreting (using reported speech). The results of this survey will form part of my ongoing research project on court interpreting. All the responses will be anonymous and untracked (with the respondent’s name and email address remaining unidentified). The survey will take only about 5 minutes to complete and your help will be very much appreciated. Eva Ng The University of Hong Kong email: [email protected] 1.

How many years of court interpreting experience do you have? ○ Less than 1 year ○ 1 to 3 years ○ 3 to 5 years ○ 5 to 10 years ○ More than 10 years

218 Common law in an uncommon courtroom

2.

What are your working languages? ○ Cantonese & English ○ Cantonese, English & Mandarin ○ Other (Please specify) _____________________________________________________________

3.

What is your native language? ○ Cantonese ○ English ○ Mandarin ○ Other (Please specify) _____________________________________________________________

4.

What is your highest level of education? ○ Matriculation ○ Bachelor’s degree ○ Master’s degree ○ PhD ○ Other (Please specify) _____________________________________________________________

5.

What is your job title? ○ Court Interpreter II ○ Court Interpreter I ○ Senior Court Interpreter ○ Chief Court Interpreter ○ Other (Please specify) _____________________________________________________________

6. Did you receive any formal training in interpreting before you started your interpreting career in court? ○ No (Please go to Question 8) ○ Yes (Please indicate what kind of training and any qualifications you received in relation to interpreting) _____________________________________________________________ 7. Were you trained to provide consecutive interpreting in the first person, using direct speech? ○ Yes ○ No



Appendix 5.  Questionnaire on The use of direct or reported speech in court interpreting 219

8. In consecutive interpreting, how often do you render the Chinese first-person pronoun “我” produced by witnesses/defendants as “I” in English? ○ Always ○ Sometimes ○ Rarely ○ Never 9. In consecutive interpreting, how often do you render the English first-person pronoun “I” produced by counsel/judge into “我” in Chinese (e.g. 我/本席裁 定……;我想問你……;我向你指出……etc.)? ○ Always ○ Sometimes ○ Rarely ○ Never 10. In consecutive interpreting, how often do you render the English first-person pronoun “I” produced by counsel/judge into a third-person reference, using reported speech and referring to the speaker in his/her official capacity (e.g. 法 官裁定……;主控官想問你……;律師向你指出……etc.) ○ Always ○ Sometimes ○ Rarely ○ Never 11. Do you try, where possible, to avoid the need to render the English first-person pronoun “I” into “我” in the Chinese interpretation by changing active to passive voice? (e.g. rendering “I find you guilty as charged” into “你被裁定罪 名成立”) ○ Always ○ Sometimes ○ Rarely ○ Never 12. Do you try, where possible, to avoid the need to render the English first-person pronoun “I” into “我” in the Chinese interpretation by omitting the subject pronoun? (e.g. rendering “I put it to you” into “向你指出”)? ○ Always ○ Sometimes ○ Rarely ○ Never

220 Common law in an uncommon courtroom

13. Does your choice between first-person and third-person interpreting have anything to do with the content of the utterances? ○ No ○ Yes (Please specify) _____________________________________________________________ 14. On the whole, do you agree that you usually render the Chinese first-person “我” by witnesses or defendants into “I” in English but rarely render “I” by counsel/judges into “我” in Chinese? ○ Yes ○ No 15. If your answer to Question 14 is “Yes”, please state the reason(s) why (You may choose more than one answer). ○ I feel uneasy assuming the voice of counsel or judges because they are on a higher hierarchical level. ○ I don’t want to give the impression to all those in court that I am pretending to be the counsel and the judge by assuming their voice. ○ I don’t want the witnesses/defendants to conclude that I am speaking for myself if the interpretation is done in the first person. ○ I just follow what other colleagues (e.g. the interpreter I understudied) are doing. ○ Other (Please specify) _____________________________________________________________

Subject index

A abolition  146. See jury system accessible  9, 43, 45, 58, 94, 134, 140, 164, 169, 172, 173, 174, 175, 190 accuracy  1, 2, 7, 15, 21, 51, 67, 68, 70, 74, 85, 90, 91, 140, 148, 173, 176, 177, 178, 183. See distortion; omission acquit  41, 141, 142, 145. See trial procedure; verdict addressee  32, 43, 44, 45, 46, 47, 53, 67, 70, 86, 93, 117, 135, 149, 152, 161, 165, 167, 168, 169, 175. See audience role administration of justice  4, 5, 12, 49, 129, 130, 169, 172, 176, 177, 186. See delivery of justice. See also miscarriage of justice adversarial courtroom  56, 57, 70, 162, 167. See commonlaw system affirmation  30, 114, 141. See oath aggravating factor  140 alignment  32, 166, 167. See interpreting style. See also disassociation theory ambiguity  57, 58, 62, 79, 93, 158, 167, 168, 169, 178, 183, 214. See context; dilemma; polysemy antagonistic  111, 112, 119. See cross-examination; hostile animator  30, 86, 151, 166. See Goffman, Erving; participation framework; speaker role appeal  20, 22, 23, 91, 91n2, 131, 142, 150, 178, 205, 207, 211 atypical  5. See bilingual Hong Kong courtroom

audience design  152, 162, 175. See Bell, Allan audience role  39, 43, 44, 45, 46, 47, 48, 49, 51, 53, 70, 73, 109, 164, 165, 169, 172, 175, 177. See addressee; auditor; eavesdropper; overhearer auditor  43, 44, 45, 46, 47, 54, 70, 87, 91, 92, 93, 97, 109, 111, 149, 152, 164, 165, 173, 175. See audience role author  86, 166. See Goffman, Erving; participation framework; speaker role B Back-channelling  85, 124, 125. See communication problem Bell, Allan  45, 87, 152, 162, 164, 165, 169, 175. See audience design bilingual court personnel  21, 70, 169. See power and control; powerful participant bilingual court reporting system  22. See Digital Audio Recording and Transcription System (DARTS) bilingual Hong Kong courtroom  5, 8, 9, 19, 38, 39, 40, 46, 48, 49, 51, 108, 109, 134, 147, 171, 172, 173, 176, 177, 188. See atypical; interpreter-mediated trial; uncommon; unique; ubiquity of interpreters bilingual legislation  19. See Chinese (use of); Official Languages Ordinance

bilinguals  7, 15, 19, 21, 26, 46, 49, 51, 57, 63, 70, 164, 177, 185, 187. See power and control; powerful participant. See also monolinguals C Cadet Scheme  15. See Student Interpreter Scheme Caldwell, Daniel Richard  12, 13, 14. See powerful participant Cantonese-speaking  3, 5, 7, 19n8, 22, 42, 46, 47, 54, 74, 77, 87, 89, 98, 109, 114, 134, 148, 171, 172, 175, 179. See linguistic dichotomy; linguistic majority. See also English-speaking career prospects  7, 37, 38, 185. See Court Interpreter grade case to answer  41. See trial procedure changeover  19, 20. See sovereignty Chinese Language Officer (CLO)  24, 27, 37 Chinese (use of)  4, 18, 20, 32, 186, 187. See trial language; court language chuchotage  4, 7, 8, 9, 27, 42, 43, 44, 45, 68, 74, 98, 101, 102, 103, 103n4, 104, 105, 106, 107, 108, 109, 111, 126, 129, 135, 138, 147, 149, 152, 153, 171, 173, 174, 179, 180, 181, 184, 188. See mode of interpreting; whispering clarification  8, 36, 58, 75, 77, 78, 80, 90, 93, 116, 117, 120, 121, 122, 125, 126, 178, 182

222 Common law in an uncommon courtroom closing submission  41. See monologue; trial procedure co-present court actor  32, 50, 73, 92, 184 colonial  4, 7, 11, 12, 14, 17, 19, 21, 24, 26, 38, 50, 70, 90, 133, 141, 171, 172, 173. See also post-colonial common-law system  92, 189. See also adversarial system; jury system communication problem  4, 8, 53, 87, 113, 114, 115, 116, 117, 124, 125, 126, 132. See comprehension problem; decoding problem; encoding problem comprehension problem  4, 80, 112, 116, 118, 119, 121, 125, 126, 127, 129, 130, 131, 132, 134, 135, 136, 140, 141, 142, 145, 146, 147, 174, 184. See non-English speaking (NES); non-native English speaking/speaker (NNES) conduit  1, 86, 148. See copying machine; interpreter role confirmation-seeking question (CSQ)  77, 80. See cross-examination. See also information-seeking question (ISQ) consecutive interpreting/ interpretation  7, 42, 45, 94, 115, 138, 171, 172, 179, 180, 183, 189, 218, 219. See mode of interpreting context  2, 5, 7, 8, 18n7, 43, 48, 57, 58, 59, 64, 69, 70, 94, 124, 126, 136, 146, 158, 164, 168, 176, 178, 188, 189. See ambiguity; polysemy Conversation Analysis (CA)  6, 116, 117. See Gricean maxims; Cooperative Principle (CP) conviction  22, 23, 41, 57, 89, 91, 91n2, 142, 145. See trial procedure; verdict Cooperative Principle (CP)  111, 116, 117, 120, 125, 126.

See Conversation Analysis (CA); Gricean maxims copying machine  86. See conduit; interpreter role court actor  5, 7, 8, 11, 32, 38, 39, 40, 43, 45, 46, 48, 49, 50, 51, 53, 68, 70, 71, 73, 86, 90, 91, 92, 94, 95, 99, 108, 109, 110, 154, 172, 173, 174, 175, 176, 177, 179, 180, 183, 184, 186, 189. See court participant Court Interpreter grade  7, 11, 24, 25, 26, 30, 37, 38, 181, 186, 187. See Court Language Section; full-time court interpreter court language  3, 11, 18, 24, 25, 30, 38, 40, 45, 48, 171, 172, 178, 181. See trial language Court Language Section  24, 25. See Court Interpreter grade court level  6, 21, 25, 30, 178, 187. See Court of Appeal; High Court; Court of First Instance (CFI); District Court; Magistrates’ Court Court of Appeal  20, 22, 23, 129, 132, 142, 143, 144, 145, 205, 207. See court level; High Court Court of First Instance (CFI)  20, 20n11, 42, 132, 133, 205, 207. See court level; High Court court participant  38, 44, 111. See court actor court proceedings  1, 5, 9, 18, 22, 27, 30, 32, 39, 43, 48, 49, 57, 59, 70, 74, 92, 94, 95, 111, 132, 135, 137, 140, 145, 151, 174, 175, 182, 184, 186. See trial proceedings credibility  2, 8, 62, 70, 71, 89, 90, 173 cross-examination  41, 50, 51, 52, 53, 55, 62, 63, 64, 75, 76, 77, 78, 79, 83, 84, 85, 86, 100, 102, 105, 106, 111, 112, 114, 119, 120, 121, 122, 123, 124, 125, 126,

156, 157, 158, 159, 160. See antagonistic; hostile. See also examination-in-chief D decoding problem  79, 117, 118. See communication problem; comprehension problem. See also encoding problem defence counsel  51, 52, 53, 54, 60, 62, 65, 66, 73, 76, 83, 84, 85, 86, 99, 101, 102, 119, 122, 144, 156, 157, 161, 211, 212, 213, 214, 215. See also prosecution counsel delivery of justice  5, 92, 108, 110, 111, 127, 147. See administration of justice. See also miscarriage of justice deployment  7, 30, 33, 38, 187. See Court Language Section; Court Interpreter grade deviation  2, 149, 150, 164, 168, 169. See interpreting style; third-person interpreting dialect interpreter  25, 26, 26n17, 33. See part-time interpreter dialect speaker  113, 114. See inequality; disadvantage Digital Audio Recording and Transcription System (DARTS)  4, 22, 23, 70, 178, 185, 186. See bilingual court reporting system dilemma  1, 7, 67, 131. See ambiguity; context; polysemy direct speech  103, 147, 148, 165, 174, 217, 218. See interpreting style; first-person interpreting disadvantage  2, 108, 110, 112, 113, 114, 126, 129, 174, 176. See non-English speaking (NES); non-native English speaking/speaker (NNES) disassociation theory  161, 165. See distancing tactic. See also alignment

Subject index 223

distancing tactic  151 distortion  2, 29, 91. See accuracy District Court  6, 20, 30, 41, 42, 92, 95, 99n3, 205, 207. See court level dockside interpreting  27. See chuchotage; mode of interpreting dyadic (monolingual) communication  58, 148. See also triadic communication interactional dynamics  5, 95, 175, 176, 188 E eavesdropper  43, 44, 45, 48. See audience role ellipsis  59, 158, 166, 168, 174. See interpreting style enactment  18, 19, 24, Official Languages Ordinance encoding problem  117, 123. See communication problem English-speaking  3, 4, 7, 14, 42, 74, 85, 113, 132, 149, 151, 152, 172, 186. See linguistic dichotomy. See also Cantonese-speaking entry requirements  7, 11, 26, 37, 38, 184, 185, 186, 187. See Court Interpreter grade; Court Language Section examination-in-chief  28, 29, 41, 54, 61, 65, 75, 76, 77, 78, 79, 80, 81, 82, 84, 85, 86, 88, 94, 95, 96, 97, 98, 101, 104, 112, 117, 118, 119, 120, 121, 126, 148n1, 157, 159. See trial procedure. See also cross-examination exemption  137, 138, 141. See jury service expatriate  4, 21, 22, 30, 32, 32n19, 51, 65, 84, 133, 136, 187. See monolinguals. See also bilinguals expert witness  4, 8, 9, 114, 115, 117, 118, 138, 174. See disadvantage; non-native

English speaking/speaker (NNES) external pressure  4, 21, 70, 172. See bilinguals F face-threatening-act (FTA)  115, 122. See Conversation Analysis (CA); Cooperative Principle (CP) fact-finder  93, 94. See judge of fact first-person interpreting  2, 147, 148, 148n1, 149, 151, 160, 161, 162, 164, 165, 168, 175. See direct speech; interpreting style first-person reference  9, 147, 152, 153, 154, 158, 159, 161, 167, 168, 169 foreign language interpreter  25, 26. See part-time interpreter forensic linguistics  5, 9, 171, 176 full-time court interpreter  25, 27, 162, 186. See Court Interpreter grade G Goffman, Erving  30, 43, 48, 86, 93, 150, 166. See participation framework Governor  12, 13n1, 15, 16, 17, 17n5, 18, 141 Gricean maxims  94, 116, 120, 126. See Conversation Analysis (CA); Cooperative Principle (CP) guilty  13, 22, 23, 31, 41, 139, 142, 143, 144, 149, 155, 214, 215, 219. See verdict H hearsay evidence  148 High Court  4, 6, 14, 20, 20n11, 21, 22, 30, 37, 38, 41, 42, 51, 62n3, 92, 95, 98, 99, 115, 129, 132, 133, 135, 141, 188, 205. See court level hostile  112. See antagonistic; cross-examination

I illocutionary force  167 imbalance of power  111, 162. See power asymmetry; power imbalance impartiality  5, 15, 32, 74, 167, 169, 179, 182. See neutrality in person  31, 154. See legal representation; selfrepresented inconsistency  47, 64, 142, 143, 145. See accuracy; verdict inequality  111. See disadvantage; lay participant information-seeking question (ISQ)  77. See examination-in-chief. See also confirmation seeking question (CSQ) inherited practice  165. See reported speech; thirdperson interpreting interlingual  56, 132 interlocutor  43, 45, 58, 59, 68, 74, 75, 86, 89, 116, 125, 148, 176, 189 interpretation error/mistake  46, 67, 89 interpreter fatigue  180, 181 interpreter intervention  73, 173. See interpreterinitiated turn (IIT) interpreter role  166. See conduit; copying machine interpreter-initiated turn (IIT)  8, 74, 75, 76, 77, 78, 79, 86, 87, 89, 90. See interpreter intervention interpreter-mediated trial  44, 45, 50, 51, 60, 70, 94, 108, 149, 150, 151, 175, 176, 188, 189. See bilingual Hong Kong courtroom interpreting style  147, 150, 151, 152, 159, 161, 162, 163, 164, 165, 166, 167, 168, 169, 174, 175, 179. See first-person interpreting; direct speech; third person interpreting; reported speech interruption  77, 86, 89, 90, 93, 94, 96, 97, 102, 104,

224 Common law in an uncommon courtroom 108, 182. See interpreter intervention; judicial intervention intralingual  56, 132 invisibility  166, 169. See interpreter role J judge of fact  127, 129, 130, 139, 172. See fact-finder judicial intervention  8, 95, 107, 173, 179, 180, 183. See interruption jurisdiction  3, 38, 39, 40, 42, 70, 91, 146, 164, 174, 185 juror  2, 4, 7, 8, 9, 44, 45, 46, 47, 48, 62, 71, 89, 90, 109, 110, 126, 127, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 172, 173, 174, 175, 179, 180, 184, 188, 211. See jury system jury comprehension  4, 8, 109, 126, 127, 129, 129n1, 130, 132, 138, 145, 146, 146n4, 147, 174, 176, 188 jury empanelling  41. See trial procedure jury instructions  135, 138, 139, 140, 181, 183, 188. See jury comprehension; legalese; legal terminology; monologue; trial procedure Jury Ordinance  47, 109, 126, 133, 134. See jury system jury service  4, 9, 126, 134, 137, 140, 141, 145. See exemption; jury system jury system  129, 133, 146, 188 L language competence/ proficiency  113, 145. See linguistic competence lay participant  3, 4, 5, 9, 15, 19, 21, 40, 42, 49, 108, 111, 112, 132, 146, 147, 162, 163, 165, 167, 169, 171, 172, 174, 175, 179. See legal practitioner/ professional legal base of power  49, 83. See imbalance of power;

power asymmetry; power imbalance legal practitioner/professional  3, 5, 7, 9, 19, 21, 49, 51, 98, 111, 115, 130, 132, 147, 153, 159, 160, 161, 162, 163, 164, 165, 167, 168, 169, 171, 173, 174, 175, 177, 179, 180, 184. See also lay participant. legal representation  31, 67, 161. See also in person; self-represented legal terminology  135, 136, 141. See legalese. See also jury comprehension legalese  9, 130, 143. See comprehension problem; jury comprehension linguistic base of power  50, 112, 184. See imbalance of power; power asymmetry; power imbalance linguistic competence  134. See language competence/ proficiency. See also linguistic incompetence linguistic dichotomy  3, 7. See Cantonese-speaking; English-speaking linguistic incompetence  111. See disadvantage. See also linguistic competence linguistic majority  3, 11, 39, 43, 94, 109, 111, 173. See Cantonese-speaking. See also linguistic minority linguistic minority  3, 39, 40, 42, 45, 108, 175. See also linguistic majority loss of power  49, 68, 70, 73. See monolinguals M Magistrates’ Court  6, 12, 14, 18, 18n6, 19, 20, 27, 30, 31n18, 32, 33, 42, 92, 95, 99n3, 187, 205, 207. See court level Magna Carta  129 majority language  3, 39, 40, 41. See also minority language

majority verdict  22, 134, 143, 144. See verdict mandatory  185 mediation  2, 9, 42, 54, 98, 108, 110, 113, 126, 135, 138, 174 minority language  39, 40, 113, 171. See also majority language miscarriage of justice  17, 21, 23, 130. See also administration of justice; delivery of justice miscommunication  2, 36, 113, 116, 119, 124, 125. See communication problem misinterpretation  22, 46, 67, 87. See also interpretation error/mistake mitigation  41. See trial procedure mode of interpreting/ interpretation  7, 38, 39, 41,42, 48, 49, 51, 58, 94, 102, 108, 110, 111, 129, 134, 171, 173, 188. See chuchotage; consecutive interpreting/interpretation; simultaneous interpreting/ interpretation; whispering monolinguals  73, 74, 113, 164, 172. See expatriate; loss of power. See also bilinguals monolingual court proceedings  43. See also interpreter-mediated trial monologue  7, 9, 171, 188. See jury instructions; opening speech; closing submission; summing-up monopolise  4, 8, 87, 89. See power and control; powerful participant N native language  9, 33, 62, 102, 113, 114, 143, 151, 218 negative face  122. See also positive face neutralise  167. See interpreting style neutrality  148, 166, 167. See impartiality

Subject index 225

no case to answer  41. See trial procedure non-English-speaking (NES)  11, 92, 111, 149. See disadvantage non-native English-speaking/ speaker (NNES)  4, 8, 111, 132, 140, 174. See disadvantage; expert witness; inequality norm  1, 58, 74, 94, 147, 149, 151, 154, 164, 165, 168, 169. See direct speech; first-person interpreting novice  27, 33, 149, 187, 188. See on-the-job training; trainee interpreter O oath  30, 114, 132, 137, 141. See affirmation Official Languages Officer (OLO)  24, 37, 186 Official Languages Ordinance  18, 19, 19n8, 24 omission  2, 8, 9, 29, 46, 55, 56, 69, 74, 91, 92, 94, 97, 99, 103, 109, 110, 111, 158, 159, 166, 167, 168, 169, 173, 174, 180. See accuracy on-the-job training  27, 30, 185. See also pre-service training opening speech  181. See monologue; trial procedure overhearer  43, 44, 45, 46, 47, 48, 54, 67, 70, 97, 164, 165, 169, 172, 175, 177. See audience role overlapping speech  6, 183. See judicial intervention P part-bilingual  46, 47, 48, 53 participant role  5, 7, 8, 38, 40n1, 43, 48, 49, 50, 51, 54, 73, 86, 91, 166, 173, 175, 176 participation framework  30, 43, 48, 87, 93, 150, 166. See Goffman, Erving participation status  5, 7, 8, 39, 48, 51, 67, 68, 70, 71, 73, 90, 91, 94, 95, 97, 109, 110, 111,

115, 147, 154, 172, 173, 175, 177, 188, 189 part-time interpreter  24n13, 25, 30, 33, 37n2, 58, 58n2, 74, 147. See dialect interpreter; foreign language interpreter plain English  131, 183, 184. See jury comprehension plea-taking  1, 31, 32, 41, 42, 152, 153, 155. See trial procedure polysemy  56, 57, 58, 60, 70. See ambiguity; context positive face  122. See also negative face post-colonial  4, 20, 70. See also colonial power asymmetry  5, 9, 49, 112, 147, 162, 164, 169, 175, 176. See imbalance of power; power imbalance power and control  5, 8, 49, 68, 70, 74, 86, 90, 91, 94, 112, 113, 173. See powerful participant; powerless participant power imbalance  113, 114. See imbalance of power; power asymmetry powerful participant  7, 49, 162, 164, 165, 167, 168, 169, 175. See power and control. See also powerless participant powerless participant  167, 168. See power and control;. See also powerful participant pragmatic consideration  153, 165. See interpreting style pragmatic force  50, 92, 177 pre-service training  185, 186n2. See also on-the-jobtraining principal  86, 150, 151, 166. See Goffman, Erving; participation framework; speaker role prosecution counsel  54, 65, 66, 73, 76, 84, 96, 117, 158, 167, 168, 178. See also defence counsel

psychological factor  164. See interpreting style; third-person interpreting public gallery  35, 36, 40, 43, 44, 45, 46, 47, 87, 89, 97, 99, 103, 109, 164, 169, 172, 175, 179, 180 Q quash  91, 91n2, 132, 142, 145. See verdict quality of interpreting/ interpretation  12, 13, 14, 16, 23, 38, 92, 108, 172, 181, 189 R randomness  133, 134, 146. See jury system; representativeness rapidity  102, 107, 183. See judicial intervention re-examination  41, 68, 69. See trial procedure reception role  43, 48. See audience role relay interpreting  33, 34, 40n1, 73. See dialect interpreter; part-time interpreter remuneration  7, 37, 38, 181, 185, 186, 190 rendition  2, 8, 22, 23, 31, 46, 47, 50, 52, 53, 54, 61, 62, 63, 65, 66, 74, 80, 81, 85, 86, 89, 97, 98, 103, 108, 109, 148n1, 150, 152, 153, 173, 178, 183 repair  2, 84, 116, 117, 118, 120, 121, 122, 124, 126, 183. See Conversation Analysis (CA) reported speech  2, 9, 103, 147, 148, 150, 152, 153, 160, 161, 163, 165, 166, 167, 168, 169, 174, 217, 219. See interpreting style; third-person interpreting representativeness  133, 134, 146. See jury system; randomness

226 Common law in an uncommon courtroom S scrutiny/scrutinise  19, 20, 177. See bilinguals; power and control second-language speaker  113, 114, 176. See disadvantage; expert witness; inequality; non-native English speaking/speaker (NNES) self-protective device  149, 163, 165. See interpreting style; reported speech; third-person interpreting self-represented  111. See in person; legal representation sentence/sentencing  1, 41, 42, 121, 123, 149, 161. See trial procedure simultaneous interpreting/ interpretation (SI)  26, 103, 179, 180. See mode of interpreting sociolinguistics  5, 9, 176 source language (SL)  29, 42, 51, 59, 84, 92, 147, 152. See also target language (TL) sovereignty  19, 20, 146. See changeover speaker role  43, 93, 111. See animator; author; principal. See also Goffman, Erving; participation framework spokesman  31. See interpreter role standby interpreter  113 strategic use of language  56, 57, 112, 113, 130, 177 Student Interpreter Scheme  15. See Cadet Scheme summing-up  41, 44, 136, 137, 140, 143. See monologue; trial procedure

T target language (TL)  42, 51, 92, 173, 178. See also source language (SL) team interpreting  179, 180, 181, 187, 188 testify  3, 7, 8, 9, 11, 15, 33, 35, 36, 42, 48, 61, 112, 114, 115, 117, 135, 138, 171, 174, 179, 189. See testimony; trial procedure testimony  2, 8, 19, 20, 22, 29, 48, 52, 61, 62, 64, 69, 70, 84, 86, 87, 89, 105, 106, 107, 112, 126, 138, 148n1, 163, 177, 188, 189. See testify; trial procedure third-person interpreting  147, 149, 151, 159, 161, 163, 164, 165, 166, 168, 175, 217, 220. See interpreting style; reported speech trainee interpreter  27, 28, 29, 153, 160, 165, 182. See novice; on-the-job training translation  5, 9, 16, 17, 19, 20, 22, 23, 24, 25, 26, 27, 28, 33, 42, 53, 66, 140, 148, 150, 152, 171, 176, 181, 185, 186, 187 triadic communication  8, 43, 45, 51, 54, 68, 70, 73, 86, 90, 173. See also dyadic communication trial by jury  129, 146. See jury system trial language  18, 19, 20, 134, 186. See court language trial procedure  27, 31, 41, 42, 186. See plea-taking; jury empanelling; opening speech; examination-inchief; cross-examination; re-examination; case to answer; no case to answer;

closing submission; summing-up; verdict; acquit; conviction; mitigation; sentence/ sentencing trial proceedings  1, 145, 146. See court proceedings trouble source turn  126. See turn-taking system turn-taking system  93, 116, 117. See trouble source turn U ubiquity of interpreters  4, 11, 134, 145. See bilingual Hong Kong courtroom; interpreter-mediated trial unanimous  134, 214, 215. See verdict uncommon  5, 7, 21, 30, 31, 40, 112, 171. See bilingual Hong Kong courtroom unique  3, 8, 38, 171. See bilingual Hong Kong courtroom usurp  87 V verdict  9, 21, 22, 41, 42, 44, 57, 62, 92, 127, 132, 134, 136, 136n2, 139, 141, 142, 143, 144, 145, 152, 153, 156, 161, 163, 172, 174, 211, 212, 213, 214, 215. See majority verdict; unanimous. See also trial procedure W whispering  29, 32, 35, 36, 42, 45, 54, 68, 86, 160, 180. See chuchotage; mode of interpreting working language  24n13, 25, 33, 36, 73, 218

This book takes you into a common-law courtroom which is in no way similar to any other courtroom where common law is practised. This uniqueness is characterised, in particular, by the use of English as the trial language in a predominantly Cantonese-speaking society and by the presence of other bilinguals in court, thus presenting speciic challenges for the interpreters who work in it, and at times rendering the interpretation service superluous. This study, inter alia, problematises judges’ intervention in the court proceedings, Chinese witnesses testifying in English, as well as English-language trials heard by Chinese jurors. It demonstrates how the use of chuchotage proves to be inadequate and inappropriate in the Hong Kong courtroom, where interpreting in an English-language trial is arguably provided to cater for the need of the linguistic majority. This book is useful to interpreters, language educators, legal professionals, forensic linguists and policy makers alike.

isbn 978 90 272 0191 1

John Benjamins Publishing Company