A Note on Terminology

a few terms have meanings that are complicated by the unique context of Hong Kong. Also, the legal terminologies between Hong Kong (which usually follows the English terminology) and the United States are noticeably different. I have prepared this note on terminology, which draws in part on Atiyah and Summer’s (1987) note in their book Form and Substance in Anglo-American Law, to minimize confusion for readers who are less familiar with the English-style terminologies in law. Cantonese is often referred to, even by Cantonese speakers in Hong Kong, as a colloquial dialect with no standardized written form. In this book I follow the way most people in Hong Kong understand the term Cantonese, by confining its reference to an oral form of Chinese practiced in Hong Kong and parts of Guangdong (I offer an explanation of such understanding in Chapter 3). Hence, when I discuss how Cantonese is used in various parts of the book, I am, unless otherwise stated, discuss- ing the use of Cantonese in oral settings. Chinese is, on analysis, a complicated term because it means different things in oral and written contexts in Hong Kong. Invariably, when I use the term Chinese, I am referring to the way Chinese is predominantly practiced in Hong Kong—that is, Cantonese in oral settings and Standard Modern Chinese in written contexts. Standard Modern Chinese (SMC), a written form that is more or less based on vernacular Putonghua (Man- darin), or baihua in Chinese, is taught in the schools of Hong Kong as the proper written form of Chinese. Costs in Hong Kong, following the English practice, include legal ex- penses and fees payable to a lawyer. In the United States, costs refer only to court costs and do not include legal fees. The Court of First Instance is part of the High Court in Hong Kong (the other part is the Court of Appeal). Many of the cases that I analyze here are cases heard in the Court of First Instance. In the United States

xxi a note on terminology the term High Court is sometimes used to refer to the United States Su- preme Court. District Court is a lower court in Hong Kong. Unlike the district courts in the federal system of the United States, the District Court of Hong Kong has both limited criminal and civil jurisdiction. At the time of this writing, the District Court has civil jurisdiction to hear monetary claims up to HK$1 million (about US$128,200). In its criminal jurisdiction, the District Court may try the more serious cases (rather than the magistrates’ courts), with the main exceptions of murder, manslaughter, and rape. The maximum term of imprisonment it may impose is seven years. English law appears in various places in the book. The term English, not British, is used because England and Wales together constitute a juris diction; Scotland is a different jurisdiction with its own court structure (although the House of Lords is the court of final adjudication for Scot- land in civil cases). Historically, the common law in Hong Kong is mod- eled after English common law. Expatriate is a contested and confusing term. I reluctantly use it because it is used by many non-Chinese lawyers and judges (from England and other Western Commonwealth countries) when they describe themselves. Expatriate legal professionals are citizens of Western nation-states who stay and work in Hong Kong indefinitely or temporarily because of their legal expertise. Most professionally monolingual counsel and judges are expatriates (because they do not speak Cantonese). By this definition, there could arguably be ethnic Chinese lawyers or judges who are expatriates. (An example of this would be an ethnic Chinese lawyer born and educated in England who now works in Hong Kong.) Furthermore, some judges and lawyers in Hong Kong are professionally monolingual but should not be defined as expatriates. There are judges and counsel who grew up in the local English communities of Hong Kong (mainly South Asian minorities). They speak Cantonese casually but do not write, read, and speak to the degree considered professionally bilingual. Senior counsel, or SC, is the postcolonial equivalent of Queen’s Coun- sel, or QC (also known as King’s Counsel (KC) when the British mon- arch is a king). It is used in Hong Kong and some other former British colonies. Senior counsel in Hong Kong continue to fashion themselves

xxii a note on terminology as silks (they wear silk gowns, just like the Queen’s Counsel in England; see Chapter 4). Senior counsel are appointed by the chief justice in Hong Kong, in consultation with the two local professional associations for practicing lawyers. The award of the title is taken by both lawyers and the public in Hong Kong as a definitive recognition of the professional standing of a particular lawyer. Judgment and opinion appear to be used interchangeably by lawyers and judges in Hong Kong. Opinion in relation to legal cases is the term used in the United States for what would be referred to in England as the judgment of a court. Also, the word opinion in Hong Kong does not carry the meaning of superior judgment, as in the case of the English legal system. Unlike the judges in the House of Lords, who give “opinions” at the end of a hearing, the judges in Hong Kong’s Court of Final Appeal give judgments. There are other terms, such as examination-in-chief, reexamination, barristers and solicitors, or chambers (the office of barristers), that might be unfamiliar to readers who have come to know the common law through the system of the United States. But I believe the meaning of these terms will be clear from the context of use.

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