Law and Language: Problems of Meaning and Interpretation in the Hong Kong Courts

This dissertation, "Law and Language: Problems of Meaning and Interpretation in the Hong Kong Courts" by Tsz-shan, Wei, 韋子山, was obtained from The University of Hong Kong (Pokfulam, Hong Kong) and is being sold pursuant to Creative Commons: Attribution 3.0 Hong Kong License. The content of this dissertation has not been altered in any way. We have altered the formatting in order to facilitate the ease of printing and reading of the dissertation. All rights not granted by the above license are retained by the author. Abstract: Abstract of thesis entitled Law and Language: Problems of Meaning and Interpretation in the Hong Kong Courts submitted by Wei Tsz Shan for the degree of Master of Philosophy at the University of Hong Kong in November 2000 When we talk about legal disputes in law cases, all of them can be generalized as the question: does 'X' fall within the meaning of 'Y'?; that is, they can be understood as questions of 'categorization'. A legal judgment is actually a decision of categorizing a factual scenario (i.e. the alleged act) into a 'category' (i.e. the provision of a statute). If the act of the defendant (i.e. X) is considered by judges (or the jury) as falling within the provision of the statute (i.e. Y), the defendant shall be convicted. In considering whether 'X' (i.e. a concept, an event or an object) is 'Y', the legal practitioners have to know the meaning of 'X' and 'Y'. However, it is not easy to clarify what do 'X' and "Y' mean. Lord Reid's remarks, 'Normally, the meaning of words, is a question of law for the courts' and 'the meaning of an ordinary word of the English language is not a question of law', can be perceived as a precise description of the problems of meaning in legal interpretation. Language is intrinsically indeterminate. The legal practitioners are working with the problems of ambiguity and vagueness, open texture of words and penumbra of uncertainty, and blurred word boundaries etc. The adoption of different interpretive approaches and other factors, such as habitual collocation, legislative intents and intended social effects, authenticity of the two language texts and hierarchical structure of the courts will also contribute to the complexity of interpretation. i Under a monolingual legal system, legal practitioners normally have to face the problems of meaning of one language only. Under a bilingual (or multi-lingual) legal system, with the addition of one (or more) language(s), they have to face, at least, one more problems i.e. translatability, which will complicate the job of legal interpretation. In Hong Kong, because legal bilingualism is practised, both the Chinese and the English language texts are equally authentic. Neither text shall prevail over the other. If discrepancies in meaning exist between the two language texts, reconciliation has to be found. The problems of translatability will not only aggravate the already-existing problems of legal interpretation, but also create more. Two approaches: the dictionary and prototype theory have been employed to see if they can, or cannot, help to deal with the problems of meaning in law. The dictionary and prototype theory have been selected because the former serves the purpose of defining meanings; the latter is concerned with classification. Seven court cases have been selected as the testing grounds for the contribution of these two means. Six of them took place in Hong Kong and one is from the jurisdiction of the United States. The focal points of discussion of this thesis are (1) how word meanings are interpreted in different legal contexts; (2) what problems of interpretation will be; and (3) whether the dictionary and prototype theory have a role to play in solving problems of legal interpretation. ii DOI: 10.5353/th_b2973969 Subjects: Law - China - Hong Kong - Interpretation and constru