The following is the full text of the speech delivered by the Hon Chief Justice Andrew Kwok-nang Li at the Ceremonial Opening of the Legal Year 2010 on January 11:
以下是香港终审法院首席法官李国能1月11日在2010年法律年度开启典礼上发表的致辞全文：
CJ's Speech at Ceremonial Opening of the Legal Year 2010
香港终审法院首席法官2010年法律年度开启典礼致辞
Secretary for Justice, Mr Chairman, Mr President, Distinguished Guests, Ladies and Gentlemen,
律政司司长、大律师公会主席、律师会会长、各位嘉宾：
On behalf of all my colleagues in the Judiciary, I would like to welcome all of you warmly to this Opening of the Legal Year. I thank you sincerely for your support by your presence. This is the 13th and the last address which I have the honour of giving at this event.
我谨代表司法机构全体人员，热列欢迎各位莅临本年度的法律年度开启典礼，并衷心感谢在座各位出席支持。本人在法律年度开启典礼上致辞，实感荣幸；这是我上任以来第十三次，也是最后一次在这典礼上致辞。
This year, we are particularly honoured by the presence of a number of distinguished visitors, including Vice-President Wan Exiang of the Supreme People's Court; Mr Zhang Fusen of the Chinese People's Political Consultative Conference; Chief Justice Zaki Azmi of Malaysia; Chief Justice Spigelman of New South Wales and judges from various jurisdictions attending the Commercial Litigation Seminar; and the leaders of the legal profession from the Mainland, Macau, Taiwan, France, Korea and the Philippines. I would like to welcome all of them to Hong Kong and to thank them for their attendance.
今年承蒙多位贵宾光临，倍感荣幸。当中包括最高人民法院万鄂湘副院长；全国政协张福森常务委员；马来西亚Zaki Azmi首席法官；新南威尔士Spigelman首席法官及来自多个司法管辖区的法官，他们行将出席在香港举行的商业诉讼研讨会；以及来自内地、澳门、台湾、法国、韩国及菲律宾的法律界领袖。我向他们表示热烈欢迎，并感谢他们出席典礼。
Judicial Independence
司法独立
It is now over 12 years since Hong Kong entered the new constitutional order as part of China under the principle of "one country, two systems". During this period, judicial independence has been universally recognised and accepted to be of pivotal importance to Hong Kong. The constitutional guarantees for an independent Judiciary have been fully implemented. Further, conventions and practices which accord with judicial independence have developed.
香港在“一国两制”的新宪制秩序下回归中国，至今已超过12年。在此期间，各方面已广泛认同和接受司法独立对香港是极其重要。宪制上，对司法独立的保证已全面落实。此外，与司法独立相符的惯例及做法亦已形成。
It is essential to judicial independence that the process of judicial appointment should never be politicised. In our jurisdiction, it has not been politicised and I trust that it will never be. This includes the endorsement process in the Legislative Council for the most senior judicial appointments.
司法任命过程绝不应政治化，这一点对司法独立，至为重要。在我们的司法管辖区，司法任命过程从不政治化，我深信日后亦会如此。立法会在同意最高级别司法人员任命的过程中，亦当如是。
I am glad to see that the Legislative Council has adopted a procedure for dealing with endorsement which ensures that whilst enabling it to discharge its duty, the process is not politicised. I am confident that the Council will continue to deal with the process of endorsement without politicising it.
我乐见立法会就考虑同意司法任命的事情上，已采纳既定程序，确保其在履行职责时，过程不会政治化。我有信心，将来立法会在考虑同意司法任命的事宜时，必定会一如以往，不会让过程政治化。
Role of the Judiciary
司法机关的角色
Each jurisdiction has its own constitutional arrangements distributing power between the executive, legislative and judicial branches and providing for the relationships between them. The arrangement for each jurisdiction reflects its own history and its own circumstances. The arrangement for one jurisdiction may not be appropriate for another.
每一个司法管辖区都有各自的宪制安排，分配行政、立法与司法机关的权力，以及三者的相互关系。每一司法管辖区的安排，均反映本身的历史背景及本身的情况。一个司法管辖区的安排，对另一管辖区而言，未必适合。
It is important for the role of the independent Judiciary in Hong Kong to be reiterated and strongly emphasised and for its role to be clearly understood. The Hong Kong's system involves checks and balances between the Executive, the Legislature and the Judiciary. The independent Judiciary has a vital constitutional role to ensure that the acts of the Executive and the Legislature comply fully with the Basic Law and the law and that our fundamental rights and freedoms, which are at the heart of Hong Kong's system, are fully safeguarded.
对香港而言，一个独立司法机关所担当的角色，须予以重申及强调，并为各界清晰理解，这是很重要的。在香港的制度下，行政、立法和司法机关互相制衡。在宪制上，独立的司法机关肩负重要任务，确保行政、立法机关的运作完全符合《基本法》和法律的规定，以及确保市民的基本权利和自由得到充分保障。这些基本权利和自由正是香港制度的精义所在。
Everyone, including all organs of government and all public officials, are subject to and equal before the law. The Judiciary is and must be seen to be impartial. Judges resolve all disputes, whether between citizens or between citizen and government in an impartial manner.
法律之前，人人平等。我们必须遵守法律，所有政府机关及全部公职人员均须如此。司法机关不单要不偏不倚，还要让人得见我们行事是不偏不倚的。法官审理纠纷，不论是市民之间，或是市民与政府之间的纠纷，均以不偏不倚的态度作出裁决。
In dealing with cases involving the Executive or the Legislature, Judges adopt neither a confrontational approach nor an approach designed to favour them. They simply administer justice without fear or favour. So where the Executive or the Legislature is successful in a case, this is not the result of the court seeking to favour them. Equally where a judgment goes against the Executive or the Legislature, the court is not seeking to confront them. In either case, the court is simply discharging its constitutional duty of adjudicating the dispute fairly and impartially.
在处理涉及行政或立法机关的案件时，法官既不采取对抗态度，亦不刻意偏袒任何一方。法官的职责是执行司法工作，无惧无偏。若行政或立法机关胜诉，这不是因为法庭有意偏袒。同样，若判行政或立法机关败诉，也不是因为法庭有意对抗。无论判决如何，法庭都只是履行宪法职能，公平公正地审理案件。
Judicial review
司法覆核
A major development in the legal landscape since 1997 has undoubtedly been the growth of judicial review. Excluding the right of abode cases, 116 applications for judicial review were filed in 2001. In 2005, the number had grown to 149. In the last few years, the number ranged from 132 in 2006 to 147 in 2008. In 2009, 144 applications were filed.
自1997年以来，法律环境的其中一项重要发展，无疑是司法覆核案件的增加。撇除居港权案件，2001年共有116宗司法覆核申请，至2005年已升至149宗。过去数年，司法覆核申请的数目介乎2006年的132宗至2008年的147宗。2009年，入禀的司法覆核申请共有144宗。
This is a common phenomenon in many common law jurisdictions. I have previously explained publicly the factors which have led to it in the Hong Kong context: the growth in the volume of legislation to deal with an increasingly complex society, the enactment of the Bill of Rights and the Basic Law and the greater awareness on the part of citizens of their rights. I have also previously made clear that the court's role on judicial review is only to define the limits of legality. And that the solution to political, social and economic problems cannot be found through the legal process and can only be found through the political process.
这个现象在许多普通法适用地区亦属常见。我在此之前已公开?明，引致香港社会出现这个现象的因素包括：随社会日趋复杂，法例的制定也日见繁多；还有是《人权法案》及《基本法》的制定；此外，社会各界对公民权利的意识亦日渐提高。我亦早已表明，法庭在司法覆核程序的职能，仅是厘定合法性的界限。政治、社会或经济问题，只能经由政治过程，而非通过法律程序去谋求解决办法。
It is interesting to examine the figures in the last two years. In 2008, 147 applications for judicial review were filed. Leaving aside those which had been withdrawn and those which were still pending at the end of the year, 130 applications were dealt with. Leave was granted in 66 cases and refused in 64 cases, that is, 49%. The picture for 2009 was not materially different. Of the 119 cases dealt with, leave was granted in 63 cases and refused in 56 cases, that is, 47%.
过去两年的数字值得我们探讨。2008年入禀的司法覆核申请有147宗。除却其后撤回及截至年底尚未判决的申请，已处理的个案共有130宗；其中66宗获法庭给予许可以进行覆核，其余64宗（即49%）则被拒绝给予许可。2009年的情况与此相去不远。在已处理的119宗司法覆核申请当中，63宗获给予许可以进行覆核，而被法庭拒绝给予许可的有56宗（即47 %）。
So, in the past two years, a substantial number of applications for judicial review were refused at the initial leave stage because they failed to meet the threshold test of a reasonably arguable case laid down by the Court of Final Appeal in November 2007. These figures provide food for thought and the community may consider it worthwhile to reflect on them.
由此可见，过去两年有很多司法覆核申请，早在法律程序最初的“申请许可阶段”即被拒绝，原因是该等申请未能符合由终审法院于2007年11月所设定“合理争辩的申索”的门槛。这些数字也许值得社会各界思考。
The Court of Final Appeal
终审法院
Over the last 12 years, the Court of Final Appeal has been functioning smoothly. The Court is now hearing about 40 appeals a year and dealing with about 150 applications for leave to appeal, of which about 50-60% are disposed of on the papers without a hearing.
终审法院在过去12年一直运作畅顺。法院现时每年聆讯约40宗上诉，以及处理约150宗上诉许可申请，其中约有50-60%的申请是根据文件处理，而毋须进行聆讯的。
The participation of one non-permanent overseas judge in the collegiate court of five judges drawn from a panel of eminent judges from Australia, New Zealand and the United Kingdom has worked well. Of course, as is well appreciated by the overseas judges, when they sit on the Court, they function as and only as Hong Kong judges in Hong Kong's own circumstances under "one country, two systems". I am delighted to have on the platform today as part of our Judiciary, Sir Anthony Mason, the former Chief Justice of Australia, who has made such a signal contribution to our Court.
终审法院合议庭由五位法官组成，包括一位海外的非常任法官，这做法一向运作良好，这些海外的非常任法官是澳洲、新西兰及英国的著名法官。当然，来自海外的法官深明，参与终审法院的聆讯时，他们是在“一国两制”下的香港，履行香港法官的职责，亦仅限于香港法官的职责。今天，前澳洲首席法官梅师贤爵士，以我们司法体系一员的身份，一同在台上参与典礼，我实感高兴。梅师贤爵士对终审法院，实在贡献良多。
The Court is a relatively young court and we have much to learn. The Court's jurisprudence has been increasingly cited in other common law jurisdictions. I would venture to suggest that it has made good progress in establishing its stature.
相对来说，终审法院仍是一个比较新的终审法院，还需进一步累积经验，但终审法院在法理方面的论述，已日渐广为其他普通法适用地区援引。我敢说，终审法院在建立其地位的过程上，已取得良好进展。
Planning work is proceeding on the relocation of the Court to the present Legislative Council Building. Renovation works cannot start until the Council moves and the relocation may be made in around 2014. The Building will presumably be the Court's permanent home and in order to ensure that the people of Hong Kong can be justly proud of it, we should make haste slowly in getting it ready.
终审法院迁往立法会现址的策划工作已经展开，至于修建工程，则须待立法会迁出方可进行。预计终审法院可于2014年左右搬迁，相信这会是法院的永久院址。正因如此，我们必须周详筹划，让大楼设施完备，使香港市民以此为荣。
I for one shall be nostalgic for the French Mission Building where the Court spent its formative years and which holds so many memories of the challenges during my tenure. But it will be time to move on.
日后，我定会怀念这座前法国外方传道会大楼，这个地方毕竟见证了法院的成长，还载有我在任?经历挑战的回忆。然而，我们都总是要迈步向前。
Judges
法官
The approximately 180 judges in the Judiciary have a strong collegiate spirit. In the last 12 years, we have recruited good talent from the legal profession at the magisterial, District Court and the Court of First Instance levels. I am pleased that the number joining at the higher levels has increased and that we have developed some momentum in this regard. And I am glad that we also have good judges who have the potential of advancing to higher levels.
我们约有180位法官，他们秉持司法机构的理念，同侪共事。过去12年，我们罗致法律界优秀人材，出任裁判法院、区域法院及原讼法庭法官。我喜见有更多法律界优秀人材出任较高级别法院法官，而且已成趋势。同时，我亦乐见司法机构也不乏优秀人材，他们具备潜质可升任较高级别法院的法官。
But whatever position the Judge occupies in the Judiciary, his or her work is essential and makes an important contribution to the administration of justice. The work of supporting staff in Judiciary administration is also important and is greatly appreciated.
然而，法官无论在司法机构身居何职，他们每一个人的工作，对秉行公正，都各有重要贡献，不可或缺。此外，司法机构政务处支援人员的工作亦属重要，对他们的表现，我深表认同。
Judges are deeply conscious of the community's high expectations of the Judiciary. It is of fundamental importance that judges should observe the highest standards of conduct. I am glad that we have developed the Guide to Judicial Conduct and have operated a proper system for dealing with complaints against judges' conduct.
法官深明社会大众对司法机构抱有殷切的期望。法官在行为上应当严守至高标准，这点极为重要。我乐见司法机构已为此订下法官行为指引，并施行适当机制，处理关于法官行为的投诉。
Exchanges with other Jurisdictions
与其他司法管辖区的交流
Under "one country, two systems", it is of course important that Judges in the Mainland and Hong Kong have a mutual understanding of each other's system and the differences between them. In the last 12 years, we have made great efforts to develop this through conferences, visits, courses and the like. As the only common law jurisdiction in China under "one country, two systems", it is equally important that Hong Kong continues to maintain its links with leading common law jurisdictions through similar activities.
在“一国两制”下，内地与香港法官对两地制度，以及彼此的差异都应相互了解，这一点当然重要。过去12年，我们一直致力举办会议、互访及研讨课程等活动，促进彼此交流。另一方面，香港是“一国两制”下中国境内唯一的普通法司法管辖区，我们透过同类交流活动，与其他主要的普通法适用地区继续维持联系，亦同样重要。
The Legal Profession
法律专业
A competent and independent legal profession is of crucial importance to our community and is indeed essential to the functioning of an independent Judiciary. Conditions in the profession are increasingly competitive. But whilst efficiency is necessary, ultimately, the practice of law cannot be treated merely as a business. It is an honourable profession with high ethical standards and with ideals of service. All lawyers should contribute their fair share to service of the profession and public service. They should also do their part to develop pro bono services which are much needed.
称职而独立的法律专业，对香港社会至为重要，对司法机构的独立运作，更是不可缺少。业内竞争日趋激烈，维持高效率固属必需，但法律执业始终不能仅视为商业活动。法律专业是一门崇高的职业，执业者必须维持高专业道德操守，并以服务社会为理想。所有律师都应为其专业及社会，并为推动需求殷切的义务法律服务，作出贡献。
The long standing issue of higher rights of audience for solicitors has been satisfactorily resolved with the support of all stakeholders. The necessary legislation will soon be enacted and will be brought into force later this year. The Higher Rights Assessment Board to be chaired by a judge will then be established. I am confident that the Board will ensure that whilst widening the choice of advocates for users, high standards of advocacy will be maintained.
律师在较高级别法院出庭发言权的问题，讨论已久，现终能在有关各方支持下，取得令人满意的成果。所需的法例快将制定，并将于今年稍后施行。届时，较高级法院出庭发言权评核委员会亦会成立，将由一位法官出任主席。我有信心，委员会定能确保日后有更多出庭代讼人可供选择，同时，庭上讼辩的高水平亦得以维持。
This issue was first raised by the Law Society well over a decade ago. Although it had taken some considerable time to settle, it has been worthwhile to take time to evolve a consensus solution.
赋予律师较高级法院出庭发言权一事，早于十多年前由香港律师会首先提出，虽然最近才有定论，但最终能达成凝聚共识的解决方案，讨论经年，亦有所值。
Civil Justice Reform and Mediation
民事司法制度改革及调解
Civil Justice Reform has been a major exercise. Under the leadership of the Chief Judge of the High Court and with the support of judges and supporting staff, its implementation in April 2009 went smoothly. But it will take some time for the Reform to fully settle in. A central feature is active case management by the court. In due time, this will bring about a change of culture in the conduct of litigation which would increase cost-effectiveness and ensure expedition. Another key feature is the facilitation by the court of the settlement of disputes by encouraging parties to engage in mediation. The relevant Practice Direction came into force on 1 January. It is expected that mediated settlements satisfactory to the parties will significantly increase. A Committee chaired by the Chief Judge is monitoring the working of the reformed system.
民事司法制度改革是大型的改革工作。在高等法院首席法官领导，及其他法官和支援人员协助下，民事司法制度改革已于2009年4月顺利实施。然而，要完全稳固改革后的制度，仍需要一段时间。积极的案件管理是改革的重点。假以时日，这将改变我们的诉讼文化，从而提高成本效益，并确保案件得以迅速处理。另一特点是由法庭藉鼓励争议各方采用调解来解决纠纷。有关的实务指示已于1月1日生效。通过调解而圆满解决纠纷的个案，预期会显著增加。至于改革后制度的运作，现正由高等法院首席法官担任主席的委员会监察有关情况。
Access to Justice
寻求公道
As we stand at the threshold of the second decade of the 21st century, our judicial system faces the major challenge of seeking to ensure access to justice for all. The rich and the big corporations may be able to afford to litigate. Those with low income are eligible for legal aid. But the bulk of the population, including small and medium enterprises, find it difficult to afford the legal fees involved in litigation.
踏入廿一世纪一○年代，本港司法制度面对的重大挑战是，如何使人人均可向法院寻求公道。富有的人和大公司或能负担讼费，低收入人士也符合申领法律援助的资格，但社会上大部份人，包括中小企业，却难以负担诉讼所招致的法律费用。
To maintain the Judiciary's impartiality, our Resource Centre for Unrepresented Litigants can only assist on procedure but cannot provide legal advice. There is no magic wand which can be waved to solve the problem. A number of measures are necessary to alleviate the situation, including making procedures less complex, the availability of pro bono services and the use of mediation.
为保持中立公正，司法机构的无律师代表诉讼人资源中心只能就程序事宜给予协助，并不能提供法律意见。要纾缓有关情况，不能一蹴即就，我们要采取简化程序、提供义务法律服务及采用调解等措施，多管齐下。
Public resources are inevitably limited. But one area where they could be usefully employed is to provide citizens with the opportunity of obtaining legal advice at an early stage so that a dispute could either be avoided or resolved speedily. Everyone in the legal community should be concerned with and should contribute to meeting the challenges involved in ensuring access to justice for all.
公共资源无疑有限。要公共资源用得其所，其中一个方法是为市民提供机会，好让他们在纠纷最初阶段获得法律意见，从而使纠纷得以避免或迅速解决。要确保人人均可向法院寻求公道，当中会涉及种种挑战，法律界人士均应责无旁贷，致力面对挑战，并为此作出贡献。
Conclusion
结语
Since I shall only be stepping down at the end of August, I shall not be bidding farewell now. This will be done at a farewell sitting in the Court of Final Appeal in July.
我于八月底才离任，所以不在此跟各位道别，还是留待七月我在终审法院的仪式时，才与各位话别。
On this occasion, I shall only say that it has been the greatest honour of my life to serve as your Chief Justice and to be given an opportunity to contribute at this dawn of the new constitutional order of Hong Kong as part of China under "one country, two systems".
今天，我只想说：香港在“一国两制”下回归中国，在新宪制下，我出任香港终审法院首席法官，有机会在这新时代出一分力，是我一生的最高荣誉。
It remains for me to wish you on behalf of all my colleagues in the Judiciary good health and every happiness in the new year. Thank you.
最后，我谨代表司法机构全体人员，祝愿各位身体健康、新年快乐！多谢各位！
