The case for widening our pool of jurors
The Basic Law rightly preserves the system of trial by jury. In principle, the system - inherited from Britain, where it dates back many hundreds of years - provides for defendants in criminal cases to be tried 'by their peers' - drawn randomly from the community as a whole.
In Hong Kong, however, the jury system does not work in strict adherence to this principle. The law provides that jurors must have sufficient knowledge of the language - in Chinese or English as the case may be - of the court proceedings. In practice, because a Form Seven education is generally considered to be necessary to meet the requirement, juries here typically comprise well-educated people. Many defendants, therefore, are unlikely to feel they are being tried by people from a similar background to themselves. Also, people from certain professions enjoy an exemption from this important civic duty.
Such circumstances have not been detrimental to the rule of law here; while Hong Kong generally delivers more guilty verdicts than other jurisdictions that also follow common law, our juries have a good reputation internationally for understanding the proceedings and reaching decisions based on the evidence. If the system is going to be tampered with, there needs to be a good reason for it.
Nonetheless, legal systems cannot be static and must move with the times. The Law Reform Commission aims to ensure these objectives are fulfilled, and broadening the jury pool is among recommendations it intends to submit to legislators.
Impetus for a review of our jury system began after the findings of a study in England concluded that problems among juries there were best resolved through making fewer professions exempt from duty. Having inherited our legal system from England, we have a similar exemption list - judges, police and pilots among them.
With England having abolished such a system in favour of determining who should be exempt from jury duty on a case-by-case basis, it would be natural that Hong Kong should consider following suit. Our small jury pool would in the process be enlarged, easing the burden on those who already qualify for service.
It must be remembered, however, that the English reforms were the result of problems with juries which have not really arisen in Hong Kong. The exemptions of so many professions meant that the quality of English juries, drawn from a much wider pool than in Hong Kong, was regarded as having been impaired. Allowing the exempted professionals to sit on juries was intended to raise standards. By contrast, it could safely be said that we have 'elite' juries here.
Changing the rules on exemptions would nonetheless be worthwhile. As we report today, the idea that there should be so many exemptions is an odd one. Former principal magistrate Ian Candy makes the valid point that there is no need to exempt police from jury service, for example. But while pruning the list of people who are exempt from serving would be a good step, the reforms should not stop there. Our longer-term objective should be to make as many people as possible eligible for juries.
Given the importance of the rule of law, this cannot be rushed into. Reform has to take place gradually, with each step and its implications carefully considered. Widening the pool of jurors would, inevitably, give rise to practical problems and cost implications which would need to be resolved.
Jury duty is perhaps the most important civic service any member of the community can perform. It ensures that society's legal expectations are met and that citizens have a say in the process.
The commission's planned recommendations move Hong Kong along that path - but the process should not stop there.