Our legal system has to move forward

PUBLISHED : Monday, 05 October, 2009, 12:00am
UPDATED : Monday, 05 October, 2009, 12:00am

The Basic Law upholds the principle of trial by jury. But this right is unavailable to defendants in the District Court. They face trial before a judge alone who can hand down jail sentences of up to seven years.

When the court was established in 1953, the pool of jurors was considered too small to undertake the extra workload. As a result, people who up until then would have appeared before a jury in a higher court were deprived of this right.

The Basic Law maintained the status quo, leaving the question to Hong Kong to determine for itself. Meanwhile, changing circumstances have undermined the original arguments against juries in the District Court.

Trial by jury remains fundamental to our system of justice. Many feel it is time the question of extending it was reopened.

The pool of jurors was once so small because they had to be proficient in English and meet a certain level of education. Since the English requirement was dropped, the pool has grown from 20,000 in 1995 to nearly 470,000 in 2006. Meanwhile, nearly half of District Court criminal trials are now heard in Chinese.

The educational hurdle remains, though more people clear it and even more will do so as education reforms work their way through the system.

Supporters of the present jury system argue that this leads to more sensible verdicts. But it does not always result in people being tried before juries of their peers - people from a similar background to themselves.

It is also argued that this makes juries more conservative - and more likely to convict.

Hong Kong does appear to have a high conviction rate, both by juries in the Court of First Instance and judges in the District Court. But this is measured by broad statistics, which do not take into account guilty pleas or acquittals on some charges.

The conviction rate was highlighted recently by one of the city's most senior criminal barristers, who even compared it to North Korea's. This earned a rebuke from the chief justice and the director of public prosecutions, but the controversy did no harm to the case for closer scrutiny of the criminal justice system.

The chairwoman of the Legislative Council panel on administration of justice and legal services, Margaret Ng Ngoi-yee, plans to list the question of the use of juries in Hong Kong for discussion by lawmakers in the coming legislative year. They should not pass up the opportunity.

Legco has not seriously debated the issue since 1997, when it was suggested that because Chinese would now be used in courts and English-language proficiency would no longer be a requirement for jury service, jury trials should be extended to the District Court,

A number of factors have to be considered. For example, introducing juries could lead to longer trials in already overworked district courts and extended waiting lists of cases. Justice delayed can, after all, be justice denied. There will also be extra costs.

Hong Kong is fortunate to have an independent and impartial judiciary and reputation for fair resolution of court cases. Its legal system has stood the test of time and tumultuous change. But while the law evolves and changes with the values and perspectives of society, the underlying principles of our legal system do not change and must be upheld and strengthened. Treasured among them is the right to trial by jury.