Lawyers hope to reopen debate on jury system

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

Lawyers hope to reopen the debate on introducing juries to the District Court as part of an attempt to stimulate greater discussion about the criminal justice system in Hong Kong.

There is a growing sentiment among criminal lawyers that the system needs closer scrutiny and review.

Recently one of the city's most senior barristers wrote of the high conviction rate as 'probably approaching that of North Korea'.

Chief Justice Andrew Li Kwok-nang labelled the remark an 'ill- considered and intemperate outburst', but criminal lawyers are hoping the controversy will bring greater scrutiny of the justice system.

The Bar Association and the Law Society formed a joint specialist committee last week to seek information and consider the matter further.

Article 86 of the Basic Law states that 'the principle of trial by jury previously practised in Hong Kong shall be maintained'. But the Court of First Instance ruled last year that whatever principle applied in relation to jury trials before the Basic Law came into effect would apply. Since there had never been a right to jury trials in the District Court, residents cannot now claim such a right.

The District Court is empowered to sentence offenders to a maximum of seven years in jail. But whether the case is heard in the Court of First Instance, where there are trials by jury, or in the District Court, where there is a single judge, is up to the secretary for justice to decide.

The secretary for justice's prerogative has been subject to a constitutional challenge as violating the concept of separation of powers. But that was dismissed last month on a technical issue, without the court ruling on the constitutional arguments.

The director of the Basic Law Institute, Alan Hoo SC, said he believed people had a right to jury trial - a fundamental common-law principle. They were only denied that right in the District Court because the jury pool was not large enough when those courts were established in 1953.

The 1952 bill establishing the District Court said the court was to 'relieve the Supreme Court and the Magistrates of an appreciable amount of work'.

But jury trials in the District Court 'would place a grave additional burden on an already overworked jury list'. According to the legislative minutes, concerns had already been raised that defendants were being deprived of the right to a jury trial.

The issue was discussed in the Legislative Council in 1997 when Martin Lee Chu-ming suggested that since Chinese would now be used in courts and English-language proficiency would be removed as a jury-service requirement, jury trials should be extended to the District Court.

But the issue has not been seriously debated in Legco since.

'There is no common law for the colonies', where the residents do not enjoy the same right to jury trial, Hoo said. 'That right was merely suspended because of logistical reasons,' he said. 'The justification for suspending that right no longer exists.'

A recent Law Reform Commission paper noted that since the abolition of the requirement for English-language proficiency, the jury pool had been enlarged from 20,000 people out of a population of six million in 1995 to 469,500 in 2006, when the population was 6.9 million. According to the judiciary, there were 678,000 people on the jury list on September 1.

According to statistics gathered by the prosecutions department, nearly half of criminal cases in the District Court last year were heard in Chinese.

The chairwoman of Legco's legal services panel, Margaret Ng Ngoi-yee, confirmed she had been approached about the issue. She planned to contact the administration for details and place the issue on the list of items her panel may discuss in the coming legislative year.

Ng said trial by a judge was more for 'historical reasons' that no longer applied. But she recognised that the District Court was already overworked and the administration might feel that creating juries there would extend trial times.

Simon Young, director of the Centre for Comparative and Public Law at the University of Hong Kong, said recent judgments on the right to jury trial had not resolved the question of whether such a right existed in Hong Kong. He noted that having a single judge decide on an offence that could land the accused in prison for seven years was unusual for a common-law jurisdiction.

A judiciary spokesman said it had 'no intention at present to conduct an overall 'criminal justice review'. But the judiciary will continue to review criminal procedure from time to time as and when it is considered appropriate'.

He noted the judiciary had recently consulted the profession on new Practice Directions regarding complex commercial-crime trials, and that the Law Reform Commission was in the process of reviewing jury-service criteria.

Pool of justice

According to the judiciary, the number of people on the jury list on September 1 stood at: 678,000