For and against: Hong Kong juries on trial

PUBLISHED : Tuesday, 27 October, 2009, 12:00am
UPDATED : Tuesday, 27 October, 2009, 12:00am

A row broke out last month between the city's top barristers and the judiciary over the preface of a widely used law book that compared the city's criminal conviction rates to those of North Korea.

Clive Grossman, general editor of Archbold Hong Kong 2010, said he was concerned about high conviction rates which were 'probably approaching that of North Korea'.

Citing rates of 94.8 per cent in the Court of First Instance and 92.6 per cent in the District Court last year, he wrote: 'An arrested person is, statistically, almost certain to face imprisonment.'

In his preface's conclusion, he added: 'The high rate of convictions ... is founded on the comforting assumption that prosecution witnesses, including the police, ICAC (Independent Commission Against Corruption) and especially accomplices and other immunised witnesses, whatever imperfections may be apparent in the evidence, always tell the truth!'

Grossman's comments have put the way criminal cases are tried in Hong Kong under the spotlight.

Juries are required to sit for criminal cases, but Grossman's concerns hint at the power judges have in deciding what evidence juries hear and how judges interpret the law for them.

The Jury Ordinance was among the earliest ordinances passed in Hong Kong and countless jurors have been summoned and served in courts. The system works under the principle that a person should be tried by fellow members of his/her own community. The aim is to ensure laws are relevant to the community.

As stated in the official jury guideline, it is jurors' responsibility, both to the person on trial and to the community, to ensure justice is done. In a criminal trial, jurors decide, based on the facts, whether the defendant is guilty or not guilty.

The judge interprets the law and decides what evidence the jury can hear. Even though this has been in practice for more than 800 years and is the cornerstone of many legal systems around the globe, it is still far from flawless.

The Jury Ordinance states that any Hong Kong resident, aged 21-65, who is of a sound mind and a good character can be selected for jury service, as long as they possess sufficient knowledge of the language in which the trial is conducted and have no disabilities that prevent them from serving on a jury.

But a long list of professionals is exempted from duty, such as doctors, police, students and anyone whose work duties make them indispensable. Non-English-speaking Hongkongers are exempted from most trials because they are mostly conducted in English.

According to the Jury Ordinance, in Hong Kong, all civil and criminal trials and all inquiries into the unsoundness of mind of any person and the most serious criminal offences (such as murder, manslaughter, rape, armed robbery, certain drug offences and commercial fraud offences) are tried by a judge, with a jury of seven people, or, when a judge so orders, nine. For a death inquest, a jury of five is appointed.

Compared to other developed countries, such as Britain, the United States, Canada and Australia, where a jury is made up of 12 people, Hong Kong's jury system may seem less representative of society. Moreover, in the US, a jury has to be unanimous to convict a defendant, while only a majority is required in Hong Kong.

Another concern is the credibility of the verdict. When the jury has agreed on a verdict, they need not provide any reason for it and although, in some rare cases, the judge can overrule the decision and announce a mistrial, the jury's verdict usually cannot be questioned.

All jurors are assumed to have no prior legal training and sometimes, the presented evidence, like medical reports or financial documents, may be complicated and difficult for non-experts to understand.

Besides, they may find the lengthy and repetitive cross-examination and courtroom procedures too boring to stay attentive to the case.

Although there is a language requirement for jurors, some Hongkongers may not be accustomed to certain foreign accents and this can make it difficult for the jury to judge the case. Some people argue that the trials should be conducted in Chinese.

To achieve a fair trial and justice, the jury should not, at any time, discuss the trial or its deliberations with anyone except their fellow jurors.

They are frequently reminded by judges that they must reach their verdict based on admissible facts presented in the court, and avoid learning about the case from any sources other than the trial, such as the media or the internet.

Even more importantly, they should not attempt to conduct their own investigation by visiting the crime scene or studying the law and previous cases.

Yet, due to the prevalence of detective and legal TV dramas like CSI and Law and Order, many jurors may have some basic concept of the legal system. Although this so-called 'CSI effect' is still under study, and yet to be confirmed, it is believed it may give people unreasonable expectations about scientific evidence and a partial and incomprehensive outlook of the law.

What's more, it is now easy for anyone to look up the names, crime scenes and investigate evidence on their own. But with Google, Wikipedia and Twitter available on our cell phones, completely sequestering the jury from outside resources seems a mission impossible.

Additional reporting by Timothy Chui