Five good men and true? It doesn't inspire confidence | South China Morning Post
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LETTER OF THE LAW

Five good men and true? It doesn't inspire confidence

Hong Kong's jury system worryingly allows for as few as five jurors to decide a criminal case

PUBLISHED : Tuesday, 17 June, 2014, 3:36am
UPDATED : Tuesday, 17 June, 2014, 3:36am
 

Depressing though it might be, for lawyers to acknowledge the political situation of any state is more important than the law. Respect for the "rule of law" within any system is dependent, even parasitic, on the prevailing political beliefs and the balance of powers within that system. Many states have wonderful-sounding constitutions, a legal document, but terrible regimes - a political reality.

Britain had a fairly high degree of respect for rights and law for many years, with hardly any written constitutional guarantees at all. All states are created out of the history of how they got where they are and the real politics of where that is.

Hong Kong is no different. We have a good legal system because of our colonial history.

But, that same history has resulted in flaws within the criminal justice system. In my view and, it seems, in others' too (see law professor Simon Young Ngai-man's words in "Call for increase in pool of jurors", May 10), the jury is a major concern.

Support or antipathy for the jury system and the extent of the use of juries is a matter of political and/or social opinion. On the whole, liberals, democrats and populists strongly favour the jury system and endeavour to support and extend it. Authoritarians, bureaucrats and those who are not confident in the ability of ordinary people to decide questions of fact are sceptical or hostile towards it. Conservatives can be confused here.

The jury is a tradition of common law dating back to the very roots of Scandinavian and British society, so it should be supported. On the other hand, juries sometimes make decisions that those in authority do not like, so the system should be treated with suspicion.

For my part, I regard it as the one true expression of democracy in Hong Kong. There are no special interests on a jury. All votes are equal and secret and no one can interfere with or criticise that vote. It is also desirable ordinary Hongkongers have some say in the criminal justice system and it is not seen as a lawyers' monopoly, which it very nearly is. The vast majority of criminal cases are dealt with by judges alone in the magistrates' or district courts. This is no guarantee of a just or accurate outcome.

Still, questions over the jury have concerned me since I arrived in Hong Kong. Why are there only seven members, and occasionally nine? Why is it that, according to the Jury Ordinance, the number can go down to five? Why is a majority verdict so easy to arrive at? Why is the pool of potential jurors so small?

The answers appear to lie in pragmatic and historical issues arising from the development of the jury system here in the 19th century. Decisions were made on an ad hoc basis that have real consequences today.

The normal jury size in Scotland is 15, while in England, New Zealand and Canada it is normally 12. In other common law countries such as India and South Africa, there are no juries in any criminal cases. In a United States Supreme Court decision (Williams v Florida) and an Australia Supreme Court case (Brownlee v R.), it was held that 12 jurors were not mandatory. So, despite the religious nature of the number 12, it is not sacrosanct. But, in both countries, 12 remains the norm.

In Hong Kong, a well-educated, sensible jurisdiction, surely seven is not a number to inspire enough confidence in the decision-making process to make us comfortable.

Andrew Raffell is a consultant at Chinese University and has been a practising criminal barrister in Hong Kong for 26 years

 

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