It's not right seven people can send someone to prison for life

Colonial make-do-and-mend approach to Hong Kong's juries must finally be properly repaired

PUBLISHED : Tuesday, 24 June, 2014, 4:25am
UPDATED : Tuesday, 24 June, 2014, 4:25am

The issue of the size of Hong Kong juries - just seven people, usually, and why it should be reformed is one that needs further comment.

When the common law system was imposed upon Hong Kong in the mid-19th century, it was out of the British belief that it was something of value that the world should be pleased to share. There was a large degree of truth in this. Part of that common law system, which included the criminal justice system, was the jury.

However, it gave rise to a problem that persisted until the 1990s. All criminal trials were conducted in English, so all jurors, until then, had to speak and, presumably, understand, English.

The pool must have been very small at first, and never became huge. Therefore, a typical British make-do-and-mend compromise was reached: Hong Kong would have the benefit of the jury system, but with a reduced number of jurors.

Later, when everyone learned English in school, potential jurors were busy making money or being wage slaves. No one, as far as I am aware, wanted to rock the fiscal boat by increasing the number of jurors and therefore taking what would be regarded as too many people out of productive employment for too long. Seven had served for many years and could and should continue to serve.

Realistically, jury service is not overwhelmingly popular anywhere or at any time. In 1847, members of one jury complained to the Chief Justice about being taken away from their businesses to deal with "trifling cases". But, it is necessary.

However, one facet of the criminal justice system we have to consider is the degree of public confidence it enjoys or does not enjoy. People seem to be concerned about it if they are ever, rightly or wrongly, facing a criminal conviction. So, those responsible for the system should always bear in mind the quality of the system and whether public confidence is deserved and enduring.

Objectively, can there be sufficient confidence in a system where a person can be sent to prison for life based on the decision-making of only seven people? In fact it might only be five people - a matter I shall discuss another time.

Is there any good reason now to restrict the numbers on juries to seven? If the pool should be widened - and it should, as suggested by law professor Simon Young Ngai-man - why not the number of persons on each jury? Several countries have juries of fewer than 12, but it is the 12 of the common law world that seems to command the most respect and confidence.

Let us be realistic, however. There might be uproar from employers if there is too much of an increase. There might also be anger from employees - as well as the self-employed, although they enjoy job protection for jury service. A sensible compromise might be to have a jury of nine.

Reforms based on political changes are nothing unusual; it used to be the case that women and non-Christians could not serve on juries. Raising the number to nine is a minor change, but could enhance support for and confidence in the concept of a jury.

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