Jury system in Hong Kong

The practice of trial by jury has a long history in Hong Kong.[1] Like most jurisdictions with jury trial, this tradition was introduced into Hong Kong when it became a British colony. The Ordinance for the Regulation of Jurors and Juries was first enacted in 1845. Ever since then, the practice of trial by jury has been important part of Hong Kong’s judicial system. This is also recognised in the Basic Law, Article 86: "The principle of trial by jury previously practised in Hong Kong shall be maintained."

Criteria for service as a juror

Section 4 of the Jury Ordinance provides the criteria for service as a juror.[2]

  • must be a Hong Kong resident
  • aged 21 to 65
  • of good character
  • sound mind
  • not afflicted by blindness, deafness or other disability preventing from serving as a juror
  • has a sufficient knowledge of the language in which the proceedings are to be conducted

Consequences for failing to discharge jury duty

The Jury Ordinance also places a legal duty for those who are qualified under the prescribed criteria to serve as jurors. Those who fail to serve as jurors in a court proceeding without approval may face charges of contempt of court. In 2007, a juror was found guilty of contempt of court and sent to jail for three weeks for faking incapacity.[3] In addition, under Section 32 of the Jury Ordinance, it is an offence for those who fail to attend in response to a summons to juror.[4]

Protection

In order to protect jurors from unfavourable employment consequences, Section 33 of the Jury Ordinance forbids employers from discriminating against any of their employees who has served or is serving as juror in any court proceedings. Any person who contravenes Section 33 is guilty of an offence and liable to a fine of $25,000 and to imprisonment for 3 months.[5]

Exemptions

Anyone in any one of the following categories is exempt from serving as a juror.[6]

  • judges
  • certain categories of public servants
  • full-time students
  • certain categories of religious ministers
  • newspaper editors and staff
  • lawyers
  • doctors, dentists and veterinary surgeons
  • those who have received approval of exemption from the Registrar or the judge

The precise list of exemption categories is provided in Section 5 of the Jury Ordinance.

Compensation

Once selected to serve as a member of the jury in a case, a juror is paid in accordance with Section 31 of the Jury Ordinance for each day during the whole or part of which the juror serves.[7]

Empanelling the jury

List of jurors

Each alternate year, following the details in the Jury Ordinance, the Registrar of the High Court makes a provisional list of jurors and inform them that they have been selected and asked to serve as jurors. If any of the potential jurors want to be excused from serving and have good reasons for that, they should contact and apply for exemption with the Registrar within two weeks from the time when they receive the notice of service. Moreover, the Registrar publishes the list of jurors in the Gazette and in one English and one Chinese newspaper.

Number of jurors

Provided in Section 25(4) of the Jury Ordinance, the jury shall consist of not less than five persons in any civil or criminal trial or coroner's inquest.[8] Accordingly, criminal cases are normally tried by a seven-person jury. From time to time, at the discretion of the judge, a jury may increase in size to nine jurors.[9]

Random selection

According to Section 13 and 21 of the Jury Ordinance, each potential juror is assigned a number. The Registrar is then to print the number on separate cards of equal size and put into a box. Afterwards, in open court, the Registrar draws cards from the box until a jury is formed.[10][11]

Challenge

The accused person can challenge and dismiss a juror for good cause. In addition to the unlimited number of challenge of juror for cause, the accused person is granted the power to challenge and dismiss up to 5 jurors without any reasons (peremptory challenge). However, the Secretary for Justice, who prosecutes the accused and initiates the criminal proceeding, also has the right to challenge and dismiss a juror for cause but no right to give pre-emptive challenge.

In the Donald Tsang case, a candidate juror (a man) applied for exemption (take care of baby after midnight). Initially the Judge refused his application, but later the defence lawyer opposed the appointment of that candidate juror. This example proves that the ultimate veto power lies on the defence.[12]

History and development

1845

The Ordinance for the Regulation of Jurors and Juries was enacted. The Ordinance stated that "all questions of fact, whether of a civil and criminal nature upon which issue shall be taken in the course of any proceeding before the Supreme Court ... shall be decided by the verdict of a jury of six men."

This was the very first piece of local legislation to formally introduce and regulate the jury system in Hong Kong. The jury system in Hong Kong has changed and evolved through time; and it is quite different from the one implanted in 1845.

1858

For the very first time in history, the name of a Chinese Hong Kong resident, Wong A. Shing, showed up on the list of jurors. The Legislative Council had a special meeting over the issue and reached the result of retaining the name and adopting the list. A year later, the Legislative Council had a debate over the same issue and reached the same result after voting on the matter.[13]

Notes
  1. Koo F. (2010). Power to the people: Extending the jury to the Hong Kong’s District Court. City University of Hong Kong Law Review, 2, 301-329.
  2. Jury Ordinance, §4 Qualifications and disabilities
  3. Lee, Diana (21 December 2007), "Juror jailed for faking incapacity", The Standard, archived from the original on 29 June 2011, retrieved 21 December 2011
  4. Guide to Court Services: Jury, Judiciary of the Hong Kong Special Administrative Region of the People's Republic of China, 8 May 2009, retrieved 21 December 2011
  5. Jury Ordinance, §33 Punishment of employer discriminating against employee by reason of jury service
  6. Jury Ordinance, §5 Exemptions from service
  7. Jury Ordinance, §31 Payment of jurors
  8. Jury Ordinance, §25 Death or discharge of juror
  9. Jury Ordinance, §3 Number of jurors on trial
  10. Jury Ordinance, §13 Formation of panel of jurors
  11. Jury Ordinance, §21 Ballot for jury
  12. "Lam, Tang head list of 43 witnesses for Tsang trial". The Standard (Hong Kong). 10 January 2017.
  13. Duff et al. 1992

References

See also
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