Jury system in Hong Kong

Last updated September 05, 2023

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

Legal duty to serve as a juror

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, registrars, barristers and solicitors
justices of the peace
public servants from the disciplined services
full-time students
certain categories of religious ministers
newspaper editors and staff
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] In accordance to the subsidiary legislation of the Jury Ordinance, Allowances to Jurors Order, a juror is currently paid HKD930 for each day served or part thereof.^[8]

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.^[9] 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.^[10]

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.^[11]^[12]

Strikes

The accused person can challenge and strike a juror for good cause. In addition to the unlimited number of strikes to use on jurors with cause, the accused is granted the power to challenge and strike up to 5 jurors without any reason (peremptory challenge). However, the Secretary for Justice, whose office prosecutes the accused and initiates the criminal proceedings, also has the right to challenge and strike 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 in order to take care of a baby after midnight. Initially the judge refused his application, but later the defence lawyer opposed the appointment of that candidate juror. This example shows the extent of the defence's influence over the selection of jurors.^[13]

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.^[14]

Notes

↑ 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.
↑ Jury Ordinance , §4 Qualifications and disabilities
↑ Lee, Diana (21 December 2007), "Juror jailed for faking incapacity", The Standard, archived from the original on 29 June 2011, retrieved 21 December 2011
↑ 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
↑ Jury Ordinance , §33 Punishment of employer discriminating against employee by reason of jury service
↑ Jury Ordinance , §5 Exemptions from service
↑ Jury Ordinance , §31 Payment of jurors
↑ Allowances to Jurors Order
↑ Jury Ordinance , §25 Death or discharge of juror
↑ Jury Ordinance , §3 Number of jurors on trial
↑ Jury Ordinance , §13 Formation of panel of jurors
↑ Jury Ordinance , §21 Ballot for jury
↑ "Lam, Tang head list of 43 witnesses for Tsang trial". The Standard (Hong Kong). 10 January 2017.
↑ Duff et al. 1992 ^{[ page needed ]}

Related Research Articles

A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions.

A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment.

Voir dire is a legal term for procedures during a trial that help a judge decide certain issues:

Batson v. Kentucky, 476 U.S. 79 (1986), was a landmark decision of the United States Supreme Court ruling that a prosecutor's use of a peremptory challenge in a criminal case—the dismissal of jurors without stating a valid cause for doing so—may not be used to exclude jurors based solely on their race. The Court ruled that this practice violated the Equal Protection Clause of the Fourteenth Amendment. The case gave rise to the term Batson challenge, an objection to a peremptory challenge based on the standard established by the Supreme Court's decision in this case. Subsequent jurisprudence has resulted in the extension of Batson to civil cases and cases where jurors are excluded on the basis of sex.

The Judiciary of the Hong Kong Special Administrative Region is the judicial branch of the Hong Kong Special Administrative Region. Under the Basic Law of Hong Kong, it exercises the judicial power of the Region and is independent of the executive and legislative branches of the Government. The courts in Hong Kong hear and adjudicate all prosecutions and civil disputes, including all public and private law matters.

In American and Australian law, the right of peremptory challenge is a right in jury selection for the attorneys to reject a certain number of potential jurors without stating a reason. Other potential jurors may be challenged for cause, i.e. by giving a good reason why they might be unable to reach a fair verdict, but the challenge will be considered by the presiding judge and may be denied. A peremptory challenge can be a major part of voir dire. A peremptory challenge also allows attorneys to veto a potential juror on a "hunch".

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The District Court is the intermediate court system in Hong Kong, having limited criminal and civil jurisdictions. The District Court was established in 1953 with the enactment of the District Court Ordinance. It is located in the Wanchai Law Courts, Wanchai Tower, 12 Harbour Road. In the past there were six district courts, namely Victoria, Kowloon, Fanling, Tsuen Wan, Tuen Mun and Sha Tin, before being amalgamated and moved to the same location in March 1991.

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Jury selection is the selection of the people who will serve on a jury during a jury trial. The group of potential jurors is first selected from among the community using a reasonably random method. Jury lists are compiled from voter registrations and driver license or ID renewals. From those lists, summonses are mailed. A panel of jurors is then assigned to a courtroom.

Jury duty or jury service is service as a juror in a legal proceeding. Different countries have different approaches to juries. Variations include the kinds of cases tried before a jury, how many jurors hear a trial, and whether the lay person is involved in a single trial or holds a paid job similar to a judge, but without legal training.

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Jury selection in the United States is the choosing of members of grand juries and petit juries for the purpose of conducting trial by jury in the United States.

The general framework and the body of Hong Kong’s criminal laws were in fact imported from the United Kingdom when Hong Kong was first become a Crown colony in 1842 under the Treaty of Nanking. Even nowadays, after the handover and years of development and modification, these laws are still very similar to those in the UK. Just like in Britain, criminal laws in Hong Kong are entailed in different statutory law and common law.

Following the common law system introduced into Hong Kong when it became a Crown colony, Hong Kong's criminal procedural law and the underlying principles are very similar to the one in the UK. Like other common law jurisdictions, Hong Kong follows the principle of presumption of innocence. This principle penetrates the whole system of Hong Kong's criminal procedure and criminal law. Viscount Sankey once described this principle as a 'golden thread'. Therefore, knowing this principle is vital for understanding the criminal procedures practised in Hong Kong.

Jury fees refer to the daily stipend paid to jurors. The source of these fees varies according to the kind of trial. Government pays the fees in criminal trials, while the litigants share the costs in a civil action as part of court costs. Not infrequently, the entire burden of court costs may be shifted to the loser of a civil action. A deposit of one day's fees may be required in advance of the trial by the litigant requesting the presence of a jury.

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The representation of women on United States juries drastically increased during the last hundred years because of legislation and court rulings. Until the latter part of the twentieth century, women were routinely excluded from jury service. The push for women's jury rights sparked a debate similar to that surrounding the women's suffrage movement. At the time, it permeated the media with arguments for and against. Federal and state court case rulings increased women's participation on juries. Some states allowed women to serve on juries much earlier than others, while also differing on whether women's suffrage also implied women's jury service.

References

Cap 3 Jury Ordinance, Hong Kong Legal Information Institute, retrieved 21 December 2011
Cap. 3A Allowances to Jurors Order, Hong Kong Legal Information Institute, retrieved 4 September 2023
Duff, Peter; Findlay, Mark; Howarth, Carla; Chan, Tsang-Fai (1992), Juries: a Hong Kong perspective, Hong Kong University Press, ISBN 978-962-209-306-5
Koo, Franklin, Power to the people: Extending the jury to the Hong Kong's District Court., City University Law Review, retrieved 27 June 2017