Justice by Majority Verdict: An Introduction to the Hong Kong Jury System

※ Originally published in Judicial Reform Magazine, Issue 83

Historical Background of the Hong Kong Jury System

Hong Kong passed the "Jury Ordinance" in 1845, adopting features of the British criminal justice system. Because Hong Kong's population was small in 1845, juries were originally composed of 6 members, which was increased to 7 in 1867. In 1947, the first female juror appeared. In 1986, the law empowered judges, under appropriate circumstances, to empanel a jury of 9 members to try cases.

The primary function of juries in Hong Kong is to determine the facts of a case related to the evidence presented, apply the law in accordance with the judge's directions, and render verdicts. Juries must investigate the facts and decide which witness testimonies should be accepted in whole or in part, or rejected in whole or in part.

Juries are a crucial part of Hong Kong's criminal justice system, bringing diverse perspectives and personal experiential knowledge into criminal cases. Jurors serve as independent individuals representing the conscience of society in criminal verdicts.

Impartiality and Independence

"Juries are composed of ordinary people who are better able than judges to assess what actually happened in the cases being tried. When hearing a case, jurors are regarded as being able to draw upon their collective common sense, their respective understandings of the world, and their daily life experiences. Generally, or even individually, jurors have more diverse life experiences than judges, and juries may also be more familiar with the living environments of most defendants and witnesses. Furthermore, juries are less likely to become hardened or desensitized, and less likely to turn a blind eye to a defendant's statements while naturally accepting the police's version of events. On this foundation, juries are better able to weigh the facts presented before them, decide whether to accept or doubt a witness's statements, judge whether specific circumstances are reasonable or probable, and determine whether a defendant's statements are credible." (Note 1)

The Jury System Today

Criminal trials in the Court of First Instance of the High Court must have a jury, and juries are most frequently utilized in such cases. The relevant legislative provision is the Jury Ordinance.

Cases involving minor offenses (summary offenses) are not tried by a jury. In other words, the most serious criminal offenses are tried in the Court of First Instance of the High Court rather than in lower courts. Offenses explicitly stipulated by law, offenses carrying a maximum penalty of over 7 years of imprisonment, or cases where the judge and jurors determine that trying the case serves the public interest are all tried in the Court of First Instance of the High Court.

Under specific circumstances, the Coroners Ordinance also mandates jury participation in inquests. For deaths occurring while in official custody, the coroner must conduct an inquest with the participation of a jury. Given the objectives of this article, I will focus on the functions and roles of juries within the criminal justice system.

Structure of the Jury System

1. Qualifications and Standards
   A sound jury system should be easily understandable and accountable to the general public. Legislative provisions must pay attention to the qualifications and standards for selecting jurors. Section 3 of the Jury Ordinance stipulates the criteria for becoming a juror:
   
   • Aged 21 or over and under 65
   • A resident of Hong Kong
   • Of sound mind and not afflicted by any blindness, deafness, or other incapacitating condition that would render them unable to act as a juror
   • Of good character
   • Possessing sufficient knowledge of the language to be used in the relevant legal proceedings to understand those proceedings
   Pursuant to the Jury Ordinance, the Commissioner of Registration compiles the provisional list of jurors. The Commissioner must include the names of all persons meeting the criteria for jurors in the list. The Commissioner sends a notice to any citizen who is qualified as a juror and is not exempt from jury service. If a person who receives the notice believes they are exempt from jury service, they must give written notice to the Registrar within 14 days of the service of the notice, stating the grounds upon which exemption is claimed.
   Similarly, exemptions claimed on the grounds of insufficient language proficiency must be determined on a case-by-case basis.
   
2. Compilation of the Provisional List of Jurors
   Section 5 of the Jury Ordinance specifies the categories of persons exempt from jury service. Some of these categories include:
   Members of the Executive Council or Legislative Council
   Judges, legal officers, and police officers
   Practicing barristers and solicitors, and their clerks
   Medical practitioners and dentists
   Editors of newspapers
   Clergy
   Full-time students of educational institutions
   Masters of vessels, pilots, and aircraft crew members
   
3. Empaneling a Jury
   Upon receiving the provisional list of jurors from the Commissioner, the Registrar of the High Court retains the list and utilizes the information thereon at the appropriate time when a jury needs to be empaneled.
   When Hong Kong citizens apply for identity cards, if they are not already on the provisional list of jurors, the Immigration Department reviews whether they meet the requirements of the Jury Ordinance. Generally, individuals aged between 21 and 65 with an educational attainment of Form Seven (pre-university) or equivalent qualifications are eligible to serve as jurors. When applying for an identity card, applicants must present proof of their educational attainment, upon which the Immigration Department decides whether the applicant meets the qualifications and includes them in the provisional list.
   The Commissioner of Registration requests the 8 universities and 3 other higher education institutions in Hong Kong to provide their graduate lists each year. The Commissioner notifies the graduates in writing that they are no longer exempt from jury service.
   The Commissioner of Registration notifies the Registrar of the High Court weekly of any updates to the information in the provisional list of jurors (e.g., changes of address, deaths, etc.). Similarly, the Registrar notifies the Commissioner monthly of names that should be removed from the list (e.g., reaching 65 years of age, legal incapacity, etc.).
   Based on the data from the Registration of Persons Office, the Registrar maintains a provisional list of jurors containing all qualified Hong Kong residents. Every alternate year, the Registrar updates the provisional list and makes it public. Any citizen may apply in writing to have their name removed or added.
   Whenever it is necessary to summon a jury, the Registrar shall, by drawing lots or by any other random selection method, select a panel of jurors from the jury list numbering as directed by the judge. The Registrar then issues a summons to the selected jurors, requiring them to attend the High Court on the date specified in the summons. If a summons cannot be served on a selected juror, the Registrar shall select another juror to make up the required number for the panel.
   The panel shall attend to serve as jurors for the period directed by the judge. No juror shall be absent or excused unless and until the judge has released them from their duties as a juror.
   The Registrar arranges for numbers corresponding to the names of the summoned jurors to be printed on slips of paper and placed in a box. The court clerk draws numbers from the box in open court until a jury is empaneled. The judge receives a list containing the names and occupations of the summoned persons; the prosecution and the defense receive lists containing only names.
   
4. Challenges and Release of Jurors
   During the empanelment process, individual jurors take an oath or make a affirmation in the jury box. The prosecution and the defense may only challenge a juror before they take the oath or make the affirmation. The defendant may challenge up to 5 jurors without cause, or make an unlimited number of challenges with cause. The prosecution may ask a juror to "stand by" (virtually equivalent to a challenge). Once sworn in, the jurors attend court until the evidence is presented, the judge sums up the evidence, and the case is handed over to the jury for a verdict. Upon the delivery of the verdict, the judge discharges the jury.
   A judge may excuse any person from jury service due to insufficient language proficiency, or if the judge deems it necessary in the interests of justice. Provided that the number of jurors is not reduced below 5, the death or discharge of a juror shall not render the jury improperly constituted.
   
5. Majority Verdicts
   In civil cases (e.g., defamation), verdicts are reached by a majority decision of the jury. In criminal cases, when a jury consists of 7 members, even if reduced to 6 due to death or discharge, the majority verdict must not be fewer than 5. If the jury consists of 9 members, the majority verdict must not be fewer than 7. If the jury consists of 8 members, the majority verdict must be at least 6. If the jury consists of only 6 or 7 members, the majority verdict must not be fewer than 5. If the jury consists of 5 members, the verdict must be unanimous.
   Whether by unanimous or majority verdict, if the jury is clearly unable to reach a verdict, the court may discharge the jury and empanel a new one to retry the case.
   
6. Confidentiality of Jury Deliberations
   Jury deliberations regarding a case must not be made public. R v Bean [1991] Crim LR 843 established that the court may not consider what transpired during jury deliberations. The sanctity of the jury's closed-door deliberations must not be violated.
   If, after the court announces the verdict and discharges the jury, something occurs during the closed-door deliberations that affects the fairness of the verdict and becomes known, the current law remains unclear as to whether such circumstances can serve as grounds for appeal.
   
7. Jury Summoning Duties
   The general practice is to summon more jurors than required. Typically, around 30 or more prospective jurors are summoned, from whom 7 jurors are selected.
   The Registrar shall not issue a summons to any person who has served as a juror within the preceding 2 years, or who has been summoned for jury selection.
   

Judges and Juries

Undoubtedly, ordinary people acting as jurors to decide whether a defendant is guilty in legal proceedings require instructions on substantive law, procedural rules, and rules of evidence in order to render a verdict in accordance with the law.

In criminal cases, questions of law are decided by the judge, while fact-finding is the responsibility of the jury. The judge gives relevant instructions to the jury, such as regarding the burden of proof, the probative value of evidence, and the benefit of the doubt. The judge also reminds the jury to ignore media reports and focus solely on the evidence presented in the proceedings. They also receive necessary instructions on what to consider and what to disregard. An important rule of procedure and evidence is that the admissibility of exhibits or testimony is determined entirely by the judge. The judge bears sole responsibility for assessing the law and facts applicable to determining the admissibility of any exhibit or testimony.

1. Facts
   In this context, facts include opinions and arguments. Facts are not restricted to physical evidence, but encompass all methods by which evidence is obtained, as well as reasoning and inference derived from logic and common sense. Questions of fact include determining the truth and probability of all facts relevant to the case.
   In addition, the jury must judge whether specific witnesses are honest and credible, and weigh the probative value of any evidence.
   The jury must also determine, based on the evidence or, where necessary, inferences, whether the requisite mental element (awareness and understanding of one's actions, motive for the crime, etc.) existed on the part of the defendant at the time the criminal act occurred. However, what constitutes the requisite mental element may be a complex question and is also a matter handled by the judge. In murder or rape cases, the judge's instructions regarding the mental element can make a profound difference. Determining whether the requisite mental element existed is the job of the jury.
   
2. Law
   The law includes statutes, regulations, case law, established customs, and so forth. Whether the meaning of a term in a statute is to be determined by the jury is not easily resolved. The general rule is: the meaning of ordinary words is not a question of law, whereas statutory interpretation is a question of law.
   Broadly speaking, in criminal cases, the judge instructs the jury on the burden of proof and the probative value of evidence (i.e., that the prosecution bears the burden of proof and must prove the case beyond a reasonable doubt). The judge instructs the jury on what elements a criminal act must possess to prove the case, which parts of the testimony they should disregard (e.g., a witness's opinion on the facts), whether corroboration is required, when and whether to accept character evidence or testimony concerning a witness, and how much reliance to place on such evidence or testimony.
   Many issues involve a mixture of questions of law and questions of fact. When the boundary between questions of law and fact is unclear, relevant and appropriate substantive law must be invoked to determine what matters are to be decided by the judge and what matters are to be decided by the jury.
   During trial proceedings, when an objection is raised against the admissibility of specific evidence, the judge must determine this matter in their judicial capacity (often in the absence of the jury).
   When investigating criminal events, it frequently occurs that arrested persons accuse the police of using violence or employing unfair or illegal methods to obtain confessions, which are then introduced as proof of guilt. In criminal trials, the court adopts a special procedure known as a "voir dire", or a "trial within a trial", to determine the admissibility of a confession as prosecution evidence. This voir dire is conducted and decided by the judge in the absence of the jury. If the judge rules the confession admissible, it is then presented to the jury and considered by them during their deliberation on the verdict.
   Importantly, the verdict of the jury (responsible for finding facts and rendering verdicts) is almost impossible to overturn on appeal unless there is a manifest and gross error, which is extremely rare. If a defendant is convicted, appeals are almost always based on the judge misdirecting the jury, flaws in the trial proceedings, or the admission of inadmissible evidence, leading the jury to return a conviction verdict that—in legal jargon—is "neither safe nor satisfactory."
   If a defendant pleads guilty in the Court of First Instance of the High Court, there is no need for the court to empanel a jury. Sentencing a convicted person or sentencing someone who has pleaded guilty is entirely the job of the judge.
   

Aspects of the Jury System

There are concerns about how much of the trial proceedings and evidence a jury can comprehend, especially in lengthy cases involving many witnesses and complex evidence. However, research into the jury system shows that juries are virtually never unable to understand proceedings in a way that causes miscarriages of justice.

In Hong Kong, pre-trial hearings known as "Pre-trial Reviews" held in chambers—as opposed to open court trials—usually take place a few weeks before the trial begins. These hearings determine all pre-trial and trial procedures, address potential issues, and, under the judge's direction, all parties make every effort to resolve foreseeable complications to facilitate smooth trial proceedings and reduce unnecessary debate during the subsequent trial.

Regardless of whether the defendant pleads guilty, rational and professional dialogue and negotiation among the parties before or during trial proceedings can achieve many objectives. The parties can jointly agree on which evidence may be presented without objection, saving considerable court time since some witnesses do not need to appear. This also saves costs. Another common practice is to notify the opposing party of litigation documents submitted by one's own side and draft core matters (on points of law or fact) prior to the commencement of the trial. Without this, both sides would waste a lot of time on unnecessary disputes, hostile confrontations in public, and potentially cause adjournments. Most importantly, the smooth operation of trial proceedings best helps the jury understand what is happening in the courtroom. Neither judges nor juries appreciate open trials filled with personal confrontations between opposing lawyers. We believe that presenting a case clearly, concisely, logically, and rationally is the best way to assist the jury.

To enable juries to administer justice, judges and lawyers for both sides need to cooperate closely and professionally in accordance with legal provisions and practice, ensuring that the trial proceedings are intelligible and clear to the jury. In addition to recognizing the importance of judicial independence, fairness, and impartiality, we cannot overlook the importance of a vibrant, credible legal profession that assists the court in administering justice. The success of the jury system stems not only from sound legislative regulations (such as the Jury Ordinance) but also from the proper performance of duties by judges and the professional contributions of legal practitioners.

A reliable jury system also requires social support, particularly support from the general public who respect the law and recognize that citizens should provide assistance and participation. Even if the verdict in an individual case runs counter to public opinion or social moral perceptions, whether resulting in conviction or acquittal, the general public should accept and respect the independent verdict of the jury.

Conclusion

Beyond the legal framework, the successful operation of the jury system must rely on understandable rules of evidence, legal procedures, and administrative support from the government.

From a social perspective, maintaining the jury system can be costly. Therefore, public approval and support are indispensable.

A sound jury system is a symbol of the independence of the criminal justice system. Furthermore, it has been said: the jury is a symbol of the legitimacy of the judicial system.

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Notes:
1. Juries: A Hong Kong Perspective, Duff, Findlay, Hawarth, Chan (eds) (Hong Kong University Press, 1992)