Since the beginning of this year, the Hong Kong District Court has been trying a lot of cases of unauthorized assembly, rioting, arson, etc. in connection with political demonstrations like the 2016 Fish Ball police-civilian conflict and the 2014 Umbrella Revolution. The sentences are frequently over three years’ imprisonment, and quite a few Hong Kong citizens think that it is political persecution. After the Umbrella Revolution, the conviction rate in the District Court (which does not have a jury system) has been much higher than that at the Court of First Instance (High Court) with jury trial. (The 2010 conviction rate after trial in the District Court is 75.3 percent; that in the Court of First Instance is 71.1 percent. The 2014 conviction rate after trial in the District Court is 89.1 percent; that in the Court of First Instance is 64.2 percent. The 2016 conviction rate after trial in the District Court is 72.8 percent; that in the Court of First Instance is 56.5 percent.)
The lack of juries in the District Court has been severely criticized. Clive Grossman SC, one of Hong Kong’s most senior barristers, has put down in the preface to the annually published criminal law reference book, Archbold’s Hong Kong 2010, which has enjoyed a lofty prestige in the profession: “Any person who is arrested on a serious or relatively serious charge is almost certain to be convicted, and since the convictions are in the district and high courts, imprisonment is almost always the norm…The high rate of convictions is founded on the comforting assumption that prosecution witnesses, including the police… always tell the truth!”
On 22 June 2015, Legislative Council Panel on Administration of Justice and Legal Services discussed whether the jury system should be extended to the District Court. Most law-makers supported it but the Department of Justice maintained that it would require an exceedingly huge lot of resources, and claimed that the Hong Kong Judiciary being wholly independent, judges were able to handle cases justly even without a jury.
The jury system can prevent to a good extent the possibility of professional judges being subject to political or superior influence. The high voting threshold lowers the probability of wrong verdict. “Juries bring with them the freshness and insights of those who are new to the system and have not become case-hardened or cynical” (Paul Mendelle, 2010).
The judiciary of most civilized countries has either a jury system or a lay judge system (Note1). Article III of the United States constitution provides that the trial of all crimes, except in cases of impeachment, shall be by jury. The number of jurors in a jury in countries like the United Kingdom, the United States, and Canada is usually 12 (though in some cases it could be 6), while that in Hong Kong is only 7. In the United States, the jury must be unanimous in its verdict, whilst in Hong Kong only a majority verdict of one to six or two to five is required. This article advocates that defendants in the District Court be entitled to choose whether the offence he or she faces is to be tried by judge and jury or by judge alone, so that political dissidents can be protected to a certain extent from political persecution.
Note1. For example, Finland does not have a jury system. But the district court cases are tried by a panel consisting of a judge, another legally trained person, plus three lay judges elected by the municipal council. The lay judges’ position is their civic duty rather than their profession, so their function is similar to that of a juror. The lay-judge systems in Japan and Germany are similar.
The Chinese version of this article is available at ＜曾焯文：區院應設陪審團保人權＞