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Juries Sub-Committee THE LAW REFORM COMMISSION OF HONG KONG JURIES SUB-COMMITTEE CONSULTATION PAPER CRITERIA FOR SERVICE AS JURORS This consultation paper can be found on the Internet at: <http://www.hkreform.gov.hk> JANUARY 2008 This Consultation Paper has been prepared by the Juries Sub-committee of the Law Reform Commission. It does not represent the final views of either the Sub-committee or the Law Reform Commission, and is circulated for comment and discussion only. The Sub-committee would be grateful for comments on this Consultation Paper by 30 April 2008. All correspondence should be addressed to: The Secretary The Juries Sub-committee The Law Reform Commission 20th Floor, Harcourt House 39 Gloucester Road Wanchai Hong Kong Telephone: (852) 2528 0472 Fax: (852) 2865 2902 E-mail: [email protected] It may be helpful for the Commission and the Sub-committee, either in discussion with others or in any subsequent report, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all or part of a response in confidence will, of course, be respected, but if no such request is made, the Commission will assume that the response is not intended to be confidential. It is the Commission's usual practice to acknowledge by name in the final report anyone who responds to a consultation paper. If you do not wish such an acknowledgment, please say so in your response. THE LAW REFORM COMMISSION OF HONG KONG JURIES SUB-COMMITTEE CONSULTATION PAPER CRITERIA FOR SERVICE AS JURORS ___________________________ CONTENTS Chapter Page Preface 1 Introduction 1 Terms of reference 1 Membership of the sub-committee 2 1. Existing law and practice in Hong Kong 3 Introduction 3 Origins of the jury system 3 The history of the jury system in Hong Kong 4 The jury system today 6 Use of the jury 6 The provisional list of jurors 7 Qualifications and disabilities 9 Formation of and empanelling the jury 11 Challenge and discharge of jurors 12 Majority verdicts 13 Confidentiality of jurors' discussions in jury room 14 2. The law in other jurisdictions 15 Introduction 15 Australia 15 New South Wales 15 Victoria 18 Canada 22 Alberta 22 i Chapter Page England and Wales 24 Juries Act 1974 24 Ireland 25 Juries Act 1976 25 New Zealand 28 Juries Act 1981 28 Scotland 31 Qualifications for jury service 31 Exemptions from jury service 31 United States of America 33 California 36 3. Common law position 41 Introduction 41 Age 41 Residency 43 Good character 44 Language competence and educational standard 48 Disability 55 Deafness 55 Blindness 59 Ineligibility and excusals 65 4. Issues for consideration and reforms in other 68 jurisdictions Introduction 68 "Trial by one's peers" and the representativeness of the jury 69 The representativeness of the jury in Hong Kong 72 Age requirements 73 Lower age limit 73 Upper age limit 74 Residency requirements 76 Good character 77 Criminal records 77 Undischarged bankrupts 79 Education requirements 80 Disability 82 5. Proposals for reform 88 Introduction 88 Qualifications for jury service 88 "A person who has reached 21 years of age, but not 65 89 years of age" "A person who … is a resident of Hong Kong" 92 "The person is of good character" 94 ii Chapter Page "The person has a sufficient knowledge of the language 97 in which the proceedings are to be conducted to be able to understand the proceedings" "The person is of sound mind and not afflicted by 101 blindness, deafness or other disability preventing the person from serving as a juror" Form of Notice of Jury Service 103 Exemptions from jury service under section 5 of the Jury 104 Ordinance 6. Summary of recommendations 120 Annex 1 126 List of persons exempted from jury service Annex 2 129 Notice for jury service Annex 3 134 Form of Summons to Juror Annex 4 139 Form of Summons to Juror (Coroner's Court) iii Preface __________ Introduction 1. The existing legislative rules and administrative practices that apply to the appointment of jurors require that, among other things, a juror must be a resident of Hong Kong, between 21 and 65 years of age, not afflicted by blindness, deafness or other disability preventing him from serving as a juror, be of good character, and have "a sufficient knowledge of the language in which the proceedings are to be conducted to be able to understand the proceedings." 1 The legislation is silent as to how that linguistic competence is to be measured, but the administrative practice has been to exclude from the jury pool those with an educational attainment below Form 7, or its equivalent. The legislation is equally mute as to what constitutes "good character" or "residence" for jury purposes. 2. The question of whether the existing criteria for jury service are appropriate was raised by members of the Legislative Council in April 1997, and has been subsequently raised by both the Law Society and the Hong Kong Bar Association. The question also arises as to whether the criteria should be set out with greater clarity and precision. Terms of reference 3. In June 2003, the Chief Justice and the Secretary for Justice asked the Law Reform Commission to review this subject. The Commission’s terms of reference are: "To review the present criteria for service as jurors in relation to: (a) education requirement; (b) age requirement; (c) residency requirement; (d) good character; and (e) exemption on disability grounds set out in section 4(1) of the Jury Ordinance (Cap 3), and to review the exemptions from jury service set out in section 5 of that Ordinance, and to recommend such changes in the law and 1 Section 4(1)(c) of the Jury Ordinance (Cap 3) 1 practice as may be considered appropriate." Membership of the sub-committee 4. In October 2003, a sub-committee with the following members was appointed to review the subject: Hon Mr Justice Woo Vice President (Chairman) Court of Appeal of the High Court Hon Mr Justice Stock Justice of Appeal Court of Appeal of the High Court Hon Mr Justice Pang Judge Court of First Instance of the High Court Hon Mr Justice Tong Judge Court of First Instance of the High Court Mr Lawrence Lok, SC Senior Counsel Mr Jonathan Midgley Partner Haldanes, Solicitors Mr Arthur Luk, SC Senior Counsel Deputy Director of Public Prosecutions Ms Alice Chung Assistant Director of Legal Aid Mr Jason Yeung Company Secretary Bank of China Hong Kong Limited Mr Andrew Tse Former Principal of the John F Kennedy Centre 5. Ms Judy Cheung, Senior Government Counsel in the Law Reform Commission Secretariat, is the secretary to the sub-committee. The Sub-committee considered the reference over the course of nine meetings between 24 October 2003 and 9 February 2007. The recommendations in this paper are the result of those discussions. They represent our preliminary views, presented for consideration by the community. We welcome any views, comments and suggestions on the issues in this paper, which will assist the sub-committee to reach its final conclusions in due course. 2 Chapter 1 Existing law and practice in Hong Kong ___________________________________________________ Introduction 1.1 In this chapter, we look at the origins of the jury system and some of its key features. We also examine the existing statutory provisions under the Jury Ordinance (Cap 3) governing the qualifications for jury service. Origins of the jury system 1.2 The jury has been described as "a peculiarly English institution", unknown in civil law jurisdictions. Its form today gives little hint of its origins: "It began as something quite different and the nature of its origin is shown by its name. A juror was a man who was compelled by the King to take an oath. It was the Normans who brought over this device whereby the spiritual forces could be made to perform a temporal service and the immense efficacy which they possessed in medieval times used for the King's own ends. The oath then was so strong a guarantor of veracity that, provided that the men who were compelled so to answer were the men who must know the truth about a matter, there could be no better way of getting at the facts. … It was King Henry II who was directly responsible for turning the jury into an instrument for doing justice and Pope Innocent III who was directly responsible for its development as a peculiarly English institution. … A jury which gave the King information for administrative purposes could also be used to give him information which would enable him to decide a dispute. … Henry ordained that in a dispute about the title to land a litigant might obtain a royal writ to have a jury summoned to decide the matter. The character of the jurors was not thereby altered. They were drawn from the neighbourhood who were taken to have knowledge of all the relevant facts (anyone who was ignorant was rejected) and were bound to answer upon their oath and according to their knowledge which of the two disputants was entitled to the land. When a party got twelve oaths in his favour, he won. This is the origin of the trial jury, though there was as yet no sort of trial in the modern sense. … It began by the parties putting their case, but not really distinguishing between pleadings, evidence and argument. It ended with the jury as it is today – a body whose strict duty it is to 'hearken to the evidence' and return a verdict accordingly, excluding from their minds all that they have not 3 heard in open court.
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