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Lecture 9 – Other Aspects of Legal System

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Lecture 9 – Other Aspects of Legal System TRAN A803BF Hong Kong Legal System and Legal English Lecture 9 – Other Aspects of Legal System 1 9.1 Jury 9.1.1 Introduction • Jury system is governed by the Jury Ordinance (J.O.). • It was first introduced in Hong Kong in 1845. • It as been modified in several respects since then E.g. abolished Property qualification, disqualification of women, etc. • Jury trial is now mainly used in criminal trials in the Court of First Instance or some death inquests held by the Coroner’s Court. In some civil cases e.g. defamation, a party may elect to have issues of fact tried by a jury. 2 9.1 Jury • In Hong Kong the jury consists of 7 jurors, (maybe up to 9 jurors if the trial is likely to be lengthy.) (s.3 J.O.) • In criminal cases, a decision is made by a majority at least 5 jurors agreeing, except for offences when unanimity was required (s.24(3) J.O.). • In civil cases, at least a simple majority of jurors (4 out of 7) is required (s.24(2) J.O.). 3 9.1 Jury • Whenever the jury in any case have withdrawn and been kept apart for the purpose of considering their verdict, and cannot agree upon a verdict, and that there is not such a majority as aforesaid agreeing, • the court shall discharge such jury, and shall cause a new jury to be empanelled and sworn and charged with any person accused, and the action, suit, information, or indictment shall be tried as if such first jury had not been empanelled (s.27 J.O.). 4 9.1 Jury 9.1.2 Eligibility A person is obliged to serve as a juror if he/she satisfies the following qualification stipulated in s.4 of the J.O.: --A Hong Kong resident; --Between 21 and 65; --Sound mind and not afflicted by blindness deafness or other disability preventing the person from serving as a juror; --Sufficiently knowledge of the language of the court proceedings (Chinese or English as the case may be); --Good character. 5 9.1 Jury 9.1.3 Exemption • S.5 of J.O. states that a person is exempted if he is: a. A members of Executive and Legislative Councils b. Lawyer c. Spouses of judges d. Justice of Peace e. Medical Petitioner f. Priests g. Pilots h. Members of the Hong Kong Auxiliary Police Force i. Chemists 6 9.1 Jury j. Public officer who is --judge; --police; --legal officer; --presiding officer of a Tribunal, officer serving in the Department of Justice, Legal Aid Department, or Intellectual Property Department; --officer of Correctional Services Department; --probation officer; --member of the Government Flying Service 7 9.1 Jury • If a person is summoned for jury service, he/she should check whether he/she belong to the categories of persons who are exempted from jury service. If he/she wishes to seek exemption from jury service, he/she should write to the Registrar, High Court, setting out the reasons in full as soon as possible after: 8 9.1 Jury --the person receives a notice from the Registrar that his/her name will be added to the list of jurors; --copies of the provisional list or the additional list of jurors are available for inspection; or --the person receives the summons to appear as a juror. 9 9.1 Jury • The Registrar will consider the application for exemption. Business commitments are not normally considered to be a sufficient reason for exemption from jury service. • If the Registrar refuses the application for exemption, the person may still put the request to the trial judge if he/she is selected by ballot as a juror. 10 9.1 Jury 9.1.4 Duties • In a criminal trial, jurors decide, based on the facts, whether the defendant is guilty or not guilty. In a death inquest, jurors decide the cause of and the circumstances connected with a death. • Although the trial judge decides which evidence the jury may hear, it is for the jury to decide the weight to attach to such evidence when considering their verdict. 11 9.1 Jury • The jury’s deliberations are confidential. Members of the jury should take great care never to discuss the case with anyone other than their fellow members. 12 9.1 Jury 9.1.5 Rationale • Trial in court by peers of the community of the person on trial provides a measure of security against possible oppression by the government. Thus an individual’s right can have the best protection. 13 9.1 Jury 9.1.6 Selection • The Commissioner of Registration will include a person’s name in the list of jurors if he/she is considered eligible. • The Registrar, High Court, will serve a notice on the person, notifying that his/her name is about to be added to the list of jurors. 14 9.1 Jury • The Registrar, High Court, complies a provisional list of jurors in or before October in each alternate year. This list is confirmed during or before the following February. The Registrar may compile additional lists from time to time. A notice is then published in the Government Gazette and in newspapers stating that copies of the provisional list or the additional list of jurors are available for inspection. 15 9.1 Jury • The Registrar, High Court, each week draws at random a number of jurors from the list. If a person is selected, a summons will be sent to him/her by registered post requesting his/her presence in the High Court/Coroner’s Court on a certain date. A person is given at least 14 days’ notice of a call for jury service. 16 9.1 Jury • The jury for each High Court trial is selected by ballot in open court from a pool of persons summoned. In criminal trials, this allows for objections from the lawyers for the defence and the prosecution. • Members of the panel not selected on the first occasion in the court may be required to attend another court for the selection of another jury on that day or a later date. 17 9.1 Jury 9.1.7 Penalties • Failure to attend in response to a jury summons is criminal contempt of court and shall be punishable. (s.32 J.O.) • An employer discriminating against an employee by reason of jury service commits an offence and is liable upon conviction. (s.33 J.O.) 18 9.1 Jury 9.1.8 Payment • Once selected to serve as a member of the jury in a case, the juror will receive an allowance each day in accordance with s.31(1) J.O. 19 9.2 Legal Aid 9.2.1 Introduction • It would be unjust if a person is denied professional assistance because of purely financial considerations. This would violate the rule of law. Thus the Legal Aid Department is established to offer legal aid and various schemes are launched to help those who cannot afford lawyers. 20 9.2 Legal Aid • Legal aid is available for proceedings in: --District Court --Court of First Instance and the Court of Appeal --Court of Final Appeal --Magistrate’s Court (committal proceedings only) -- Mental Health Review Tribunal --Coroner’s Court (in cases where the Director of Legal Aid (the Director) is of the opinion that the interests of public justice require that legal aid be given 21 9.2 Legal Aid 9.2.2 Legal Aid Department • The Legal Aid Department is a government department. • It provides legal representation in both civil and criminal cases to any person who has reasonable grounds for pursuing or defending a legal action but who would otherwise be prevented from doing so by lack of means. • It offers the following legal aid schemes: --Ordinary Legal Aid --Criminal Legal Aid --Supplementary Legal Aid 22 9.2 Legal Aid • The provision of legal aid services is funded by the government. Eligible persons are provided with legal representation either free or, depending on their financial circumstances, upon payment of a graduated contribution. Depending on the amount of damages successfully recovered, an aided person may be required to reimburse all or part of the legal costs incurred or expenses paid by the Director on his/her behalf. 23 9.2 Legal Aid • Applications for legal aid are determined by the department's lawyers. If legal aid is granted, the Director may assign the department's own lawyers or solicitors in private practice to act for the aided persons. Barristers are also assigned whenever it is necessary or desirable to instruct them. 24 9.2 Legal Aid • The Director maintains panels of counsel and solicitors who are willing to undertake legal aid work. Except where the case is assigned in-house, the aided person can nominate a lawyer on the legal aid panel to represent him. • Where cases are assigned out, the Department will monitor their progress and costs. 25 9.2 Legal Aid 9.2.3 Legal aid in civil cases • The major types of cases covered by the Ordinary Legal Aid Scheme are: --family and matrimonial disputes --personal injury claims --employment disputes --contractual disputes --immigration matters --professional negligence claims 26 9.2 Legal Aid • Legal aid is not available for certain proceedings, including: --defamation (other than defending a counter-claim alleging defamation) --Small Claims Tribunal matters --Labour Tribunal matters --money claims in derivatives of securities, currency futures or other futures contracts --election petitions except involving a possible breach of the Hong Kong Bill of Rights Ordinance or an inconsistency with the International Covenant on Civil and Political Rights as applied to Hong Kong 27 9.2 Legal Aid • To be eligible for legal aid an applicant must satisfy: (1) Means test --The financial resources of the applicant must not exceed a prescribed limit (HK$165,700).
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