PLC Paper No. CB(2) 178
(These minutes have been seen
by the Administration and cleared
with the Chairman)
Ref : CB2/BC/16/96
Minutes of the first meeting of the Bills Committee on
the Jury (Amendment) Bill 1997
held on Thursday, 17 April 1997 at 12:30 pm
in Conference Room B of the LegCo Building
Members Present :
Hon Margaret NG (Chairman)
Hon Emily LAU Wai-hing
Hon Albert HO Chun-yan
Members Absent :
Hon Ronald ARCULLI, OBE, JP
Hon James TO Kun-sun
Hon Andrew CHENG Kar-foo
Public Officers Attending :
- Mr Paul TANG
- Deputy Director of Administration
- Mr Stephen FISHER
- Assistant Director of Administration
Clerk in Attendance :
- Ms Doris CHAN
- Chief Assistant Secretary (2)3
Staff in Attendance :
- Mr Stephen LAM
- Assistant Legal Adviser 4
- Miss Erin TSANG
- Senior Assistant Secretary (2)7
I.Election of Chairman
Miss Margaret NG was elected the chairman of the Bills Committee.
II.Meeting with the Administration
2. Mr Paul TANG briefed the meeting on the Jury (Amendment) Bill 1997 (the Bill). In essence, the Bill sought to:
- amend the language requirement for jurors from English to "the language in which the proceedings were to be conducted", i.e. either English or Chinese, in order to meet the provisions of Article 9 of the Basic Law on official languages, and to enable the Judiciary to conduct jury trials in the High Court in Chinese before 1 July 1997;
- exempt from jury service the Legal Adviser of the Legislative Council (LegCo) Secretariat and any of his legally qualified assistants who are in full time employment of the LegCo Commission; and
- exempt from jury service the spouses of the Chief Justice, the Justices of Appeal and judges of the High Court.
3. Mr Stephen FISHER informed the meeting that the legal profession had been consulted on the Bill. Whilst the Law Society of Hong Kong did not have any comment, the Hong Kong Bar Association (the Bar Association) had commented on, inter alia, eligibility criteria of jurors, imposition of residency requirement and expansion of the jury list (the Bar Associations comments were issued to members vide LegCo Paper No. CB(2) 1804/96-97). In response, the Administration explained that:
- it agreed, in principle, to the Bar Associations suggestions of laying down the basic criteria for compiling the Jury list and imposing a residency requirement for eligibility as a juror in the legislation, but it was of the view that the proposals should be further examined in a forthcoming review for the qualifications of jurors in the light of experience of conducting jury trials in either English or Chinese; and
- in view of the technical difficulties arising from the existing computer system and the uncertainty in the effects of conducting jury trials in either English or Chinese, the Administration shared the Bar Associations view that the jury list should not be expanded in the near future.
4. In reply to Mr Albert HO, Mr Paul TANG and Mr FISHER told the meeting that at present, only those persons who had attained an educational level of Form 7 would be included on the jury list. The arrangement was implemented administratively. The purpose of setting such a standard of education was to provide a means for objective assessment to ensure that jurors had a sufficient knowledge of English to understand the proceedings of the trial. Nonetheless, Mr FISHER added that if a person who had only attained an educational level of , say Form 3, but considered himself proficient in English language, he could also apply under section 9 or 11 of the Ordinance to the Registrar requiring that his name be added to the list of jurors.
5. Ms Emily LAU then asked and Mr TANG explained that unlike other common law jurisdictions, local trials were conducted in a language, i.e. English, which was different from that spoken by the majority of the population. Thus, language proficiency remained an important criterion for appointing jurors. Based on the past experience, Form 7 graduates generally possessed sufficient knowledge in the English language to serve as jurors and hence the administrative measure to set the educational standard at that level. If the educational requirement were to be lowered to, say Form 5, the list of jurors would expand to over a million, among whom many might not be able to follow a trial conducted in English. As a result, the courts might not be able to select a sufficient number of jurors for a particular case until after having undergone a prolonged selection process. In further reply to Ms Emily LAU, Mr TANG said that since it was expected that the majority of trials would still be conducted in English in the near future, the Administration considered that the language proficiency requirement should remain.
6. The Chairman then asked and the Assistant Legal Adviser advised that there was no reference in section 4 as to any basic academic requirement relating to English language proficiency, nor did it require that a person must attain an academic level of Form 7 before he would be considered as possessing sufficient knowledge of the English language to enable him to understand the evidence of witnesses, the address of counsel and the Judges summing up. Similar to section 4, section 4A did not specify the academic standard of examination referred to in that provision. It only provided the Registrar of the Supreme Court (the Registrar) or the Commissioner of Registration (the Commissioner) the authority to require a person to provide him with the personal particulars of any person who had passed or obtained such grade of pass in any English language examination or such other information as the Registrar or the Commissioner considered necessary to enable him to determine whether a person had a knowledge of the English language sufficient for the purposes set out in section 4. The Chairman then suggested and the meeting agreed that the Assistant Legal Adviser would provide after the meeting considered legal opinion on whether the Bill empowered the Registrar to compile a list of jurors with at least Form 7 academic qualification relating to language proficiency.
7. In this connection, the Chairman and Mr Albert HO opined that if it was the Administrations policy to impose educational requirement on jurors, it should be spelt out clearly in the legislation and such arrangement should not be just implemented administratively. The Administration took note of members suggestion for further examination in the review of the jury system to be carried out in 12 to 18 months time after the introduction of use of Chinese in the High Court.
List of jurors
8. Ms Emily LAU opined that since Chinese was the mother tongue of the majority of the population, it was unnecessary to apply educational or language qualifications on jurors if the trial was to be conducted in Chinese. She suggested that if Chinese was to be used in jury trials, the present educational standard required of jurors should be lowered since those who had attained a lower level of education should be able to follow the trial proceedings in Chinese. This would better accord with the principle of trial by ones peers. However, Mr FISHER said that the Administration shared the legal professions view that in order to uphold justice in the judicial system, there should not be two lists of jurors, one list with higher standard of education (i.e. Form 7) for English trials and another list with lower standard, such as Form 5, for Chinese trials.
9. Mr Albert HO opined that since language proficiency was closely related to educational qualifications in Hong Kong and hence a persons value judgement, the imposition of the academic requirement on jurors might violate the principle of "trial by ones peers". Mr FISHER and Mr TANG said that although the Administration also agreed to the principle of "trial by ones peers", it was of the view that a more gradual approach should be adopted in moving towards the ultimate objective of people being tried in their own language, having regard to the practical situation.
Compilation of the jury list
10. The Chairman asked and Mr FISHER told the meeting that generally speaking, the Registrar or the Commissioner would exercise his authority under section 4A to obtain from the Immigration Department, tertiary institutions and secondary schools the name and personal particulars of the persons to be put on the jury list. A person could also apply to the Registrar requiring that his name or the name of some other person be added to the jury list under section 11. In further reply to the Chairman, Mr FISHER clarified that "an English language examination or a Chinese language examination" in proposed section 4A(1)(a) referred to an examination conducted in English or Chinese. The Chairman remarked that the proposed section covered so broadly that even a kindergarten examination conducted in English or Chinese could be included under the provision. She then suggested and the meeting agreed that the Assistant Legal Adviser would provide after the meeting legal opinion on the following:
- the academic level of examination referred to in proposed section 4A(1)(a); and
- the existing arrangement in compiling the jury list, vis à vis whether it was legally in order for the Registrar or the Commissioner to obtain lists of persons from certain secondary schools and tertiary institutes.
Definition of spoken Chinese
11. With reference to the Chairmans enquiry on the definition of spoken Chinese, Mr FISHER said that neither the Basic Law nor the local legislation provided a definition on spoken Chinese. In reply to Ms Emily LAU and Mr Albert HO, Mr FISHER told the meeting that pursuant to section 5 of the Official Languages Ordinance (Cap. 5), a judge, magistrate or other judicial officer might use either or both the official languages (i.e. English and Chinese) in any proceedings or a part of any proceedings before him as he deemed fit. Thus, the language referred to in proposed section 4(1)(c) of the Bill meant English, Chinese or both of them. If the trial was conducted in both languages, the juror so appointed might need to possess sufficient knowledge of both languages. In case Putonghua or a particular dialect was used by the judge, the proceedings would be conducted in that language or dialect. However, he assured the meeting that there had not been any problem since the use of the Chinese language in court proceedings. Moreover, it was the courts tradition that either English or Cantonese, instead of Putonghua or any other dialect, was used in court proceedings.
12. In response to the Chairman, Mr FISHER and Mr TANG restated that a person would only be qualified as a juror if he, inter alia, had sufficient knowledge of the language in which the proceedings were to be conducted. If a person was only conversant with Putonghua but not Cantonese, and that the proceedings were to be conducted in Cantonese, he would not be qualified as a juror. The Chairman then suggested and the meeting agreed that the Administration would provide after the meeting a written response on whether it was necessary to define clearly in the Bill what spoken Chinese was.
13. Mr Albert HO and the Chairman asked and Mr FISHER said that the word "resident" was not defined in the existing legislation. The term "a resident of Hong Kong" under proposed section 4(1) referred to any person who had a Hong Kong identity card. In response to Mr Albert HO and the Chairman, the Administration agreed to provide after the meeting written response on the difference between the terms "a person resident within Hong Kong" in section 4 of the Ordinance and "a resident of Hong Kong" in proposed section 4(1) of the Bill.
14. Ms Emily LAU indicated her support for the Bar Associations suggestion to impose residency requirement for eligibility as a juror in order to ensure that jurors shared the same norms and values as the majority of the Hong Kong population. She suggested and the meeting agreed that the Administration would consider whether such requirement should be included in the Bill and if so, the length of the residency period.
15. Mr Albert HO asked and Mr FISHER told the meeting that the proposed section 4(1)(b) sought to modernise the original provision by replacing the archaic term "good and sufficient person" with "a person of good character". There were many case laws relating to the term "good character" available for reference, which would facilitate the court in deciding whether a person was of good character. In further reply to Mr Albert HO and the Chairman, Mr FISHER said that notice was served to a person on presumption of his innocence that he was qualified to be a juror under section 4. The judge or the Commissioner would further decide whether a person was of good character, such as not having criminal record, before empanelling him as a juror.
III.Clause by clause examination of the Bill
16. Members present unanimously agreed to the Administrations proposed amendments to section 2 to spell out clearly that the proceedings referred to in the legislation covered the proceedings at a trial in the court as well as those at an inquiry under the Coroners Ordinance (Cap. 14).
Sections 4 and 4A
17. The Bills Committee would scrutinize in detail the proposed amendments to sections 4 and 4A at the next meeting when the Administrations written responses were expected to be available.
18. Members present unanimously agreed to the Administrations proposed amendments to section 5 to exempt the following persons from jury service:
- the legal advisers of the LegCo; and
- the spouses, instead of just the wives, of the Chief Justice, the Justices of Appeal and judges of the High Court.
IV.Date of next meeting
19. Members agreed that representatives from the Bar Association and the Law Society would be invited to attend the next meeting to be held on 1 May 1997 at 2:30 pm to see if the legal profession had further comments on the Bill. Another meeting was scheduled for 8 May 1997 at 4:30 pm.
20. There being no other business, the meeting ended at 2:05 pm.
Provisional Legislation Counicl Secretariat
21 June 1997
Last Updated on 18 October 1997